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Recommendations

Recommendation to the U.S. Attorney General

Appoint a special counsel to investigate any U.S. officials — no matter their rank or position — who participated in, ordered, or had command responsibility for war crimes or torture, or other prohibited ill-treatment against detainees in U.S. custody. The special counsel should have, in accordance with U.S. regulations, full power and resources, and independent authority to exercise all investigative and prosecutorial functions necessary for the completion of the task. He or she should be a lawyer with no current connection to the U.S. government, a reputation for integrity and impartiality, and experience sufficient to ensure that the investigation will be conducted ably.

A special counsel is necessary because the prospect for accountability through ordinary avenues is severely compromised. U.S. Attorney General Alberto Gonzales who, as head of the Department of Justice, sits atop the prosecutorial machinery, was himself deeply involved in the policies leading to these alleged crimes, and thus may not only have a conflict of interest but also he, himself, may have a degree of complicity in those abuses. Similarly, Secretary Rumsfeld sits atop the military justice system, thus all but ruling out accountability though that channel for policies he set in motion. U.S. Department of Justice regulations call for the appointment of a “special counsel” when a conflict exists and the public interest warrants a prosecutor from outside the government.

To allow the special prosecutor to have full authority to investigate and prosecute both federal law and Uniform Code of Military Justice violations, the Secretary of Defense should appoint a consolidated convening authority for all armed services, to cooperate with the appointed civilian special prosecutor.

Recommendation to the U.S. Congress

Create a special commission, along the lines of the 9/11 commission, to investigate the issue of prisoner abuse, including all the issues described above. Such a commission would hold hearings, have full subpoena power, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the Attorney General had not yet named one. A special commission could also compel evidence that the government has continued to conceal, including President Bush’s reported authorization for the CIA to set up secret detention facilities and to “render” suspects to other countries, and details on Secretary Rumsfeld’s role in the chain of events leading to the worst period of abuses at Abu Ghraib.