by Frank James
It’s not quite the outside-the-government special prosecutor some congressional Democrats have demanded, but today Attorney General Michael Mukasey said he asked the Federal Bureau of Investigation to launch a criminal investigation into the Central Intelligence Agency’s destruction of video tapes of the harsh interrogations of two high-value al Qaeda detainees.
The probe will be headed by John Durham, First Assistant U.S. Attorney in the U.S. Attorney’s Office in Connecticut. Normally, the U.S. Attorney for Northern Virginia would handle a CIA case of this sort.
But an “abundance of caution,” led the abundantly cautious Mukasey to look to New England for a senior government lawyer to oversee the investigation. Lessens the chances for any real or apparent conflict of interest.
The widely held suspicion is that the CIA got rid of the tapes because they showed the detainees being waterboarded, the torture technique that simulates drowning.
And this was despite some CIA officials being told by the then-director, Porter Goss, that in Washington, it was usually a very bad idea to destroy tapes, a lesson everyone was supposed to have learned after the Watergate scandal.
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Did the tapes’ destruction amount to obstruction of justice, that’s the question the probe will seek to answer.
Here’s Mukasey’s statement:
“Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation as outlined below.
“This preliminary inquiry was conducted jointly by the Department’s National Security Division and the CIA’s Office of Inspector General. It was opened on December 8, 2007, following disclosure by CIA Director Michael Hayden on December 6, 2007, that the tapes had been destroyed. A preliminary inquiry is a procedure the Department of Justice uses regularly to gather the initial facts needed to determine whether there is sufficient predication to warrant a criminal investigation of a potential felony or misdemeanor violation. The opening of an investigation does not mean that criminal charges will necessarily follow.
“An investigation of this kind, relating to the CIA, would ordinarily be conducted under the supervision of the United States Attorney for the Eastern District of Virginia, the District in which the CIA headquarters are located. However, in an abundance of caution and on the request of the United States Attorney for the Eastern District of Virginia, in accordance with Department of Justice policy, his office has been recused from the investigation of this matter, in order to avoid any possible appearance of a conflict with other matters handled by that office.
“As a result, I have asked John Durham, the First Assistant United States Attorney in the United States Attorney’s Office for the District of Connecticut, to serve as Acting United States Attorney for the Eastern District of Virginia for purposes of this matter. Mr. Durham is a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past, and I am grateful to him for his willingness to serve in this capacity. As the Acting United States Attorney for purposes of this investigation, Mr. Durham will report to the Deputy Attorney General, as do all United States Attorneys in the ordinary course. I have also directed the FBI to conduct the investigation under Mr. Durham’s supervision.
“Earlier today, the Department provided notice of these developments to Director Hayden and the leadership of the Judiciary and Intelligence Committees of the Congress.”
Sen. Patrick Leahy welcomed Mukasey’s announcement, taking it as vindication that all the outrage expressed by congressional Democrats over the tapes destruction was warranted. In a statement, Leahy said.
“The Attorney General’s announcement that the Department of Justice is appointing a prosecutor to begin a criminal investigation into the CIA’s destruction of tapes showing the use of enhanced interrogation techniques shows that many of us were right to be concerned with possible obstruction of justice and obstruction of Congress. Two weeks ago, Ranking Member Specter and I asked the Attorney General for information about what steps he planned to take in this matter. Now we see that the Department’s initial investigation has led him to determine that it is necessary to appoint an outside prosecutor to bring a criminal investigation.
“I remain concerned that the constitutional oversight role of Congress has been ignored in the discovery and destruction of these tapes. I look forward to hearing further from Attorney General Mukasey when he comes before the Judiciary Committee this year. I hope the Justice Department will cooperate with Congress as it investigates this serious matter.”
The Associated Press reports Durham is a hard-charger and that the CIA says it will cooperate:
Durham has a reputation as one of the nation’s most relentless prosecutors. He served as an outside prosecutor overseeing an investigation into the FBI’s use of mob informants in Boston and helped send several Connecticut public officials to prison.
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“The CIA will of course cooperate fully with this investigation as it has with the others into this matter,” agency spokesman Mark Mansfield said.
The CIA has already agreed to open its files to congressional investigators, who have begun reviewing documents at the agency’s Virginia headquarters. The House Intelligence Committee has ordered Jose Rodriguez, the former CIA official who directed the tapes be destroyed, to appear at a hearing Jan. 16.
Rodriguez’s attorney, Robert S. Bennett, had no comment.