Nadler: Justice Department Report Shows Necessity of Special Counsel to Investigate Torture

Press Release

Today, Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, said that the news that a Justice Department report recommended legal disciplinary action against the authors of the "torture memos" issued by the Office of Legal Counsel during the Bush administration demonstrates the legal necessity of the appointment of a special counsel.

"A recommendation of legal disciplinary action means that the Justice Department has concluded that the authors of the ‘torture memos' engaged in serious misconduct," Nadler said. "Whether this misconduct was criminal must therefore be determined. The law requires that all people involved in torture (or the authorization of torture) be investigated and, if warranted, prosecuted. And because these legal opinions came out of the Justice Department, a conflict of interest, or the appearance of a conflict of interest, necessitates the appointment of a special counsel from outside the Department. That is why the Justice Department regulations mandate the appointment of a special counsel in such circumstances."

Rep. Nadler issued the following statement:

"Press reports indicate that the investigation by the Justice Department's Office of Professional Responsibility into the preparation of the now-infamous memos authorizing torture will recommend that the attorneys involved, including Judge Jay Bybee and Prof. John Yoo, be referred to their state bar associations for disciplinary hearings. The reports indicate that OPR did not recommend prosecution.

"While the OPR report has not yet been released, I think it is critical to stress that a finding of wrongdoing by Justice Department attorneys in authorizing the use of torture dramatically bolsters the need to appoint a special counsel. A recommendation of legal disciplinary action means that the Justice Department has concluded that the authors of the ‘torture memos' engaged in serious misconduct. Whether this misconduct was criminal must therefore be determined. The law requires that all people involved in torture (or the authorization of torture) be investigated and, if warranted, prosecuted. And because these legal opinions came out of the Justice Department, a conflict of interest, or the appearance of a conflict of interest, necessitates the appointment of a special counsel from outside the Department. That is why the Justice Department regulations mandate the appointment of a special counsel in such circumstances.

"Clearly, it is unreasonable to expect the Justice Department to investigate possible criminal wrongdoing by its own attorneys. Whatever the result, the impartiality of that investigation would be questioned. It is therefore incumbent upon the Attorney General to proceed with an investigation of these actions. He has already stated that the memos authorized torture. We know that torture is illegal, and that our laws demand that torture be prosecuted. We cannot let this matter drop. We must meet our legal obligation to pursue allegations of torture.

"I firmly believe that the appointment of a special counsel is the only proper way to proceed to investigate these allegations and, where supported by the evidence, prosecute the guilty parties. So far, the only people to face prosecution for torture have been enlisted personnel and non-commissioned officers. They should not be the scapegoats for policies that were formulated in Washington."

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