Democrats Must Demand Special Prosecutor for Torture

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    Bob Fertik
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On January 6, Rep. John Conyers introduced H.R. 104 to create a National Commission on Presidential War Powers and Civil Liberties. According to Jason Leopold, the "bipartisan" commission would

probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers,” including torture of detainees and warrantless wiretaps.

Conyers believes the commission's work would not be at odds with criminal prosecution: 

While Conyers’s plan falls short of the criminal probe that civil rights groups have sought, neither would it prevent a criminal investigation by Obama’s Justice Department if the new administration moves in that direction, said two aides on Obama’s transition team who spoke on condition of anonymity.

Should progressives support or oppose H.R. 104? On the question of torture, warrantless wiretapping, and other indisputable crimes, progressives must oppose H.R. 104 because it would only engage in a coverup and delay or undermine needed criminal prosecutions by a non-partisan Special Prosecutor.

Think back to past commissions: does anyone believe the Warren Commission revealed the hard truth about the assassination of JFK, with Arlen Specter's "magic bullet" theory? More recently, does anyone believe the 9/11 Commission revealed the hard truth about the Bush Administration's failures to act on multiple warnings prior to 9/11, since no one in the entire government was held accountable?

On the question of torture, we already know how George Bush and Dick Cheney will defend their crimes, because they presented their defense on national TV. First they say "we don't torture," dismissing all evidence that we do. Then they say waterboarding was only used on 3 Al Qaeda operatives under strict professional control, while ignoring the dozens of prisoners who were tortured to death. They say waterboarding and other forms of torture produced high-quality intelligence that saved American lives, even though intelligence professionals say the useful information from Al Qaeda operatives was acquired freely by journalists earlier, while the information produced under torture was completely useless.

On the question of warrantless wiretapping, the Bush-Cheney defense is similar albeit more vague: without exposing the details of their illegal program, they insist "it saved lives."

In other words, George Bush and Dick Cheney are lying. Is there any chance a bipartisan commission will reject these lies and demand the truth? No chance whatsoever, because the Republicans on the commission are guaranteed to remove every single word that suggests criminal or moral liability for Bush, Cheney, David Addington, and other high-level officials. Even the Democrats will have an incentive to engage in a coverup because key Democrats on the intelligence committees were briefed on some (if not all) torture and wiretap techniques and failed to stop them.

The only way to get to the truth is through a criminal investigation by a Special Prosecutor like Patrick Fitzgerald who refuses to accept lies. Fitzgerald proved his mettle in the investigation of the outing of Valerie Plame; when Scooter Libby refused to tell him the truth, he convinced a jury to convict Libby on 4 of 5 counts of lying and obstruction of justice. Of course Libby never did tell the truth, but that's only because George Bush kept him out of jail to keep him from singing. Starting on January 21, witnesses called by a Special Prosecutor will no longer have George Bush to protect them.

The demand for a Special Prosecutor to investigate torture is nothing new. On 6/6/08, Rep. John Conyers and 55 other House Democrats urged Attorney General Michael Mukasey to appoint a Special Prosecutor to investigate torture under the Bush Administration (see letter below). Sadly, Mukasey chose instead to coverup the crimes of the Bush Administration, thereby making himself a co-conspirator in the Bush Administration's crimes. On 12/3/08 he told reporters,

"There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful,” Mukasey said.

The Yoo-Bybee memos are self-evident frauds; this same "lawyers defense" was rejected at the Nazi war crimes trial in Nuremberg.

So what actions should progressives support? When Mukasey is replaced by Attorney General Eric Holder, House Democrats must re-send their letter below to Holder and demand immediate action. Moreover, Senate Democrats must obtain a commitment to appoint a Special Prosecutor during Holder's confirmation hearings.

Having said all this about torture and wiretapping, it is possible that Conyers' National Commission on Presidential War Powers and Civil Liberties is meant to cover a broader range of controversial but non-criminal policies which deserve fuller scrutiny and analysis. But if such a commission is appointed, it must be done after a Special Prosecutor is appointed, and structured to steer entirely clear of criminal investigations to avoid the problems which undermined the Iran-Contra investigation by Special Prosecutor Lawrence Walsh.

June 6, 2008

Hon. Michael Mukasey
Attorney General of the United States

Dear Mr. Attorney General:

We are writing to request that you appoint a special counsel to investigate whether the Bush Administration's policies regarding the interrogation of detainees have violated federal criminal laws. There is mounting evidence that the Bush Administration has sanctioned enhanced interrogation techniques against detainees under the control of the United States that warrant an investigation.

Congress is already aware of a pattern of abuse against detainees under the control of the United States and the Bush Administration. In 2004, prisoners being held at Abu Ghraib prison were subjected to abuse, sexual exploitation and torture. At the Guantanamo Bay Detention facility, prisoners have been held indefinitely, subjected to sleep deprivation, and drugged against their will. An independent investigation by the International Committee of the Red Cross documented several instances of acts of torture against detainees, including soaking a prisoner's hand in alcohol and lighting it on fire, subjecting a prisoner to sexual abuse, and forcing a prisoner to eat a baseball. In October 2005, the New York Times reported that three detainees were killed during interrogations in Afghanistan and Iraq by CIA agents or CIA contractors.

We believe that these events alone warrant action, but within the last month additional information has surfaced that suggests the fact that not only did top Administration officials meet in the White House and approve the use of enhanced techniques including waterboarding against detainees, but that President Bush was aware of, and approved of the meetings taking place. This information indicates that the Bush Administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law. We believe that these serious and significant revelations warrant an immediate investigation to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act (18 U.S.C. 2441), the Anti-Torture Act, (18 U.S.C. 2340-2340A), and other U.S. and international laws.

Despite the seriousness of the evidence, the Justice Department has brought prosecution against only one civilian for an interrogation-related crime. Given that record, we believe that it is necessary to appoint a special counsel in order to ensure that a thorough and impartial investigation occurs, and that the prosecution of anyone who violated federal criminal statutes prohibiting torture and abuse is pursued if warranted by the facts.

Again, we strongly urge that you act in a timely manner to appoint a special counsel. We look forward to hearing from you in response to our request.


Jan Schakowsky
John Conyers
Jerrold Nadler
Barney Frank
Jim Oberstar
Sheila Jackson Lee
Carolyn Maloney
Peter DeFazio
Ed Markey
Maurice Hinchey
Jim McGovern
Lynn Woolsey
Jim McDermott
Bob Filner
Tammy Baldwin
Keith Ellison
Steve Cohen
John Olver
Betty McCollum
Sam Farr
Jim Moran
Betty Sutton
Bobby Scott
Dennis Kucinich
Lois Capps
Jose Serrano
William Jefferson
Michael Capuano
Pete Stark
Lucille Roybal-Allard
John Tierney
George Miller
Luis Gutierrez
Steven Rothman
Rush Holt
David Wu
Paul Hodes
Andre Carson
Robert Wexler
Lloyd Doggett
Diana DeGette
Raul Grijalva
John Larson
Rick Boucher
Hilda Solis
Linda Sanchez
Danny Davis
Rosa DeLauro
Mike Honda
Eleanor Holmes Norton
Peter Welch
Tim Ryan
Barbara Lee
Zoe Lofgren
Chaka Fattah
David Price