The U.S. has a history of going after a crime by prosecuting its cover-up, and the scandal of U.S. torture took a turn conforming to this pattern on Wednesday when the U.S. attorney general announced that John H. Durham, a career federal prosecutor at the Dept. of Justice, will conduct a formal criminal investigation in to the 2005 destruction of 2002 interrogation videotapes by the Central Intelligence Agency.  --  "The announcement is the first indication that investigators have concluded on a preliminary basis that C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which recorded the interrogations in 2002 of two operatives with Al Qaeda and were destroyed in 2005," the New York Times reported Thusday.[1]  --  "[G]overnment 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," Mark Mazzetti and David Johnston wrote.  --  They said that "In legal circles [John Durham] has the reputation of a tough, tight-lipped litigator who compiled a stellar track record against the mob."  --  But "Mr. Mukasey pointedly did not designate Mr. Durham as a special counsel, in effect refusing to bow to pressure from Congressional Democrats," Mazzetti and Johnston pointed out.  --  The Washington Post noted that "House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) criticized the probe over its 'limited scope' and advocated the appointment of 'a more independent special counsel.'"[2]  --  The Post observed that he is "a registered Republican, according to Connecticut voter records," and is "well known as a publicity-averse specialist in organized crime cases."  --  The Post also noted that the identity of at least one individual who saw the destroyed videotapes is known:  CIA Inspector General John L. Helgerson, "who disclosed in a statement yesterday that he plans to recuse himself from the criminal inquiry to avoid a conflict of interest."  --  In Wednesday's New York Times, the chair and vice chair of the 9/11 Commission declared that "Those who knew about those videotapes — and did not tell us about them — obstructed our investigation."[3]  --  Glenn Greenwald, a former litigator, commented on his blog at Salon.com:  "It's hard to imagine a more serious scandal than this.  As I noted the other day, it is a confirmed fact that Alberto Gonzales and David Addington — the top legal representatives of George Bush and Dick Cheney, respectively — participated in discussions as to whether those videotapes should be destroyed.  The White House refuses to disclose what these top officials said in those meetings.  Did they instruct that the videos should be destroyed or fail to oppose their destruction?  The NYT previously quoted one "senior intelligence official with direct knowledge of the matter [who] said there had been 'vigorous sentiment' among some top White House officials to destroy the tapes."[4]  --  Dan Froomkin, writing on his blog on the web site of the Washington Post, asked:  "How high will the newly-launched criminal investigation into the CIA's destruction of interrogation tapes go?  And will it eventually target Vice President Cheney?"[5]  --  It is hard to see how any serious probing of this matter can do other than lead to the Office of the Vice President — where sit the man whom the Post called in an editorial "Vice President for Torture" and his nefarious éminence grise, David S. Addington....

1.

U.S.

Washington

U.S. ANNOUNCES CRIMINIAL INQUIRY INTO C.I.A. TAPES [Web headline: JUSTICE DEPT. SETS CRIMINAL INQUIRY ON C.I.A. TAPES]
By Mark Mazzetti and David Johnston

** Focus on Destruction — Career Prosecutor Will Review Officials' Acts in Detainee Case **

New York Times
January 3, 2008
Page A1

http://www.nytimes.com/2008/01/03/washington/03intel.html

WASHINGTON -- Attorney General Michael B. Mukasey said Wednesday that the Justice Department had elevated its inquiry into the destruction of Central Intelligence Agency interrogation videotapes to a formal criminal investigation headed by a career federal prosecutor.

The announcement is the first indication that investigators have concluded on a preliminary basis that C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which recorded the interrogations in 2002 of two operatives with Al Qaeda and were destroyed in 2005.

C.I.A. officials have for years feared becoming entangled in a criminal investigation involving alleged improprieties in secret counterterrorism programs. Now, the investigation and a probable grand jury inquiry will scrutinize the actions of some of the highest-ranking current and former officials at the agency.

The tapes were never provided to the courts or to the Sept. 11 commission, which had requested all C.I.A. documents related to Qaeda prisoners. The question of whether to destroy the tapes was for nearly three years the subject of deliberations among lawyers at the highest levels of the Bush administration.

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.

