August 21, 2009

The Honorable Dianne Feinstein Chairman Senate Select Committee on Intelligence 211 Hart Senate Office Building Washington, D.C. 20510

The Honorable Silvertre Reyes Chairman House Permanent Select Committee on Intelligence 304 US Capitol Building Washington, D.C. 20515 The Honorable John Conyers Chairman House Committee on the Judiciary 2138 Rayburn House Office Building Washington, D.C. 20515

The Honorable Patrick Leahy Chairman Senate Committee on the Judiciary 224 Dirksen Senate Office Building Washington, D.C. 20510 RE:

Independent, Nonpartisan Commission Needed to Assess Policy Making that Led to Use of Torture and Cruelty in Interrogations

Dear Chairmen Feinstein, Leahy, Reyes, and Conyers: It has been widely reported that in the coming days Attorney General Eric Holder will likely appoint a prosecutor to investigate potential crimes of torture and cruelty used on detainees in U. S. custody. If the Attorney General takes this important step forward, it will reaffirm the enduring power of our system of checks and balances. The prohibition on torture in this country is unequivocal. As former FBI interrogator, former military interrogator and career intelligence officer, we can attest that our law enforcement agencies take seriously their obligation to uniformly enforce U.S. laws. To ignore evidence of criminal wrongdoing would incentivize future breaches of law. Critics, however, are already sounding false alarms. On Wednesday, nine Senators asserted in a letter to Attorney General Holder that the “mere prospect of criminal liability for terrorist interrogations is already impeding our intelligence efforts.” This is not true. As many experienced interrogators have testified before Congress, there are effective ways to obtain information consistent with our laws and treaty obligations. Through our work gaining insight into how al Qaeda works, we have witnessed that the best means of acquiring accurate, actionable intelligence is not through torture and cruelty. Prosecutions of individuals who violated anti-torture statutes alone, however, will not prevent policy makers from making similar mistakes in the future. At the heart of the policy decisions buttressing interrogators’ use of torture and cruelty lay closed processes that have yet to be scrutinized with cool heads and wise counsel. Instead of putting in

place the best policies for protecting American lives, policy makers ignored the advice of experienced interrogators, counterterrorism experts and respected military leaders who warned that using torture and cruelty would be ineffective and counter-productive. The path we chose came with heavy costs. Key allies, in some instances, refused to share needed intelligence, terrorists attacks increased world wide, and al Qaeda and likeminded groups recruited a new generation of Jihadists. A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty. Our system of checks and balances is designed to produce sound policy decisions which advance our strategic interests and are in accordance with our core values of due process. Many important decisions that were made during the Bush administration were done so without the consent and the advice of key Congressional leaders, Department of Justice officials, and other officials with the expertise to provide informed thinking and critical analysis. An independent commission can present recommendations for fixing this process going forward. To ensure the commission’s objective is policy and not politics, the President should appoint distinguished leaders with reputation for fair-mindedness with Republican and Democratic co-chairs. Our use of torture and cruelty did not have to happen. We ask you to urge President Obama to appoint a nonpartisan commission not to look backward but to provide recommendations for the future. Reviewing our policies and actions concerning detention and treatment of detainees after 9/11 will strengthen our system of checks and balances so that when faced with the next challenge, we get it right. Sincerely, Jack Cloonan Steven Kleinman Matthew Alexander

Cc: All committee members

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