Honorable John D. Rockefeller IV

Select Committee on Intelligence

531 Hart Senate Office Building
Washington, D.C. 20510

Honorable Christopher S. Bond

Ranking Member

Select Committee on Intelligence

274 Russell Senate Office Building
Washington, D.C. 20510

June 19, 2007

RE: Nomination of John A. Rizzo for General Counsel of the CIA

Dear Chairman Rockefeller and Senator Bond:

The American Civil Liberties Union strongly urges you to oppose moving forward with the nomination of John A. Rizzo to be General Counsel of the Central Intelligence Agency until and unless the government takes the following steps: 

(i)                  publicly releases an August 2002 memorandum from the Justice Department to the CIA that authorizes specific interrogation techniques, including waterboarding;

(ii)                makes clear that none of the techniques specified in the August 2002 memorandum are authorized, or will be authorized, for use by any government employee or contractor;

(iii)               publicly releases a presidential directive for the CIA to detain and interrogate persons outside the United States; and

(iv)              has the Attorney General or his designee appoint an outside special counsel for the investigation and prosecution of criminal violations of federal laws against the torture or abuse of detainees.

These four steps will bring the nation closer to the objectives of stopping torture and abuse, and holding top government officials--and not just a small number of privates and sergeants and low-ranking officers--responsible for the government abandoning the Constitution and the rule of law in its detention and interrogation policies and practices.  The nation’s criminal laws should apply to all, without regard to rank or office.

Role of Rizzo in Torture and Detention Policies

According to several newspaper accounts, including a January 29, 2005 New York Times article and a December 30, 2005 Washington Post article, Rizzo had a significant role in developing and implementing the government’s torture and detention policies.  These policies appear to include authorization for a lengthy list of interrogation tactics that violate federal criminal law, and other detention and rendition practices that violate federal law. 

Despite four major developments in the legal landscape for torture and abuse--the replacement of a Justice Department memorandum on the definition of torture, enactment of the McCain anti-torture amendment, the Supreme Court’s holding in Hamdan that Common Article 3 of the Geneva Conventions applies to all detainees, and enactment of the Military Commissions Act--the CIA still has not made clear that none of the techniques specified in the August 2002 memorandum are authorized, or will be authorized, for use by any government employee or contractor.  At this point, there should be no dispute that all of the tactics are criminal under the War Crimes Act, the Anti-Torture Act, or general federal criminal statutes--which were made applicable to U.S. facilities overseas, by a jurisdictional provision in the PATRIOT Act that provides federal criminal jurisdiction for crimes committed by or against U.S. citizens on any property designated for federal use.

Need for Public Disclosure of August 2002 Justice Department Memorandum on Torture

During the confirmation hearing for Attorney General Gonzales, members of the Judiciary Committee closely questioned Gonzales on an August 1, 2002 Bybee memorandum narrowly defining torture.  That memorandum was withdrawn and replaced by the Justice Department less than a week before the Gonzales confirmation hearing.

However, there is a second August 2002 memorandum from the Justice Department to the CIA that approves a long list of interrogation techniques that reportedly includes practices that go beyond not only prior Justice Department and Defense Department practices, but also prior CIA practices.  A June 27, 2004 USA Today article reported that “a current Justice official who knows the memo’s content’s said it specifically authorized the CIA to use ‘waterboarding,’ in which a prisoner is made to believe he is drowning.”  According to a June 28, 2004 Washington Post article, other approved techniques include “refusal of pain medication for injuries,” and “’stress positions,’ light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.”

The Committee cannot fully determine the fitness of Rizzo to serve as General Counsel without securing the release of the memorandum and determining Rizzo’s role in its production or implementation.  Several news articles have reported that the CIA has suspended use of the approved techniques, after public disclosure of other torture memoranda, out of fear that they may be “unsanctioned and illegal.”  However, if Rizzo had any significant role in the approval of these methods, it will raise an obvious conflict of interest in whether Rizzo can oversee the investigation of wrongdoing by any civilians who may claim that their criminal acts were approved by Rizzo or other top officials. 

