[Note: The following letter was sent to 83 of the 93 United States Attorneys today, which is the ninth anniversary of the first prisoners arriving at Guantanamo Bay Detention Center. Witness Against Torture and other groups will be demonstrating about Guantanamo and related issues in Washington, D.C., over the next 12 days.]
Dear United States Attorneys:
Today is a somber and symbolic day. Nine years ago today, on January 11, 2002, the first prisoners were brought to Guantanamo Bay Detention Camp in our “war on terror.” The intent was clear. By placing prisoners in Guantanamo and in a global system of prisons, we were trying to avoid the constraints of long-established and well-founded legal principles. We kept prisons secret, we limited access by the International Committee of the Red Cross, we denied prisoners a proper review of the validity of their detention, and we tortured people in our custody. We tried to enhance our security by evading the law. Instead, we have endangered our security and weakened a core concept of democracy — the rule of law.
From today until January 22, 2011, the two-year anniversary of President Obama’s promise to close Guantanamo within one year, people in Washington, D.C., will be fasting, lobbying and demonstrating for justice, transparency and accountability. We in Minnesota and others across the country will be participating in support actions. By remembering the oath you took to support and defend the Constitution, you could do the same.
National security and justice. Attorney General Holder has emphasized the high priority now given by the Department of Justice to national security matters. But our willingness to ignore our most fundamental legal obligations has made us less safe. It has diminished cooperation from allies, imperiled our soldiers, decimated our human rights standing in the world, and — in the words of former Secretary of Defense Donald Rumsfeld — created more terrorists than we are killing.
For the Department of Justice, even more critical than to ensure national security is to seek justice and to uphold the rule of law. On the issue of torture, we have fallen far short. No one who is aware of the claims of F.B.I. interrogators, Pentagon investigations, statements of both Military Commission and Article Three judges, inspectors general reports, the Office of Professional Responsibility Report on the OLC’s memos on interrogation, and public statements by government officials would have any doubt that we did in fact torture people. It is almost beyond belief that given the amount of publicly available evidence, not a single person has ever been charged under the Federal Torture Statute with torture committed on behalf of the United States.
Given your oath, we hope that you have engaged in extensive criminal investigations into what seems like overwhelming evidence. We trust that at least one of you has questioned Major General Antonio Taguba regarding what he meant when he wrote, “The Commander-in-Chief and those under him authorized a systematic regime of torture.” Or that several of you, when former President Bush has been in your jurisdictions, have investigated what he meant when he proudly proclaimed he authorized waterboarding. As you know, it is President Obama’s and Attorney General Holder’s position that waterboarding is torture.
DOJ has actively opposed justice. If you have not acted, it would not be a shock to those familiar with how the Department of Justice has dealt with the torture issue so far. Not only has it been conspicuous by its failure to act, but regrettably it also has acted affirmatively to deny access to facts about government misconduct and to deny justice to torture victims. For example, it has argued that photographs of prisoner abuse should not be released to the public. We assume the Justice Department also backed the Obama administration’s support of Congressional passage of a law that retroactively exempted those photographs from the Freedom of Information Act. Incredibly, the arguments put forth by the Justice Department for suppressing this release of information would mean the more egregious the government misconduct, the more it must be kept secret from the American people.
Furthermore, time after time, the Justice Department has argued in court that under doctrines of immunity, state secrets, “special factors,” or the “enemy combatant” designation, survivors of U.S.-committed torture — some of whom were totally innocent of any wrongdoing — should have no recourse in our judicial system. As we are sure you know, this directly contradicts Article 14 of the Convention Against Torture, which says: “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.”
Moreover, the Obama administration — no doubt with the complicity of the Department of Justice — has pressured officials in other countries to restrict, if not shut down, investigations of our torture program or even their own involvement in such crimes. The concept of rule of law continues to take a beating.
Durham investigation. Some of you may feel the proper place for torture-related criminal investigations is with Assistant U.S. Attorney John Durham. But does his investigation include the policy makers who may have authorized, ordered, “legalized,” or conspired to commit torture? State Department legal advisor Harold Koh has said it does. At a town hall meeting in conjunction with the November 5, 2010, U.S. appearance before the United Nations Human Rights Council, he answered a question about accountability for policy level officials. With a Justice Department representative at the same meeting who did not object, Mr. Koh said the Durham investigation included these civilian policy makers.
But as you know, that investigation does not include those who relied on the advice of the since withdrawn Office of Legal Counsel memos. When Attorney General Holder expanded Mr. Durham’s investigation on August 24, 2009, this is what he said: “I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.”
