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VI. The Need for a Special Prosecutor

This report has set forth the publicly-available evidence against two senior civilian leaders and two top military generals in connection with the widespread abuse of detainees in U.S. detention. Human Rights Watch expresses no opinion about the ultimate guilt or innocence of these men, particularly because so much evidence has been withheld and so many questions remain unanswered, but does believe that a criminal investigation is called for with respect to each of them. There may be other senior officials whose conduct also justifies an investigation.

Because there is no realistic possibility that the U.S. Attorney General or the U.S. military will investigate these senior leaders for the crimes described above, the appointment of a special prosecutor is warranted.

Under the Convention against Torture and the Geneva Conventions, the United States is required to prosecute acts of torture and war crimes.

Article 12 of the torture convention provides that:

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Similarly, the Geneva Conventions require the United States to investigate allegations of “grave breaches” of the Geneva Conventions, ³⁴⁹ including “willful killing, torture or inhuman treatment” of POWs and civilians qualified as “protected persons,” and to prosecute, or extradite to another state that will prosecute, perpetrators of “grave breaches.”³⁵⁰

Under U.S. law, as described above, there are two avenues to prosecution for the alleged crimes described in this report — the civilian and the military justice systems.

Under the civilian justice system, criminal enforcement is committed to the U.S. Department of Justice and, in particular, to the Attorney General — Alberto Gonzales.

Under the military justice system, criminal investigations may be undertaken by command authority, with the Secretary of Defense — Donald Rumsfeld — as the ultimate authority.

Given that the two people who can trigger investigations and prosecutions for the alleged war crimes and acts of torture discussed in this report have been deeply involved in the policies leading to these alleged crimes, if not in the crimes themselves, it is extremely unlikely that any such investigations will be undertaken.

Human Rights Watch, together with the American Bar Association, the American Civil Liberties Union, the Center for Constitutional Rights, Human Rights First, and other groups, has called for the appointment of a special prosecutor to pursue these crimes.

Under the former Independent Counsel Act (28 U.S.C. § 591, expired 1999), it might have been possible to compel the appointment of an independent counsel by a special panel. That act expired in 1999, however.

Nevertheless, U.S. Department of Justice regulations call for 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.”³⁵¹ 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.”³⁵² Third, “under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”³⁵³ If the regulation’s three-prong test is met, then the Attorney General is to select a special counsel from outside the government.³⁵⁴

In this case, it is easy to see how those three prongs are met. A criminal investigation is warranted, as outlined above. Attorney General Gonzales’ conflict of interest is plain. The public interest in uncovering the truth about these alleged crimes that have shocked the nation’s conscience and damaged the reputation and the interests of the United States is also self-evident.³⁵⁵

The Bush administration has already appointed one special prosecutor. When an unidentified government official retaliated against a critic of the Bush administration by revealing his wife to be a CIA agent — a serious crime because it could endanger her — the administration agreed, under pressure, to appoint a special prosecutor who, while not from outside the Department of Justice, has been promised independence from administration direction.³⁵⁶ Yet the administration has refused to appoint a special prosecutor to determine whether senior officials authorized torture and other forms of coercive interrogation, which are far more serious and systematic offenses.

As a result, no criminal inquiry that the administration itself does not control is being conducted into the U.S. government’s abusive interrogation methods. The flurry of self-investigations cannot obscure the lack of any genuinely independent one.

Under the Department of Justice regulations,

[a]n individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decision making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

The special counsel has “full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”

Such a prosecutor, however, would not have authority to investigate or prosecute officers within the military, such as General Sanchez and General Miller, for their violations of the UCMJ,³⁵⁷ although as noted above, a prosecutor would be able to investigate those officers’ violations of federal law. A prosecutor outside the military would also be unable to investigate and subpoena lower-level officers and soldiers for UCMJ violations (such as “dereliction of duty”) and thus obtain their cooperation in the prosecution of more senior officers — a standard prosecutorial tool. Without such powers, it would be difficult for a prosecutor to compel such persons to cooperate with investigations.

A solution to this problem would be for the secretary of defense to appoint a consolidated convening authority within the military to cooperate with a civilian prosecutor and serve to prosecute UCMJ violations in connection with the prosecutor’s investigations.

The appointment of a special prosecutor could answer the many questions which remain about the officials listed in this report, as well as about detainee policy generally.

With respect to Secretary Rumsfeld, the probe could examine whether any of the illegal coercive interrogation methods approved by Secretary Rumsfeld for use on detainees at Guantánamo between December 2, 2002 and January 15, 2003were actually used on Guantánamo detainees during that period. It could determine whether Secretary Rumsfeld was actually aware that troops were committing torture and war crimes in Afghanistan, Iraq, and Guantánamo. It could determine, once and for all, what orders, if any, did Secretary Rumsfeld give to Gen. Miller before his mission to Iraq. It could examine the allegations by Seymour Hersh that Secretary Rumsfeld authorized a “secret access program” to treat prisoners roughly and expose them to sexual humiliation.

With respect to the CIA and Director Tenet, an independent investigation could examine whetherthe CIA, as reported, subjected Khalid Shaikh Mohammed to waterboarding or withheld painkillers from Abu Zubaydah, or subjected them or other detainees to other forms of torture, and whether that treatment was approved by Director Tenet or other senior officials. It could also examine the policy of “extraordinary renditions” and determine Director Tenet’s role, if any, in the rendition of suspects to countries such as Syria and Egypt where they were tortured.

With respect to Gen. Sanchez, the inquiry should establish if and when he became personally aware of the abuses committed under his command and whether, as alleged, he personally witnessed detainee abuse yet did not act to end the abuse.

With respect to Guantánamo and Gen. Miller, a probe should investigate the treatment of prisoners at the base, and whether Gen. Miller was aware of the tactics alleged in this report and whether he approved them. An investigation could also establish whether Gen. Miller proposed the use in Iraq of guard dogs during the interrogation of detainees, and whether his recommendations were a proximate cause of the crimes committed at Abu Ghraib.