Mr. Mukasey assigned John H. Durham, a veteran federal prosecutor from Connecticut, to lead the criminal inquiry in tandem with the Federal Bureau of Investigation. 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.

Mr. Durham was not appointed as a special counsel in this case, a step sought by some Congressional Democrats. He will have less expansive authority than a special counsel and will report to the deputy attorney general rather than assume the powers of the attorney general, which he would have had as a special counsel.

Mr. Durham has spent years bringing cases against organized crime figures in Hartford and Boston. In legal circles he has the reputation of a tough, tight-lipped litigator who compiled a stellar track record against the mob.

A C.I.A. spokesman said that the agency would cooperate fully with the Justice Department investigation. Current and former officials have said that the C.I.A. official who ordered the destruction of the tapes in November 2005 was Jose A. Rodriguez Jr., who at the time was the head of the agency’s clandestine branch.

The decision to start a full-scale criminal investigation into the matter came four weeks after the disclosure on Dec. 6 that the tapes had been created and then destroyed. The Justice Department and the C.I.A. opened a preliminary inquiry on Dec. 8, and Mr. Mukasey said Wednesday that he had concluded from that review “that there is a basis for initiating a criminal investigation of this matter.”

The chairmen of the House Intelligence Committee, Representative Silvestre Reyes, Democrat of Texas, and the Senate Intelligence Committee, Senator John D. Rockefeller IV, Democrat of West Virginia, welcomed Mr. Mukasey’s announcement. But neither gave any indication he would defer to the criminal inquiry, and in separate statements they pledged to proceed with their committees’ investigations into the destruction of the tapes.

John L. Helgerson, the C.I.A. inspector general who took part in the preliminary inquiry, said Wednesday that he would step aside from the criminal investigation to avoid any appearance of a conflict of interest.

Mr. Helgerson’s office had reviewed the videotapes, documenting the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri, as part of an investigation into the C.I.A’s secret detention and interrogation program. Mr. Helgerson completed his investigation into the program in early 2004.

Among White House lawyers who took part in discussions between 2003 and 2005 about whether to destroy the tapes were Mr. Gonzales, when he was White House counsel; Harriet E. Miers, Mr. Gonzales’s successor as counsel; David S. Addington, who was then counsel to Vice President Dick Cheney; and John B. Bellinger III, then the legal adviser to the National Security Council. It is unclear whether anyone outside the C.I.A. endorsed destroying the tapes.

The new Justice Department investigation is likely to last for months, possibly beyond the end of the Bush administration.

Mr. Durham is currently the top-ranking deputy in the United States attorney’s office in Connecticut, supervising all major felony cases brought in the state.

In the late 1990s he was assigned as a special attorney in Boston leading an inquiry into allegations that F.B.I. agents and police officers had been compromised by mobsters.

In taking over the inquiry, Mr. Durham is expected to be able to move ahead without a long delay because his team will include Justice Department prosecutors who have already been working on the case. But at least in the beginning, it is likely to proceed more slowly than parallel investigations on Capitol Hill that are already well under way. Investigators from the House Intelligence Committee last month reviewed C.I.A. documents related to the destruction of the tapes, and the committee has called government witnesses to testify at a hearing scheduled for Jan. 16.

Mr. Mukasey pointedly did not designate Mr. Durham as a special counsel, in effect refusing to bow to pressure from Congressional Democrats to appoint an independent prosecutor with the same broad legal powers that were given to Patrick J. Fitzgerald, the special counsel who was appointed in 2003 to lead the investigation into the disclosure of a C.I.A. officer’s identity. That inquiry resulted in the perjury and obstruction prosecution of I. Lewis Libby Jr., formerly Mr. Cheney’s chief of staff. After Mr. Libby’s conviction, President Bush commuted his sentence.

Mr. Fitzgerald was appointed after the attorney general at the time, John Ashcroft, determined that his own relationship with officials under possible scrutiny in the leak case forced him to recuse himself from the investigation. As special counsel, Mr. Fitzgerald had the authority of the attorney general for the matters under investigation.

Mr. Durham will report to the deputy attorney general, an office being held temporarily by Craig S. Morford. 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.

Mr. Mukasey said “in an abundance of caution” the office of United States attorney for the district, Chuck Rosenberg, had been recused from the case and would not take part in the inquiry. Mr. Rosenberg’s office has investigated cases of detainee abuse by C.I.A. employees and contractors and has worked closely with the C.I.A. on counterterrorism and espionage cases.

