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Public Statements

Letter to U.S. Attorney General Eric Holder

Kyl, Bond, Sessions Respond to AG Holder's Decision to Appoint a Special Prosecutor to Investigate CIA

U.S. Senate Republican Whip Jon Kyl (Ariz.), U.S. Senator Kit Bond (R-Mo.), Vice Chairman of the Senate Intelligence Committee, U.S. Senator Jeff Sessions (R-Ala.), Ranking Member of the Senate Judiciary Committee, and other senators today sent the following letter to U.S. Attorney General Eric Holder in response to his decision to appoint a special prosecutor to investigate CIA officials who interrogated al Qaeda terrorists:

“We are deeply disappointed by today's announcement that you have chosen to appoint a special prosecutor to investigate CIA officials who interrogated al Qaeda terrorists. As we explained to you in a letter dated August 19, 2009, reopening those cases—which career prosecutors have already determined do not warrant criminal prosecution—could, among other things, have a chilling effect on the work of the intelligence community.

“We believe that the concerns raised in our letter warranted, at a minimum, careful consideration and a reasoned response. Instead, you moved forward without responding to our concerns or discussing with a coordinate branch of government the potential national security consequences that may result if the intelligence community is operating against a backdrop of prosecutions. The handling of this important issue calls into question your confirmation hearing commitments that you would establish a ‘full partnership' with Congress and that you ‘recognize that congressional oversight and judicial review are necessary, beneficial attributes of our system of government.'

“Wholly apart from whether this issue should have been reopened, the manner in which you have chosen to do so is itself troubling. In the ordinary course, criminal investigations and prosecutions are to be handled by career Justice Department officials working under the oversight of the Department's senior management. The Department's own regulations permit deviation from the “normal processes of the Department” and the appointment of a special prosecutor only where there is a ‘conflict of interest for the Department' or other such extraordinary circumstances. 28 CFR § 600.1. Because there is no apparent conflict of interest here, the customary basis for a special prosecutor is lacking.

“Moreover, history has shown that special prosecutors, who lack the accountability of career prosecutors to Justice Department management, often take an expansive view of their investigative authority. Thus, despite your assurances that this investigation will be narrow and focused, there is a real risk that today's announcement portends a long, arduous, and unpredictable process for the intelligence community. By delegating the prosecutorial function to a largely unchecked special prosecutor, you are responsible for having set a course that may diminish our intelligence efforts, which fundamentally rely on forward-leaning responses to national security concerns.

“We fear that the true cost of this endeavor will ultimately be borne by the American people, who rely on the intelligence community, operating without distraction, to protect them from the many threats, known and unknown, that our country faces in this post-9/11 world.”

U.S. Senators Richard Burr (R-N.C.), Saxby Chambliss (R-Ga.), Tom Coburn (R-Okla.), John Cornyn (R-Texas), Chuck Grassley (R-Iowa), and Orrin Hatch (R-Utah) also signed onto the letter.

On August 19, these same senators sent a letter to Attorney General Holder emphasizing the danger and consequences of taking such action as was announced today. As of today, no reply has been received.

August 24, 2009

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Dear Attorney General Holder:

We are deeply disappointed by today's announcement that you have chosen to appoint a special prosecutor to investigate CIA officials who interrogated al Qaeda terrorists. As we explained to you in a letter dated August 19, 2009, reopening those cases—which career prosecutors have already determined do not warrant criminal prosecution—could, among other things, have a chilling effect on the work of the intelligence community.

We believe that the concerns raised in our letter warranted, at a minimum, careful consideration and a reasoned response. Instead, you moved forward without responding to our concerns or discussing with a coordinate branch of government the potential national security consequences that may result if the intelligence community is operating against a backdrop of prosecutions. The handling of this important issue calls into question your confirmation hearing commitments that you would establish a “full partnership” with Congress and that you “recognize that congressional oversight and judicial review are necessary, beneficial attributes of our system of government.”

Wholly apart from whether this issue should have been reopened, the manner in which you have chosen to do so is itself troubling. In the ordinary course, criminal investigations and prosecutions are to be handled by career Justice Department officials working under the oversight of the Department's senior management. The Department's own regulations permit deviation from the “normal processes of the Department” and the appointment of a special prosecutor only where there is a “conflict of interest for the Department” or other such extraordinary circumstances. 28 CFR § 600.1. Because there is no apparent conflict of interest here, the customary basis for a special prosecutor is lacking.

