Legal Professionals: Take action to demand accountability for torture

The Honorable Eric H. Holder
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Mr. Attorney General:

We, the undersigned legal professionals, write to share our concerns that your office’s decision to conduct only a limited investigation of the torture of detainees in U.S. custody—one that appears to ignore and entirely overlook potential crimes by former senior officials—is endangering the legitimacy of our nation’s criminal justice system. We are encouraged by your decision to appoint a special prosecutor to investigate crimes related to torture, as well as by recent calls from Americans from all walks of life, including veterans returning from Iraq and Afghanistan, for the disclosure of all evidence of torture--including photos reportedly depicting rape that remain secret.

The full investigation of potential crimes, as others have pointed out, holds profound implications for our nation’s international legitimacy and future opportunities to credibly promote human rights. It also holds immense importance for the future historical record, as well as the policy debates on detention, surveillance, and other violations of civil liberties under the Obama administration going forward.

Our concern here is more specific, reflecting our particular expertise as members of the legal profession. Until our nation investigates those responsible for violating our most fundamental and historically significant legal rules and international commitments, our justice system as a whole will face a mounting legitimacy crisis.

It is one thing for the Supreme Court to categorically insulate senior officials from accountability for abuses of individual Americans and the rule of law. It is a worse insult to justice for the nation’s chief law enforcement officer to resign any effort to hold such officials responsible by virtue of their status or political influence.

Conscientious observers have long argued that our criminal justice system suffers from numerous pervasive and systemic biases along lines of race and socio-economic class:

• disproportionate rates of investigation and incarceration;


• massive increases in prison populations, driven mostly by sentences for non-violent offenses or for behavior rendered criminal only to serve dubious public policy objectives;


• disparities in sentencing mandated by federal guidelines for offenses more likely to be committed by members of one racial community than another;


• differing degrees of representation entailed by socio-economic disparities unfortunately correlated with race; and


• vastly disparate rates of death penalty sentences for individuals of different races found guilty of comparable crimes.

These concerns are hardly new to you. Although you have avoided discussion of racial disparities in the criminal justice system, you have noted your groundbreaking role as our nation’s first African-American Attorney General and called for our country to “examine its racial soul.” The severity of systemic disadvantages in the criminal process grows more disturbing—and the system’s legitimacy grows less secure—when violations of our nation’s most fundamental commitments carry no consequences for potential criminals who wield political influence.

Decisions to officially authorize torture, as well as abuse that constitutes torture, violate a litany of constitutional, statutory, and international commitments:

• Domestic statutes (e.g., 18 USC §§ 956, 1202, 2340, 2441);


• The Fifth, Sixth, and Eighth Amendments to our Constitution; and


• Several binding international treaties (e.g., the International Convention on Civil and Political Rights, the Convention on the Elimination of Racial Discrimination, the Convention Against Torture, and the Geneva Conventions).

Torture is illegal, and those who conduct or enable it should face investigation and, if warranted, prosecution.

Junior officials may well have been assured by civilian superiors, commanding military officers, and executive branch lawyers that their illegal acts were officially condoned and that they would not be held individually responsible for those actions. Junior officers of the Third Reich made precisely analogous claims at the Nuremberg trials, which our nation proudly pioneered under the leadership of Supreme Court Justice Robert Jackson.

The Nuremberg judges soundly rejected those officers’ claims, establishing one of the international legal regime’s most seminal precedents: the culpability of every individual—at every point in the chain of command—for war crimes and violations of human rights. As the court found in U.S.A. v. Alstoetter et al., “The conclusion to be drawn from the evidence, presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a Tribunal authorized to enforce international law, Hitler's decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.”

Finally, some may suggest that an effort to restore the legitimacy of our justice system by pursuing fair prosecution would subvert it to a political calculus. In fact, it would do the opposite by reflecting and promoting the very definition of law: the consistent application of neutral principles across differing contents.

We urge you, in your capacity as our nation's senior prosecutor, to restore the rule of law by ensuring its equal application to all.

Respectfully submitted,
The undersigned legal professionals

cc: The Honorable David Ogden, Deputy Attorney General
The Honorable Lanny A. Breuer, Assistant Attorney General, Criminal Division
The Honorable Dianne Feinstein, Chairperson, U.S. Senate Select Committee on Intelligence
The Honorable Christopher S. Bond, Vice Chairman, U.S. Senate Select Committee on Intelligence
The Honorable John D. Rockefeller IV, U.S. Senate Select Committee on Intelligence
The Honorable Orrin Hatch, U.S. Senate Select Committee on Intelligence
The Honorable Ron Wyden, U.S. Senate Select Committee on Intelligence
The Honorable Olympia J. Snowe, U.S. Senate Select Committee on Intelligence
The Honorable Evan Bayh, U.S. Senate Select Committee on Intelligence
The Honorable Saxby Chambliss, U.S. Senate Select Committee on Intelligence
The Honorable Barbara A. Mikulski, U.S. Senate Select Committee on Intelligence
The Honorable Richard Burr, U.S. Senate Select Committee on Intelligence
The Honorable Russell D. Feingold, U.S. Senate Select Committee on Intelligence
The Honorable Tom Coburn, U.S. Senate Select Committee on Intelligence
The Honorable Bill Nelson, U.S. Senate Select Committee on Intelligence
The Honorable James Risch, U.S. Senate Select Committee on Intelligence
The Honorable Sheldon Whitehouse, U.S. Senate Select Committee on Intelligence