Mr. Mukasey said the decision was made “to avoid any possible appearance of a conflict with other matters handled by that office.” Appointments like Mr. Durham’s are sometimes made in cases in which prosecutors like Mr. Rosenberg have recused themselves.

In an Op-Ed article in the New York Times on Wednesday, Thomas H. Kean and Lee H. Hamilton, the chairman and vice chairman of the Sept. 11 commission, said they believed that C.I.A. officials had deliberately withheld the tapes from the commission. They suggested that since the commission received its authority from both Congress and President Bush, any deliberate withholding of evidence might have violated federal law.

“Those who knew about those videotapes -- and did not tell us about them -- obstructed our investigation,” they wrote.

2.

Nation

CRIMINAL PROBE ON CIA TAPES OPENED
By Dan Eggen and Joby Warrick

** Case Assigned to Career Prosecutor **

Washington Post
January 3, 2008
Page A01

http://media.washingtonpost.com/wp-dyn/content/article/2008/01/02/AR2008010202060.html

The Justice Department said yesterday that it has opened a formal criminal investigation into the CIA's destruction of interrogation tapes, appointing a career prosecutor to examine whether intelligence officials broke the law by destroying videos of exceptionally harsh questioning of terrorism suspects.

The criminal probe, announced by Attorney General Michael B. Mukasey, significantly escalates a preliminary inquiry into whether the CIA's actions constituted an obstruction of justice. Officials have said that some White House and Justice Department lawyers advised the CIA not to destroy the tapes, which contained information of interest to the attorneys of detainees and to a congressionally chartered panel examining the Sept. 11, 2001, terrorist attacks.

The decision opens the door to fresh scrutiny of the CIA's activities by the FBI, which clashed repeatedly with CIA field officers over the use of the harsh interrogation techniques and ultimately withdrew its own agents from interrogations to avoid entanglement in activities that senior FBI officials considered improper.

To oversee the probe, Mukasey appointed John Durham, a career federal prosecutor from Connecticut, bypassing the department's Washington headquarters and the local U.S. attorney's office in Alexandria, which recused itself from the case.

"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," Mukasey said in a statement. He cautioned that "the opening of an investigation does not mean that criminal charges will necessarily follow."

The department said on Dec. 8 that it began a preliminary inquiry after the CIA's disclosure that its officers had destroyed videotapes of the interrogations of two senior al-Qaeda suspects in 2002. The CIA said Jose Rodriguez Jr., then the agency's director of clandestine operations, ordered the tapes' destruction, acting out of what agency officials initially said was concern that CIA interrogators could be at risk of terrorist retaliation.

Some former CIA officials later said that the destruction, which came shortly after the Washington Post disclosed the existence of secret CIA interrogation sites in Europe and elsewhere, was also prompted by concern that the interrogators could be at risk of prosecution.

Mukasey's decision was supported by some members of Congress, which has launched its own investigation of the matter. But House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) criticized the probe over its "limited scope" and advocated the appointment of "a more independent special counsel."

"Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency, and completeness," Conyers said in a statement.

Durham, who will lead the probe, is second-in-command at the U.S. attorney's office in Connecticut but will serve as an acting U.S. attorney and report to Craig Morford, the acting deputy attorney general and a former career prosecutor. Mukasey described Durham as "a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past."

Durham is well known as a publicity-averse specialist in organized crime cases. Former attorney general Janet Reno named him as a special prosecutor in the investigation of allegations that FBI agents and police officers in Boston had ties to Mafia informants, resulting in the 2002 racketeering conviction of one of the FBI agents. He is a registered Republican, according to Connecticut voter records.

Mukasey did not indicate in his statement whether he or any of his aides will recuse themselves from the probe. Democratic lawmakers have urged him to do so because some Justice Department lawyers had advised the CIA not to destroy the tapes.

Leaders of the House and Senate intelligence committees vowed to continue their separate inquiries, including a hearing on Jan. 16 at which they plan to grill Rodriguez. Various committee members have accused the CIA of not properly informing them about how the tapes came to be made and, later, destroyed, despite CIA statements to the contrary.

