Congressman Jerrold Nadler, D-NY, sent a letter to Attorney General Eric Holder Tuesday reiterating his calls for a special prosecutor to probe the Bush administration’s use of torture against alleged “high-value” detainees captured in the “war on terror” and pressed Holder not to limit any possible investigation into interrogators who acted in “bad faith.”

It’s the second letter Nadler sent to Holder this year calling for a criminal investigation into the Bush administration’s torture policies. He also sent Holder a letter  on April 28 that was signed by other Democratic lawmakers who are members of the House Judiciary Committee. Nadler is chairman of the panel’s subcommittee on the Constitution, Civil Rights, and Civil Liberties Committee on the Judiciary.

That letter was sent a couple of weeks after the Obama administration released Justice Department memoranda which authorized CIA interrogators to torture “high-value” detainees and legalized domestic surveillance activities.

Tuesday’s letter comes on the heels of several news reports published last month stating that Holder is considering  the possibility of appointing a federal prosecutor.

But, as The Public Record reported last week, those same news reports, quoting unnamed sources, say that if Holder decides in the coming weeks to authorize a criminal investigation it would be limited to the “few bad apples” at the CIA who exceeded interrogation limits set by Justice Department attorneys in memos that authorized brutal acts of torture against suspected terrorists.

Nadler said he is “fundamentally concerned that the scope of the special counsel investigation will be too narrow.”

“There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation,” Nadler wrote. “This country has been instrumental in establishing the principle that high-ranking officials and lawyers who use legal reasoning to justify or otherwise authorize war crimes can, and should, be held legally accountable.

“The ban on torture is absolute and we have a legal obligation to investigate torture and all of those who may have been party to its use.”

Holder will likely make a decision if and when a CIA inspector general’s report is released that reportedly calls into question the legality of the agency’s torture of “high-value” detainees. The report is expected to be released at the end of August.

The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson’s inquiries.

Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who implemented the policies then the probe would likely amount to a whitewash, much like the Abu Ghraib case.

Of the 12 investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.

Such a limited approach would also ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.

Documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily “torture” updates of Abu Zubaydah, the alleged “high-level” terrorist detainee, who was held at a secret “black site” prison and waterboarded 83 times in August 2002.

Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also “had serious questions about the agency’s mistreatment of dozens more, including Khalid Sheikh Mohammed,” according to Jane Mayer, a reporter for The New Yorker and author of the book The Dark Side.

Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.

Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called “high-value” prisoners.

“I signed off on it; others did, as well, too,” Cheney said.

Waterboarding, in which a person is strapped down to a board with a cloth covering his face and then water is poured over it, is a torture technique dating back at least to the Spanish Inquisition. The victim feels as if he is drowning.

“I thought that it was absolutely the right thing to do,” Cheney said of what he called the “enhanced interrogation” of the detainees. “I thought the [administration’s] legal opinions that were rendered [endorsing the harsh treatment] were sound. I think the techniques were reasonable in terms of what they [the CIA interrogators] were asking to be able to do. And I think it produced the desired result.

“Was it torture? I don’t believe it was torture,” Cheney said. “The CIA handled itself, I think, very appropriately. They came to us in the administration, talked to me, talked to others in the administration, about what they felt they needed to do in order to obtain the intelligence that we believe these people were in possession of.”

In his letter to Holder, Nadler said he has two “fundamental concerns” with any investigation that is limited to “activities by interrogators, working in bad faith, that fell outside the ‘four corners’ of the legal memos” provided by lawyers from the Office of Legal Counsel of the Department of Justice.”

“First, such an investigation would fail to consider the possible violation of laws by high-ranking officials and lawyers who, through legal advice or otherwise, may have authorized torture,” he wrote.

Additionally, as he wrote in an April 28 letter to Holder, any criminal investigation into the Bush administration’s torture policies must also determine whether war crimes were committed.

“The Geneva Conventions obligate High Contracting Parties such as 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 War Crimes Act… specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The federal Torture Statute.. criminalizes torture and the conspiracy to commit torture.”

Nadler said if Holder decides to sign off on a criminal investigation a prosecutor must probe whether “federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees, including high-ranking officials and lawyers from the Department of Justice itself who allegedly approved or ordered the use of enhanced interrogation techniques that amounted to torture.”

“The ban on torture is absolute: ‘no exceptional circumstances whatsoever . . . may be invoked as a justification of torture,’ and ‘an order from a superior officer . . . may not be invoked as a justification of torture.’

“It may prove true that some interrogators faced difficult choices – pressure from superiors to obtain intelligence information from detainees coupled with directives or advice indicating that harsh interrogation methods were lawful – but limiting the scope of investigation to exclude individuals up front ignores the absolute bar on torture and our legal obligation to investigate torture, and is not necessary.

“If, indeed, laws were violated, the Detainee Treatment Act of 2005 provides a limited defense for those interrogators who show that they relied in good faith on legal advice in using interrogation methods that they did not know, and that a reasonable person would not know, were unlawful. These determinations are necessarily fact-based, and making ultimate decisions as to what the facts might prove or disprove, before any independent investigation has occurred, is unwarranted and would undermine the credibility of any investigation.”

In April, Holder declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” What that meant was that a possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.

Last year, in the heat of the presidential campaign, Holder, who was a featured speaker at the American Constitution Society’s annual convention, told a packed crowd that the “American people are owe[d] a reckoning” as a result of the “abusive” and “unlawful” policies of the Bush administration.

“Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution,” Holder said in June 2008. “We owe the American people a reckoning.”

Obama, however, has been resistant to any investigation that would “look backward” and divert attention away from his domestic agenda.

Yet, Nadler said that can’t happen without a wide-ranging investigation.

“I appreciate and share the desire to put this unfortunate chapter in our nation’s history behind us, but we cannot do so without fulfilling our legal and moral obligation to investigate whether laws were broken by those who conducted and those who authorized the enhanced interrogation practices.”