August 21, 2009

The Honorable Dianne Feinstein The Honorable Silvertre Reyes

Chairman Chairman
Senate Select Committee on Intelligence House Permanent Select Committee on
211 Hart Senate Office Building Intelligence
Washington, D.C. 20510 304 US Capitol Building
Washington, D.C. 20515

The Honorable Patrick Leahy The Honorable John Conyers

Chairman Chairman
Senate Committee on the Judiciary House Committee on the Judiciary
224 Dirksen Senate Office Building 2138 Rayburn House Office Building
Washington, D.C. 20510 Washington, D.C. 20515

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 like-
minded 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