Conyers, Nadler Formally Request DOJ Appoint Torture Special Prosecutor

By Jason Leopold

House Judiciary Committee Chairman John Conyers and other committee Democrats formally have asked Attorney General Eric Holder to appoint a special prosecutor to probe and, “where appropriate, prosecute,” Bush administration officials for the torture of “war on terror” detainees.

The letter, which renews a request that committee Democrats made unsuccessfully to Holder’s Republican predecessors, Alberto Gonzales and Michael Mukasey, comes in the wake of new disclosures, including release of four “torture” memos, a Senate Armed Services Committee report on detainee abuse, and a report by the International Red Cross on the treatment of 14 “high-value” detainees in U.S. custody.

Those disclosures, the letter said, “highlight the need for such an appointment,” especially given the role of Justice Department lawyers in sanctioning detainee treatment widely denounced as torture.

“There is abundant, credible evidence of torture and the cruel, inhuman, and degrading treatment of detainees, and criminal investigation is not only warranted, it is also required,” said the letter, which Conyers of Michigan; Rep. Jerrold Nadler of New York, chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties; and their Democratic committee colleagues sent Tuesday.

“The Geneva Conventions obligate High Contracting Parties like the United States to investigate and bring before our courts those individuals ‘alleged to have committed, or to have ordered to be committed’ grave breaches of those Conventions,” the letter said.

The letter noted that the Obama administration recently released four memos crafted by the Justice Department’s Office of Legal Counsel in 2002 and 2005 providing legal justifications for harsh interrogation techniques including slamming detainees into walls, putting them in stress positions, sticking them in boxes, depriving them of sleep, and waterboarding them, a near-drowning experience that has long been regarded as torture.

One of the “torture” memos, dated May 30, 2005, stated that two high-level detainees were waterboarded a combined 266 times in the span of one month.

“The Senate Armed Services inquiry into the treatment of detainees in U.S. Custody…confirms that these interrogation practices were developed at the request and authorized by high-ranking [Bush] administration officials, and that the abuse of detainees at Abu Ghraib and elsewhere can be linked to these policy decisions,” the letter said.

The formal request for a special prosecutor comes nearly a year after Conyers, Nadler and 54 House Democrats wrote to then-Attorney General Michael Mukasey urging him to investigate the growing body of evidence that Bush administration officials had sanctioned torture.

Not unexpectedly, Mukasey – a staunch defender of President George W. Bush’s theories about expansive presidential powers – ignored the letter. In recent months, despite even more evidence of torture, the calls for a special prosecutor has died down among many Democrats.

After disavowing the abusive tactics, President Barack Obama has indicated he would prefer not to dwell on the topic.

Conyers, however, has quietly been seeking a special prosecutor appointment since January. In an April 2 final report on Bush’s broad “war on terror” powers, the Michigan Democrat called on Holder to “appoint a Special Counsel to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”

Conyers’s report added that it “firmly rejects the notion that we should move on from these matters.”

A Justice Department spokesperson did not return calls for comment, but the agency has been considering a proposal contained in Conyers’s report that called for expanding a special prosecutor’s probe into the destruction of 92 interrogation videotapes, legal sources said.

U.S. Attorney John Durham, who was appointed by Mukasey last year to investigate the destruction of the CIA’s videotapes, had only been given the authority to probe whether the destruction amounted to criminal violations.   

Conyers had asked Mukasey to expand the probe of the tape destruction and allow Durham to investigate whether techniques depicted on the tapes, such as waterboarding, “constituted violations of federal law.” But Mukasey turned down Conyers request.

The torture issue is bound to heat up in the weeks ahead as the Defense Department is set to release dozens of photographs next month showing Iraq prisoners being abused by U.S. military personnel. Additionally, a report from the Justice Department’s Office of Professional Responsibility that is said to be sharply critical of the legal work that went into the preparation of the “torture” memos is scheduled to be released in the weeks ahead.

Last week, civil liberties groups presented Holder with a petition signed by 250,000 people demanding he appoint a special prosecutor to further probe the policy of torture enacted by the Bush administration.

At a congressional hearing, Holder told lawmakers that he would not “permit the criminalization of policy differences. However, it is my responsibility as the Attorney General to enforce the law. If I see wrongdoing, I will pursue it to the full extent of the law.”

In the letter, Conyers and Nadler said the appointment of a special prosecutor would ensure the torture issue is not “mired in politics.”

“Appointment of a special counsel insulates you and the Department from such claims, and instills confidence that the outcome of the investigation could not possibly have been predetermined or otherwise improperly influenced,” Conyers and Nadler told Holder.

However, former federal prosecutor Elizabeth de la Vega – a critic of Bush’s interrogation policies – warned that if a special prosecutor were appointed, the public might never learn the substance of an investigation because of grand jury secrecy.

“From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality,” de la Vega wrote.

“Victims and witnesses will be interviewed behind closed doors. And most will gladly heed the prosecution’s suggestion that, while they have no obligation to keep their testimony secret, there are very good reasons to do so. So there will be no public narrative, no official opportunity for victims to describe what was done to them by the US government.”

In the past, however, Congress has passed laws allowing special prosecutors in cases of government wrongdoing to make formal reports to the public at the end of their investigations.

The other Democratic members of the Judiciary Committee who signed the letter to Holder are: Robert Scott, chairman, Subcommittee on Crime, Terrorism and Homeland Security, Steve Cohen, Chairman, Subcommittee on Commercial and Administrative Law, Hank Johnson, chairman, Subcommittee on Courts and Competition Policy, Mel Watt, Sheila Jackson Lee, Maxine Waters, Robert Wexler, Pedro Pierluisi, Luis Gutierrez, Tammy Baldwin, Anthony Weiner, Linda Sánchez, Debbie Wasserman Schultz, Daniel Maffei.

However, the remaining seven Democrats on the committee–Howard Berman (CA), Rick Boucher (VA), William Delahunt (MA), Charlie Gonzalez (TX), Zoe Lofgren (CA), Adam Schiff (CA), Brad Sherman (CA)–did not sign the letter. It’s unclear if they refused to endorse the call for a special prosecutor. Spokespeople for the lawmakers were not immediately available for comment.

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