Senate Republican Whip Jon Kyl of Arizona is one of nine senators who signed a letter sent to Attorney General Eric Holder on Wednesday urging him not to appoint a special counsel to investigate torture.
Nine Republican lawmakers sent a letter to Eric Holder on Wednesday saying the US could face a terrorist attack if the attorney general appoints a special prosecutor to investigate the CIA's use of torture against "war on terror" suspects.
Holder is under pressure to resist launching a criminal probe, even one limited to rogue CIA interrogators. At the same time, he is facing mounting pressure from some prominent Democrats and civil liberties and human rights groups to not only sign off on a criminal investigation, but to expand it to include top Bush administration officials.
The latest correspondence came on Wednesday in a letter to the attorney general that said an investigation into the CIA's interrogation practices, no matter how limited in scope, would jeopardize the "security for all Americans, chill future intelligence activities," and could "leave us more vulnerable to attack."
The senators resorted to fear-mongering, invoking the terrorist attacks on 9/11 to try and dissuade Holder
"We are deeply concerned by recent news reports that you are 'poised to appoint a special prosecutor' to investigate CIA officials who interrogated al Qaeda terrorists. Such an investigation could have a number of serious consequences, not just for the honorable members of the intelligence community, but also for the security of all Americans," the letter said.
The letter was sent to Holder by Senate Republican Whip Jon Kyl of Arizona, Sen. Kit Bond (R-Missouri), vice chairman of the Senate Intelligence Committee, Sen. Jeff Sessions (R-Alabama), ranking member of the Senate Judiciary Committee, and was also signed by Sens. Richard Burr (R-North Carolina), Saxby Chambliss (R-Georgia), Tom Coburn (R-Oklahoma), John Cornyn (R-Texas), Chuck Grassley (R-Iowa) and Orrin Hatch (R-Utah).
"The 9/11 Commission emphasized that keeping our country safe from foreign attack requires that the Justice Department work cooperatively with the intelligence community, but the appointment of a special prosecutor would irresponsibly and unnecessarily drive a wedge between the two ...
"We will not know the lost opportunities to prevent attacks, the policies to protect the nation left on the table, due to fear of future policy disagreement being expressed through an indictment. It is hard to imagine how the Justice Department could take that risk after September 11, given that the foremost duty of the Department is to protect Americans."
The timing of the letter coincides with the expected public release next Monday of a 2004 CIA inspector general's report that called into question the legality of the Bush administration's interrogation program.
Heavily redacted portions of Helgerson's 200-page report were released to the ACLU in May 2008 in response to a Freedom of Information Act request, but the ACLU appealed the Bush administration's extensive deletions and the Obama administration responded to that appeal with a promise to review the materials at issue and declassify, at the very least, portions of it to the civil liberties group.
The Justice Department has delayed turning over the report three times since then. Last month, a federal court judge gave the CIA until August 24 to declassify the report.
Amrit Singh, an ACLU staff attorney, said on Wednesday she believes the CIA will turn over the report next week, but she did not know whether it would be redacted yet again when released.
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.
His report reportedly says the techniques used on the prisoners "appeared to constitute cruel, inhumane and degrading treatment, as defined by the International Convention Against Torture."
Holder started to consider the need to appoint a special counsel to conduct a criminal investigation after he read Helgerson's findings, according to published reports.
The Republican senators, in their letter to Holder on Wednesday, said the CIA IG report "has been available to the Justice Department for more than five years" and should not be used as a basis to "justify" the appointment of a special prosecutor.
The IG report has "been available to the Justice Department for more than five years," the senators wrote. "Three former Attorneys General and numerous career prosecutors have examined the findings of that report and other evidence and determined that that facts do not support criminal prosecutions.
"It is difficult to understand what rationale could drive the Justice Department to now reverse course, reopen a five-year-old matter, and tarnish the careers, reputations, and lives of intelligence community professionals ...
"The intelligence community will be left to wonder whether actions taken today in the interest of national security will be subject to legal recriminations when the political winds shift. Indeed, there is a substantial risk that the mere prospect of criminal liability for terrorist interrogations is already impending our intelligence efforts, as demonstrated from the fact that CIA officials increasingly feel compelled to obtain legal defense insurance."
