Honorable Patrick Leahy
Ranking Member
Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, D.C.  20510

Re: Nomination of Paul McNulty as Deputy Attorney General

Dear Chairman Specter and Senator Leahy:

The American Civil Liberties Union strongly urges you use tomorrow’s confirmation hearing to find out why U.S. Attorney Paul McNulty cannot resolve the same civilian torture and abuse cases that the military investigates and prosecutes. The military has already investigated and prosecuted many of its rank and file members and yet it seems that the Justice Department is incapable, or unwilling, to do the same for CIA agents. The CIA should not be getting a free pass from the Justice Department.

In a letter received by Senator Richard Durbin this month, the Justice Department responded to Senator Durbin’s request for an update on the numerous referrals to the Justice Department of alleged torture and abuse by CIA agents and civilian contractors. For the first time, the Justice Department stated that the Defense Department made referrals of eleven allegations of torture or abuse by civilians, and the CIA (referenced as “another agency”) made nine referrals.

The Justice Department stated that all but one of these twenty referrals were made to the U.S. Attorney for the Eastern District of Virginia, nominee Paul McNulty. The letter admits that more than 19 months later, “under the supervision of U.S. Attorney Paul McNulty,” there have been no indictments and two of the referrals are now closed without charges. At least several of the referrals were made to U.S. Attorney McNulty more than nineteen months ago, when Attorney General John Ashcroft announced that he was transferring all referrals of alleged torture by civilians to McNulty’s office.

According to an October 23, 2005 New York Times article, it appears that some of these referrals involved CIA or civilian contractors working alongside soldiers who have been indicted or prosecuted for their roles in torture or abuse. Autopsy records obtained by the ACLU through FOIA requests confirm CIA or civilian contractor involvement in torture or abuse related deaths of detainees, shown to be homicides. Though it is not clear which, if any, of the homicides were cases referred to McNulty, the autopsy records showing involvement of the CIA and civilian contractors in the interrogation deaths of detainees in Iraq and Afghanistan reaffirm the need for consistent standards in prosecuting civilians. At the same time that men and women in uniform have been convicted for their roles, McNulty’s team of prosecutors has not indicted any civilians. The only indictment of a civilian was by a federal prosecutor in North Carolina who indicted David Passaro before all other referrals were transferred to McNulty.

If confirmed, McNulty will directly supervise the Justice Department’s Criminal Division, all United States Attorneys, and the Director of the Federal Bureau of Investigation.  All authority to investigate and prosecute any person for violations of the Anti-Torture Act or other federal laws criminalizing the torture or abuse of detainees (other than violations of the U.S. Code of Military Justice that are prosecuted by the military itself) will be consolidated under McNulty. This is very troubling, given his poor track record for prosecuting civilians involved in the torture scandal.

There is an urgent public interest in investigating and prosecuting all civilians committing torture or abuse or conspiring to commit those crimes against persons being held by the United States as the best way to ensure that the government complies with the rule of law, and forever stops the use of torture and abuse.  A small number of enlisted men and women and a few lower-ranking military officers should not be the only persons prosecuted for crimes, if top officials and other civilians also engaged in criminal wrongdoing.  Americans deserve a Justice Department that is committed to the rule of law and equal justice, not one that is beholden to a political agenda.

Very truly yours,

Caroline Fredrickson  
Director                                       

Christopher E. Anders              
  Legislative Counsel