Need for Public Disclosure of a Presidential Directive for the CIA to Detain and Interrogate Persons Outside the United States

Although it has received far less public attention than the torture memoranda, the presidential directive for the CIA to detain and interrogate persons outside the United States is a critical component of the nation’s torture and detention policies--and Rizzo presumably had some role in either requesting or implementing the directive.  In response to the ACLU FOIA litigation, the CIA acknowledged the existence of "one document signed by President Bush that pertains to the CIA's authorization to set up detention facilities outside the United States," and identified it as "a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA's authorization to detain terrorists."   The CIA identified it as consisting of "a 12-page notification memorandum and an attached two-page cover memorandum"; the 12-page notification memorandum is "a memorandum from the President to the members of the [National Security Council] regarding a clandestine intelligence activity" and "the two-page cover memorandum is a transmittal memorandum from the Executive Secretary of the NSC to the Director of the CIA".

The CIA told the court in the ACLU FOIA litigation that the CIA is withholding the document from the public because it says that disclosure would "undermine the cooperative relationships that the United States has developed with its critical partners in the global war on terrorism".  At this point, the Committee should no longer agree to let the CIA hide illegal directives behind the cloak of diplomacy.

Need for an Outside Special Counsel

In the absence of an appointed outside special counsel, the only government agency that can prosecute civilians--including contractors, CIA employees, or other civilian government employees--is the Justice Department.  Within the Justice Department, the only prosecutors who can prosecute violations of criminal laws against torture or abuse are either in the Criminal Division of the Justice Department or in the various Justice Department offices of U.S. Attorneys for specific districts around the country.  Thus, the only way for civilians to be held responsible for criminal acts is for the Justice Department to investigate and prosecute.

Although Attorney General Gonzales has refused to appoint an outside special counsel for the investigation and prosecution of violations of federal laws against torture and abuse, the standard for an appointment has clearly been met, and the need is only reinforced if Rizzo is confirmed.  Unless an outside special counsel is appointed before the confirmation of  Rizzo, the Senate will not have any Executive Branch commitment to full accountability and responsibility for criminal wrongdoing by civilians.

Justice Department regulations require the appointment of an outside special counsel when a three-prong test is met.  First, a “criminal investigation of a person or matter [must be] warranted.”  28 C.F.R. 600.1.  Second, the “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department.”  Id.  Third, “under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”  Id.  If the regulation’s three-prong test is met, then the Attorney General must select a special counsel from outside the government, id. at 600.3, who would have the authority to secure necessary resources for the investigation and prosecution and have full investigatory and prosecutorial powers, id. at 600.3-600.6.

In the matter of whether civilians violated, or conspired to violate, the Anti-Torture Act or other federal laws against torture or abuse in the mistreatment of detainees, the three-prong test for appointing an outside special counsel is clearly met.  The extraordinary developments of the past three years, combined with the ongoing release of additional documents detailing widespread abuse and torture against persons held by the United States, highlight the need for an outside special counsel--particularly if Rizzo is confirmed as the CIA’s top legal officer.

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 once again 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.  Given the clear evidence of deliberate and widespread use of torture and abuse, and that such conduct was the predictable result of policy changes made at the highest levels of government, an outside special counsel is certainly in the public interest.  More than three years after the photos from Abu Ghraib were released to the world, only one civilian has been prosecuted for his role in torture and abuse--and no one from the CIA has been prosecuted.

Although the ACLU does not take positions on Executive Branch nominations, we urge you to oppose moving forward on this nomination until the government takes these important steps toward accountability.  Thank you for your attention to this matter, and please do not hesitate to call us at 202-675-2308 if you have any questions regarding this issue. 

Sincerely,

Caroline Fredrickson
Director

Christopher E. Anders
Legislative Counsel