The senators are wrong. Jane Mayer, in her book "The Dark Side," said there was a mountain of evidence to support prosecutions and a belief by some "insiders that [Helgerson's investigation] would end with criminal charges for abusive interrogations."
But top Justice Department officials, including former head of the criminal division Michael Chertoff, his deputy Alice Fisher and Deputy Attorney General Paul McNulty, allowed the cases to languish and may have even scuttled the probes to protect the Bush White House.
McNulty resigned in disgrace two years ago and is under scrutiny by a special prosecutor investigating the firings of nine US attorneys. McNulty faces obstruction of justice and perjury charges related to his February 2007 testimony to Congress about the ordeal.
In an interview with Harper's magazine last year, Mayer said Helgerson "investigated several alleged homicides involving CIA detainees, and that Helgerson's office forwarded several to the Justice Department for further consideration and potential prosecution.
"The only case so far that has been prosecuted in the criminal courts is that involving David Passaro - a low-level CIA contractor, not a full official in the Agency. Why have there been no charges filed? It's a question to which one would expect that Congress and the public would like some answers.
"Sources suggested to me that, as you imply, it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned. Chertoff's role in particular seems ripe for investigation. Alice Fisher's role also seems of interest. Much remains to be uncovered."
Mayer also reported that another possible reason that the Justice Department investigations went nowhere was that Vice President Cheney intervened and demanded that Helgerson meet with him privately about his investigation. Mayer characterized Cheney's interaction with Helgerson as highly unusual.
Cheney's "reaction to this first, carefully documented in-house study concluding that the CIA's secret program was most likely criminal was to summon the Inspector General to his office for a private chat," Mayer wrote in her book "The Dark Side."
"The Inspector General is supposed to function as an independent overseer, free from political pressure, but Cheney summoned the CIA Inspector General more than once to his office."
"Cheney loomed over everything," one former CIA officer told Mayer. "The whole IG's office was completely politicized. They were working hand in glove with the White House."
In their letter, the senators also said "media reports also suggest that the interrogation of Khalid Sheikh Mohammed (KSM), the mastermind of the September 11 attacks, would be a primary focus of the investigation that you envision."
Mohammed was waterboarded 183 times in the span of a single month, far above the legal limit imposed by the August 2002 torture memos. Helgerson, Mayer wrote in her book, "had serious questions about the agency's mistreatment of dozens more, including Khalid Sheikh Mohammed."
The Republican lawmakers said, "the interrogation of KSM, and others like him, produced information that was absolutely vital to apprehending other al Qaeda terrorists and preventing additional attacks on the United States."
They then go on to blame the Obama administration for failing to provide justice for the victims of 9/11.
"It is ironic that the Obama Administration, which has delayed justice for the victims of September 11 by suspending the trial of KSM, may soon be charging ahead to prosecute the very CIA officials who obtained critical information from him," the Republican lawmakers wrote. "That KSM's treatment is receiving more prompt attention from the Justice Department than his depraved acts cannot be justified."
On the other end of the political spectrum, Rep. Jerrold Nadler, a New York Democrat and chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, said in a letter to Holder on August 4 that if he does appoint a special counsel to probe the Bush administration's program of torture, it must include the top officials who created and implemented the policy.
"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.
"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," 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."
Nadler, House Judiciary Committee Chairman John Conyers and about a dozen other Democrats on the committee sent a similar letter to Holder earlier this year.
President Obama has already stated numerous times that he does not support a truth commission or any effort that would result in looking "backwards" into the Bush administration's policies.
Considering the backlash the Obama administration and Democrats faced from their Republican colleagues this month over a proposal to reform the health care industry, and the extreme partisanship over Obama's domestic policies in general, it's entirely possible that the fear-mongering in the letter sent to Holder on Wednesday could have an impact on his decision.
At the Netroots Nation conference last week in Pittsburgh, Nadler said, "As difficult and traumatic" a criminal investigation "may be for the nation we must proceed."