"Those tapes may have been evidence of a crime, and their destruction may have been a crime in itself," said Sen. Edward M. Kennedy (D-Mass.) in a statement yesterday. Jamal D. Ware , a senior member of the Republican staff of the House intelligence committee, said he supports the criminal probe, "given the failure to keep Congress fully and currently informed of the existence and destruction of these tapes and the apparent attempt to mislead the public about what the committee knew of the matter."

The CIA issued a statement promising to "cooperate fully with this investigation," which senior officials had expected. "Everyone understood this would not end with the preliminary inquiry," said one U.S. official familiar with the agency's decision-making.

A former senior intelligence official saw some benefit in the decision to appoint someone from outside Washington to head the probe. "It's not a bad idea to try to depoliticize the investigation -- to insulate the department as much as possible from the kind of political turmoil we often see in this town," the former official said, referring to the Justice Department.

Several officials said that the FBI has not been deeply involved in the tapes probe and that the decision to pursue a full-scale investigation was made by senior Justice Department officials, based on a finding by prosecutors in the National Security Division that evidence suggests criminal violations may have occurred.

The precise reason for the finding and the names of those targeted by the probe could not be learned yesterday.

Although the tapes in question were not provided to any court or to the members of the government-appointed 9/11 Commission, they were evidently seen by CIA Inspector General John L. Helgerson, who disclosed in a statement yesterday that he plans to recuse himself from the criminal inquiry to avoid a conflict of interest.

Helgerson said he and his staff "reviewed the tapes at issue some years ago," when agency officials were debating whether to destroy them. "During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said.

A Justice Department official, who spoke about internal deliberations on the condition of anonymity, said the U.S. attorney's office in Alexandria had recused itself to "err on the side of caution." Several cases handled by that office, including the prosecution and conviction of al-Qaeda operative Zacarias Moussaoui, involved CIA interrogations, possibly including those that had been videotaped.

--Staff writer John Solomon and staff researcher Julie Tate contributed to this report.

3.

Op-Ed contributors

STONEWALLED BY THE C.I.A.
By Thomas H. Kean and Lee H. Hamilton

New York Times
January 2, 2008

http://www.nytimes.com/2008/01/02/opinion/02kean.html?ref=opinion

WASHINGTON -- More than five years ago, Congress and President Bush created the 9/11 commission. The goal was to provide the American people with the fullest possible account of the “facts and circumstances relating to the terrorist attacks of Sept. 11, 2001” -- and to offer recommendations to prevent future attacks. Soon after its creation, the president’s chief of staff directed all executive branch agencies to cooperate with the commission.

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes -- and did not tell us about them -- obstructed our investigation.

There could have been absolutely no doubt in the mind of anyone at the C.I.A. -- or the White House -- of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

When the press reported that, in 2002 and maybe at other times, the C.I.A. had recorded hundreds of hours of interrogations of at least two Qaeda detainees, we went back to check our records. We found that we did ask, repeatedly, for the kind of information that would have been contained in such videotapes.

The commission did not have a mandate to investigate how detainees were treated; our role was to investigate the history and evolution of Al Qaeda and the 9/11 plot. Beginning in June 2003, we requested all reports of intelligence information on these broad topics that had been gleaned from the interrogations of 118 named individuals, including both Abu Zubaydah and Abd al Rahim al-Nashiri, two senior Qaeda operatives, portions of whose interrogations were apparently recorded and then destroyed.

The C.I.A. gave us many reports summarizing information gained in the interrogations. But the reports raised almost as many questions as they answered. Agency officials assured us that, if we posed specific questions, they would do all they could to answer them.

So, in October 2003, we sent another wave of questions to the C.I.A.’s general counsel. One set posed dozens of specific questions about the reports, including those about Abu Zubaydah. A second set, even more important in our view, asked for details about the translation process in the interrogations; the background of the interrogators; the way the interrogators handled inconsistencies in the detainees’ stories; the particular questions that had been asked to elicit reported information; the way interrogators had followed up on certain lines of questioning; the context of the interrogations so we could assess the credibility and demeanor of the detainees when they made the reported statements; and the views or assessments of the interrogators themselves.

