Features

July 22, 2009

Q&A: The Appointment of a Special Counsel To Investigate Interrogation-Related Crimes

U.S. Attorney General Eric Holder is said to be considering appointing a Special Counsel to investigate and prosecute crimes related to the interrogation of detainees under U.S. counter-terrorism policies. The appointment of a Special Counsel should be done without delay, and would mark an important step toward addressing unlawful interrogation practices that have caused harm to victims, the rule of law, and U.S. credibility at home and abroad. 

1. What types of crime should be investigated?

Declassified U.S. government documents, press accounts, official government inquiries, Congressional investigations, and reports by the International Committee of the Red Cross and others provide significant evidence that post-9/11 detainee abuses-including torture, cruel, inhuman and degrading treatment-were the product of decisions of high level government, intelligence and military officials. Evidence thus far tends to implicate top level officials in the White House, the Department of Justice, the CIA, and the Department of Defense who sanctioned and officially approved interrogation practices.

Crucially, the U.S. government's decision not to apply the Geneva Conventions to individuals accused of involvement with al Qaeda or the Taliban enabled it to devise policies such as "enhanced interrogation," prolonged arbitrary detention and enforced disappearance across a network of interrogation centers and prisons in which horrendous abuse of detainees was routine and in some cases even resulted in death. It is well-documented that abusive interrogation techniques were used throughout the world, including in Guantanamo, Iraq, Afghanistan and CIA detention centers. These actions indicate a pattern of abuse that could not have occurred without the knowledge and explicit or implicit sanction of those higher up in the chain of command.

These are "system" crimes, that is, large scale crimes perpetrated as part of officially sanctioned policy. Although individuals are the direct perpetrators of any crime, system crimes are distinguished by the fact that they are officially devised and sanctioned-whether explicitly or implicitly-by policymakers, commanders, and other officials in power. 

2. Why investigate abuses by U.S. personnel as system crimes?

The legal obligations of the United States to prosecute torture are incontrovertible. International treaties binding on the United States, such as the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Geneva Conventions give rise to legal obligations to prosecute. Further, U.S. federal and military laws and the Constitution prohibit ill treatment and criminalize torture. If crimes have been committed, the question should not be why prosecute, but, why is criminal investigation not underway already?

Strong policy reasons also exist to prosecute these cases. Prosecutions of serious human rights violations-crimes under U.S. law-convey to the U.S. public and to members of the international community a disapproval of violations and support for the centrality of certain democratic values, including the prohibition on torture. The reasons to investigate and prosecute as appropriate should not be viewed purely on an internal, societal basis but also in terms of the impact of such prosecutions throughout the whole world. The United States has supported accountability for human rights crimes in varied contexts and has been at the forefront of encouraging other nations to come to terms with their painful histories. The United States must reclaim its own moral force by applying to itself the same standards that are expected of other countries, including those with less stability or less well-developed judicial systems.

3. Who should be the focus of criminal investigations?

Evidence indicates that senior officials who devised official counterterrorism policy enabling abuses-as well as lawyers who gave legal approval to the policy-may bear the most responsibility, along with high level military and intelligence officials, and should be the subject of criminal investigations. Focusing on those with the greatest degree of responsibility fits with the central objective of prosecutions and is responsive to the nature of system crimes. Criminal justice will be most effective, and criminal conduct most effectively condemned, if efforts are aimed at those at the top, i.e. those responsible for the formulation of the policies and strategies that led to the crimes. 

It is crucial that investigations not be limited to low or mid-level personnel. The sole pursuit of perpetrators of lower rank may lead to a perception (if not a reality) of scapegoating, as occurred with the prosecutions of low-level soldiers after the revelation of abuses at Abu Ghraib prison. Such prosecutions give the impression that the problems were with a "few bad apples" rather than a policy. This is not to say that all consideration of pursuing lower-level perpetrators ought to be abandoned, since understanding the role of direct perpetrators and their supervisors composes an important component of prosecutions. However, the overall focus should be on those bearing the greatest degree of responsibility. 

4. Hasn't there already been an adequate response?

Despite substantial evidence and documentation of abuses, few individuals have been held criminally responsible for ordering or carrying out these acts. Criminal prosecutions have almost exclusively been of low-level military perpetrators, often conducted in an ad hoc fashion. The prosecutions for abuses at Abu Ghraib represent the most extensive example of criminal accountability for detainee abuse, but they also indicate a broad failure to engage in a systematic investigation and prosecution of both direct perpetrators and those further up the chain of command. This dissonance-between the systemic nature of abuses in Iraq, Afghanistan, Guantánamo Bay, and CIA detention and the poor record of prosecuting abusers-leads to a record of de facto impunity over the past eight years.

5. Why would an investigation require a Special Counsel?

To ensure the full credibility of a criminal investigation, it must be independent. The determination to launch an investigation of these crimes would be an important step in reestablishing the independence of the Office of the Attorney General and trust in the current Attorney General's ability to uphold the rule of law. However, given the possibility that any prosecutions-no matter how well substantiated-will be criticized as politically motivated, the investigation must be free from even the appearance of a conflict of interest. A Special Counsel, therefore, is the best way to investigate and hold to account the individuals bearing greatest responsibility for interrogation-related crimes.

6. How can the Attorney General best guarantee the independence of a Special Counsel?

The Attorney General should appoint a Special Counsel under the relevant regulations (28 C.F.R. §§ 600.1 - 600.10) rather than make an ad hoc appointment, since the regulations provide greater protections for Special Counsel. For example, the regulations set out specific grounds for removal, while an ad hoc appointee is presumably removable for any reason, thus is less insulated from political pressures. Also, the regulations provide an important inter-branch check; the Attorney General must explain to Congress any decision to override or remove the Special Counsel. 

 7. What should be the scope of the Special Counsel's investigation?

According to recent reports, the Attorney General may consider authorizing a criminal inquiry focused only on persons who acted beyond the parameters for interrogation set by Justice Department lawyers under the Bush Administration. The implication is that policy and decision makers, the lawyers who supplied legal cover for detainee abuses, and interrogators and their superiors who relied on that legal advice, would escape scrutiny.   To limit the scope of the investigation in this manner would not only unduly limit a Special Counsel's ability to fully investigate the crimes; it would also seemingly presume that no crimes occurred within the scope of that policy, which may well be counter to the facts and the law. As a result, a limited investigation of this nature could effectively condone the Bush administration's efforts to justify and protect acts which were in fact illegal.  

A Special Counsel's mandate must allow him or her to follow the evidence; to investigate interrogation-related crimes committed wherever and by whomever. A Special Counsel should be empowered to investigate lower-level officials and contractors as appropriate but the investigation must not be limited to them.

8. How should the Special Counsel's office be staffed?

The Special Counsel should avoid staffing his or her office mainly with employees from federal agencies implicated in interrogation-related crimes. If exceptions must be made-given the breadth of agency involvement in developing and implementing detention and interrogation policies, and the fact that any investigation would benefit from the knowledge and expertise of certain federal employees-such staff should be vetted carefully. If a Special Counsel determines that staff should be hired from outside government, the Attorney General should support his or her efforts in that regard notwithstanding the Special Counsel Regulations' presumption that most of a Special Counsel's staff will be detailed from within the Justice Department.

 

The work of the ICTJ U.S. Accountability Project is supported by grants from the Open Society Institute, the John Merck Fund, and individual donors.