May 18 2009

SHELBY TO HOLDER: WE NEED ANSWERS

U.S. Senator Richard C. Shelby, ranking Republican on the Senate Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies (CJS), today sent a letter to U.S. Attorney General Eric Holder requesting information regarding the approval of renditions while Holder was Deputy Attorney General during the Clinton Administration.  The letter further inquires about the potential criminal investigation of U.S. officials who drafted the legal opinions upon which the CIA based its interrogation program during the Bush Administration, as well as those who actually participated in the interrogation of detainees; and about the disposition of Guantanamo Bay detainees.  This correspondence follows questioning of Holder by Shelby during a May 7, 2009 CJS hearing on the Department of Justice’s Fiscal Year 2010 budget request.

Shelby also announced that during the upcoming floor debate on the Fiscal Year 2009 Supplemental for Iraq, Afghanistan, Pakistan and Pandemic Flu he, along with Senators Alexander and Bennett, will offer an amendment to strike $30 million included in the Department of Justice portion of the legislation to implement Guantanamo Bay Detainee Review, Detention, and Interrogation Executive Orders.  Shelby said during a May 14, 2009 Appropriations Committee mark up of the legislation, “Until we are clear about Attorney General Holder’s role in renditions and interrogations prior to 9-11, and what this Administration is proposing to do with these terrorists once Guantanamo is closed, I believe it is premature to provide this funding.” 

The full text of the letter is below. 

 

May 18, 2009

The Honorable Eric Holder
Attorney General
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC  20530


Dear Attorney General Holder:

I am writing to follow up on some of the issues raised during your hearing before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies on May 7, 2009.   Below are a number of questions posed during the hearing, as well as some additional questions I have relating to a potential criminal investigation of U.S. officials who drafted the legal opinions upon which the CIA based its interrogation program, and who actually participated in the interrogation of detainees.  Also included are questions relating to the disposition of Guantanamo Bay detainees.  Your immediate response would be greatly appreciated.

1. During your tenure as the Deputy Attorney General of the United States, 1997 to 2001, did you know that President Clinton approved of and actively engaged in the practice known as rendition?  Did you or anyone in the Department of Justice express a legal opinion on, participate in, or approve any rendition?  What actions did you take to ensure any such rendition complied with United States or international law?  What actions did you take to ensure that any interrogations of any such individuals rendered by the United States were conducted by the receiving country in a manner consistent with United States or international law?  Did you or anyone on your behalf ever determine whether any useful intelligence was obtained from any such individuals rendered by or on behalf of the United States?  Did you or anyone on your behalf ever attempt to determine how that information was obtained and whether any such individuals rendered by or on behalf the United States was subjected to any treatment that would violate United States or international laws?

2. In an exchange with Senator Alexander during the hearing you mentioned an Office of Professional Responsibility (OPR) inquiry into the work of the attorneys who prepared the Office of Legal Counsel (OLC) memoranda regarding interrogation.  It has been reported that the OPR report criticizes the competence of the authors of the memoranda.

a. Has the OPR, prior to this review, ever reviewed legal opinions drafted by the OLC?  If so, please explain in detail, including whether any such review involved intelligence matters or the President's war powers?


b. Presuming the OPR reviewed the legal opinions of the OLC regarding the CIA’s interrogation program, please describe, in detail, the standards of review applicable to any such OPR review.  Also, provide a copy of any standards of conduct or any other Department of Justice policy guidance regarding the conduct of attorneys used by the OPR in its reviews.  What conclusions did OPR reach in any such review?

c. How many attorneys currently work in the Office of Professional Responsibility?  Do any of them have expertise in constitutional law, intelligence matters, treaty compliance, and/or separation of powers?  If so, please provide detailed information regarding each attorney’s individual expertise in these areas.  Is the OPR seeking outside guidance in any of these areas?  If so, please provide specific information on these individuals or sources.

d. Did any of the personnel in the OPR work on cases or policies arising from our government's response to the 9/11 attacks?  If so, please provide the names of these individuals.

3. Attorney General Mukasey and Deputy Attorney General Filip were presented with a draft of an OPR report near the end of the Bush Administration.  This was after more than four years of investigation and thousands of dollars in taxpayer funds being expended.  Press reports have suggested that Mukasey and Filip rejected the idea that OLC attorneys should be subject to sanctions. 

a. Please explain why you have decided to overrule Attorney General Mukasey’s decision.  Also, please provide the Committee with all instances, if any, where an incoming Attorney General has reversed the decision of his or her predecessor regarding a recommendation by the OPR.

b. News reports suggest that the OPR will criticize the Bybee memorandum that argues that the anti torture statute cannot interfere with the President's constitutional authorities.  Did the OPR ever investigate the opinions of the Clinton Justice Department to determine if it claimed that the President's constitutional authorities would allow him to act in violation of Acts of Congress?  If not, why not?  If so, please provide those opinions.

c. Does the OPR report address whether the interrogation methods used actually produced useful intelligence?  If not, why not?  If so, please list all U.S. Government personnel interviewed by the OPR to make such a determination. 


4. The provision of accurate legal advice regarding the conduct of intelligence operations will necessarily entail the consideration of not only many types of activities, but also very difficult legal issues.  On many occasions, reasonable attorneys may disagree on whether such activities are consistent with or violate United States or international law.  The investigation, and possible sanctioning, of attorneys for the provision of legal advice in areas of law that are less than clear will absolutely have a chilling effect on their ability to provide accurate legal opinions.  Faced with sanctions, attorneys will undoubtedly choose to stay well within the law.  Intelligence operations will then be unnecessarily limited falling well short of what the Congress and the President may be prepared to sanction.  With this in mind, won’t risk aversion driven by chilled legal advice recreate the bureaucratic attitude that contributed to our inability to detect and stop the 9/11 attacks? 

5. Do you believe the President has the legal authority to bring terrorists, former terrorists or anyone who has received terrorist training into the United States and release them into our communities?  If so, please provide a copy of that authority?

6. In your testimony before the Committee you stated that with "regard to the release decisions that we will make, we will look at these cases on an individualized basis and make determinations as to where they can appropriately be placed."  What are the criteria on which you will base a decision to place an individual currently being held in Guantanamo in the United States?  Please be more specific than the general guidance given in the President’s Executive Order.

Thank you for your immediate attention to these matters.

Sincerely,


Richard Shelby