Moreover, history has shown that special prosecutors, who lack the accountability of career prosecutors to Justice Department management, often take an expansive view of their investigative authority. Thus, despite your assurances that this investigation will be narrow and focused, there is a real risk that today's announcement portends a long, arduous, and unpredictable process for the intelligence community. By delegating the prosecutorial function to a largely unchecked special prosecutor, you are responsible for having set a course that may diminish our intelligence efforts, which fundamentally rely on forward-leaning responses to national security concerns.
We fear that the true cost of this endeavor will ultimately be borne by the American people, who rely on the intelligence community, operating without distraction, to protect them from the many threats, known and unknown, that our country faces in this post-9/11 world.

Sincerely,

JON KYL KIT BOND
United States Senator United States Senator

JEFF SESSIONS SAXBY CHAMBLISS
United States Senator United States Senator

ORRIN HATCH CHUCK GRASSLEY
United States Senator United States Senator

TOM COBURN JOHN CORNYN
United States Senator United States Senator

RICHARD BURR
United States Senator

Attachment: Letter from United States Senators to Attorney General Eric Holder, August 19, 2009.

August 19, 2009

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Dear Attorney General Holder:

We are deeply concerned by recent news reports that you are “poised to appoint a special prosecutor” to investigate CIA officials who interrogated al Qaeda terrorists. Such an investigation could have a number of serious consequences, not just for the honorable members of the intelligence community, but also for the security of all Americans.

The CIA's Inspector General report on interrogations, which reportedly would be a basis upon which you would seek to justify a special prosecutor, has been available to the Justice Department for more than five years. Three former Attorneys General and numerous career prosecutors have examined the findings of that report and other evidence and determined that the facts do not support criminal prosecutions. It is difficult to understand what rationale could drive the Justice Department to now reverse course, reopen a five-year-old matter, and tarnish the careers, reputations, and lives of intelligence community professionals.

The 9/11 Commission emphasized that keeping our country safe from foreign attack requires that the Justice Department work cooperatively with the intelligence community, but the appointment of a special prosecutor would irresponsibly and unnecessarily drive a wedge between the two. Moreover, there is little doubt that further investigations and potential prosecutions of CIA officials would chill future intelligence activities. The intelligence community will be left to wonder whether actions taken today in the interest of national security will be subject to legal recriminations when the political winds shift. Indeed, there is a substantial risk that the mere prospect of criminal liability for terrorist interrogations is already impeding our intelligence efforts, as demonstrated from the fact that CIA officials increasingly feel compelled to obtain legal defense insurance.

We will not know the lost opportunities to prevent attacks, the policies to protect the nation left on the table, due to fear of future policy disagreement being expressed through an indictment. It is hard to imagine how the Justice Department could take that risk after September 11, given that the foremost duty of the Department is to protect Americans. Actions such as the one apparently under consideration will make that duty more difficult to discharge and could leave us more vulnerable to attack. It is well past time for the Obama Administration to lift the cloud that has been placed over those in the intelligence community and let them return to the job of saving American lives.

Media reports also suggest that the interrogation of Khalid Sheikh Mohammed (KSM), the mastermind of the September 11 attacks, would be a primary focus of the investigation that you envision. As you know, the interrogation of KSM, and others like him, produced information that was absolutely vital to apprehending other al Qaeda terrorists and preventing additional attacks on the United States, including the West Coast plot seeking to destroy the Library Tower in Los Angeles. It is ironic that the Obama Administration, which has delayed justice for the victims of September 11 by suspending the trial of KSM, may soon be charging ahead to prosecute the very CIA officials who obtained critical information from him. That KSM's treatment is receiving more prompt attention from the Justice Department than his depraved acts cannot be justified.

The country would be better served if the Justice Department refocuses its priorities and allocates its resources to pressing matters—such as prosecuting the terrorists responsible for the September 11 attacks—instead of contemplating legal action against the men and women who have dedicated their lives to protecting this country.

Sincerely,

JON KYL KIT BOND
United States Senator United States Senator

JEFF SESSIONS SAXBY CHAMBLISS
United States Senator United States Senator

JOHN CORNYN TOM COBURN
United States Senator United States Senator

ORRIN HATCH CHUCK GRASSLEY
United States Senator United States Senator

RICHARD BURR
United States Senator


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