If the CIA videotaped the interrogations of two high-profile terror suspects to protect interrogators from spurious allegations, it would be ironic indeed if the same agency destroyed the tapes to protect interrogators from truthful allegations. Ironic but not illogical. By the time the tapes were destroyed, Abu Ghraib photos had shown the power of images to horrify the public, never mind judges and juries.
In terms of public relations, the world’s knowledge of the tapes’ destruction was probably less damaging than had the world seen the tapes. The question before newly appointed prosecutor John H. Durham, however, is whether the destruction was criminal. A preliminary inquiry by the Justice Department’s National Security Division and the CIA’s Office of Inspector General, said U.S. Attorney General Michael Mukasey, found “a basis for initiating a criminal investigation.”
According to the New York Times, “Justice Department officials declined to specify what crimes might be under investigation, but government lawyers have said the inquiry will probably focus on whether the destruction of the tapes involved criminal obstruction of justice and related false-statement offenses.” The Times report added, “The appointment of a prosecutor from outside Washington was an unusual move, and it suggested that Mr. Mukasey wanted to give the investigation the appearance of an extra measure of independence, after complaints from lawmakers in both parties that Mr. Mukasey’s predecessor, Alberto R. Gonzales, had allowed politics to influence the Justice Department’s judgment.”
Durham was not named a special prosecutor, however, and so “will report to the deputy attorney general, an office being held temporarily by Craig S. Morford,” the Times reported. “Mr. Durham will have the powers of the United States attorney for the Eastern District of Virginia, a jurisdiction that includes C.I.A. headquarters. If a grand jury is convened as expected, it will meet in Alexandria, Va., where the prosecutor’s office is located.” He will have less wide-ranging authority than did, for example, Patrick Fitzgerald, who led the inquiry into the Valerie Plame leak case.
Congress plans to continue inquiries
The leaders of both Senate and House intelligence committees said Wednesday that they would continue their inquiries. That decision contains pitfalls, said a Washington Post editorial.
“While parallel congressional and executive branch investigations are not uncommon, they almost always present hazards,” the Post said. “Congressional grants of immunity in exchange for testimony could undermine a criminal prosecution. Public testimony opens the door for witnesses to align their stories. In this case, the House intelligence committee has subpoenaed Jose A. Rodriguez Jr., the CIA official who reportedly authorized the tapes’ destruction, for a Jan. 16 hearing. Congress without question has a legitimate oversight interest, but it should tread carefully so as not to damage a possible criminal prosecution.”
As for Mukasey’s choice of Durham to lead the Justice Department’s investigation, many reactions to the appointment noted his lack of special-counsel status with dismay. But early comments on Durham himself were highly positive. Matt Apuzzo wrote on the Huffington Post website, “He supervised the investigation that sent former Republican Connecticut Gov. John G. Rowland and several members of his administration to prison on corruption charges. ‘He’ll suck the political air right out of the investigation and just go after the facts,’ said Mike Clark, a retired FBI agent who investigated Rowland. ‘He’s going to do it his way and just keep digging.’ ”
Others went further in expressions of admiration. Peter Lattman, on the Wall Street Journal’s Law Blog, wrote: “For DOJ watchers wondering whether Michael Mukasey would be a ‘loyal Bushie’ or independent from the White House, there’s some evidence today that would point to the latter.” After citing laudatory quotes about Durham from 2001, including one from an FBI agent who said, “There is no more principled, there is no more better living, there is no finer person that I know of or have encountered in my life,” Lattman wrote, “With those quotes seven years old, we wanted to see if he was still such an awesome guy. So the Law Blog checked in with Richard Blumenthal, the attorney general in Connecticut, who also sung Durham’s praises. ‘He is relentless and tireless in pursuing every lead and every bit of information that could open avenues for prosecution but he is also a prosecutor of absolute integrity who will never shade or distort a piece of evidence to achieve some desired result,’ said Blumenthal, who has worked with Durham on numerous cases. ‘He lets the chips and the facts fall without any predisposition and often agonizes about what’s legally right and fair.'”
A Wednesday New York Times opinion piece by Thomas Kean and Lee Hamilton, leaders of the 9/11 commission, left such agonizing to Durham. But the authors were pointedly straightforward about their non-legal conclusions, given the sweeping requests they describe having made to the CIA. “As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others,” they wrote. “What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one (of) the greatest tragedies to confront this country. We call that obstruction.”
Determining whether the obstruction was criminal will surely take many months, at the least. In the meantime, watch for the congressional hearings, beginning with the House Intelligence Committee’s session on Jan. 16.
Susan Albright, a former editor of the Star Tribune’s editorial pages, writes about national and foreign developments.