So seemingly, the only way civilian policy makers would be included in the Durham investigation would be if they authorized an OLC-sanctioned policy that constituted torture, and then authorized exceeding their initial authorization. That hardly seems likely. Maybe the OLC lawyers themselves could be included in Mr. Durham’s investigation — especially if they acted in bad faith — but Associate Deputy Attorney General David Margolis’ overriding the findings of the Office of Professional Responsibility makes that highly unlikely as well.
“Advice of counsel.” Even if the Durham investigation does not include the architects of the U.S. torture program, some argue that “advice of counsel” precludes prosecuting these officials anyhow. However, we are sure you are aware the United States has prosecuted people in the past — even for similar offenses — when “advice of counsel” or related arguments were made.
Second, even if an “advice of counsel” argument is applicable to the U.S. torture policy, proving the negative is not an element of the offense. Rather, “advice of counsel” is a possible affirmative defense of someone who may be charged and should not bar prosecutions.
Third, there is evidence that the “legal advice” was not legal advice at all. John Yoo himself notes that he was involved in policy discussions with White House officials in the course of writing the August 1, 2002, memos. The White House was making sure it would get the advice it sought. There is also evidence that actions constituting torture were authorized, ordered, and carried out before the “relied on” OLC memos were written. The memos may well have been designed to ratify acts already done or to rationalize what the policy officials wanted to do. It may have been one big conspiracy.
But the most telling evidence that “advice of counsel” is a false claim are the recent comments of former President Bush, the chief authorizer in this possible conspiracy. In an interview with NBC’s Matt Lauer, broadcast on November 8, 2010, President Bush was asked about the waterboarding he had authorized: “You’d make the same decision again today?” He responded, “Yeah, I would.”
President Bush surely must now know that subsequent to his involvement in waterboarding, the Justice Department during his own administration determined that the OLC legal advice was faulty and no longer operative. So whether he is saying he would do the same thing literally today, or he is saying he would have done the same thing at the time — with his current knowledge that the legal advice would later be deemed incorrect — it is a clear admission that in authorizing the waterboarding, he was not relying on the legal advice. By his own words, he would have done it regardless.
Eight United States Attorneys. We know you must appreciate the importance of the independence of the Justice Department in our system of government. By the nature of the office, the President is a political person. For all sorts of political reasons, he might be unwilling to hold people accountable for serious violations of the law. Neither is the Attorney General himself beyond politics. If you look at Attorney General Holder’s statement on the expansion of the Durham investigation, you will find phrases and sentences that are virtually indistinguishable from President Obama’s. This means that you are the bastions of independence within the Justice Department. At your best, you are a check on governmental lawlessness — within the Executive Branch, but a check nonetheless.
During the Bush administration, eight United States Attorneys recognized their independence. They resisted the political pressures coming from the White House, from the then all-too-political Attorney General, and from others. They remembered their oaths and to whom and to what they were responsible. Those are the U.S. Attorneys that history will remember.
It has often been said that every United States Senator looks at himself or herself in the mirror every morning and sees a future United States President. Maybe you, like many U.S. Attorneys, have similar ambitions about becoming federal judges. What we are going to suggest may not help you achieve that goal. But at the same time, you could be earning much more in the private sector than you currently are earning or would earn as a federal judge. This must demonstrate any ambition for a higher position is countered by an attachment to a higher calling.
We request that you pay homage to that higher calling. We request that you announce you are opening an investigation into a possible conspiracy by high United States government officials to commit torture. We do not ask you to refer to any evidence — just that you say you are initiating an investigation, as the Justice Department has done on numerous occasions. No single act you could do would enhance national security or strengthen the rule of law more than this simple announcement. Such an investigation would be in keeping with Attorney General Holder’s priorities for the Department of Justice, the oath you took to the Constitution, and your responsibility to seek justice.
If any of you would like to know whether members of this alleged conspiracy — their names are well known — reside in your jurisdiction, or when one of these alleged conspirators is likely to visit your jurisdiction, feel free to email us or call Chuck at 612-871-8793. He will be more than happy to try to accommodate such a request.
Dave Bicking, Terry Burke, Steve Clemens,
Ann Galloway, Gerald Gannan, John Graber,
Patty Guerrero, Robert Heberle, Melissa Hill,
Michael Jensen, Sonja Johnson, Gary W. King,
Polly Mann, Sue Ann Martinson, Coleen Rowley,
Willard Shapira, Bill Sorem, and Chuck Turchick