The general counsel responded in writing with non-specific replies. The agency did not disclose that any interrogations had ever been recorded or that it had held any further relevant information, in any form. Not satisfied with this response, we decided that we needed to question the detainees directly, including Abu Zubaydah and a few other key captives.

In a lunch meeting on Dec. 23, 2003, George Tenet, the C.I.A. director, told us point blank that we would have no such access. During the meeting, we emphasized to him that the C.I.A. should provide any documents responsive to our requests, even if the commission had not specifically asked for them. Mr. Tenet replied by alluding to several documents he thought would be helpful to us, but neither he, nor anyone else in the meeting, mentioned videotapes.

A meeting on Jan. 21, 2004, with Mr. Tenet, the White House counsel, the secretary of defense, and a representative from the Justice Department also resulted in the denial of commission access to the detainees. Once again, videotapes were not mentioned.

As a result of this January meeting, the C.I.A. agreed to pose some of our questions to detainees and report back to us. The commission concluded this was all the administration could give us. But the commission never felt that its earlier questions had been satisfactorily answered. So the public would be aware of our concerns, we highlighted our caveats on page 146 in the commission report.

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. 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 the greatest tragedies to confront this country. We call that obstruction.

--Thomas H. Kean and Lee H. Hamilton served as chairman and vice chairman, respectively, of the 9/11 commission.

4.

[Blog]

9/11 COMMISSION: OUR INVESTIGATION WAS "OBSTRUCTED"
By Glenn Greenwald

Salon.com
January 2, 2008

http://www.salon.com/opinion/greenwald/2008/01/02/obstruction/index.html

The bi-partisan co-chairmen of the 9/11 Commission, Tom Kean and Lee Hamilton, jointly published an Op-Ed in today's New York Times which contains some extremely emphatic and serious accusations against the CIA and the White House. [See #4 below.] The essence: "[T]he recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes -- and did not tell us about them -- obstructed our investigation."

More strikingly still, they explicitly include the White House at the top of their list of guilty parties: "There could have been absolutely no doubt in the mind of anyone at the C.I.A. -- or the White House -- of the commission's interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations."

To underscore the seriousness of their accusations, Keane and Hamilton end with this: "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 the (sic) greatest tragedies to confront this country. We call that obstruction."

It's hard to imagine a more serious scandal than this. As I noted the other day, it is a confirmed fact that Alberto Gonzales and David Addingtion -- the top legal representatives of George Bush and Dick Cheney, respectively -- participated in discussions as to whether those videotapes should be destroyed. The White House refuses to disclose what these top officials said in those meetings. Did they instruct that the videos should be destroyed or fail to oppose their destruction? The NYT previously quoted one "senior intelligence official with direct knowledge of the matter [who] said there had been 'vigorous sentiment' among some top White House officials to destroy the tapes."

Thus, we have evidence that "top White House officials" vigorously argued that these videos should be destroyed. The number one aides to both the president and vice president both participated in discussions as to whether they should be, almost certainly with the knowledge and at the direction of their bosses.

And now we have the 9/11 Commission Chairmen stating as explicitly as can be that the mere concealment (let alone destruction) of these videos constituted the knowing and deliberate obstruction of their investigation into the worst attack on U.S. soil in our history. Combined with the fact that the videos' destruction almost certainly constitutes "obstruction of justice" with regard to numerous judicial proceedings as well, we're talking here about extremely serious felonies at the highest levels of our government.

Both legally and politically, it's hard to imagine a more significant scandal than the president and vice president deliberately obstructing the investigation of the 9/11 Commission by concealing and then destroying vital evidence which the Commission was seeking. Yet that's exactly what the evidence at least suggests has occurred here.

What possible justification is there for the White House to refuse to say what the role of Addington, Gonzales, Bush, and Cheney was in all of this? Having been ordered by Bush's new attorney general not to investigate, are the Senate and House Intelligence Committees (led by the meek Silvestre Reyes and the even meeker Jay Rockefeller) going to compel answers to these questions? In light of this Op-Ed, do Mitt Romney, John McCain, Rudy Giuliani, Fred Thompson, and Mike Huckabee think the White House should publicly disclose to the country the role Bush and Cheney played in the destruction of this evidence? If there are any reporters left who aren't traipsing around together in Iowa, it seems pretty clear that this story ought to be dominating the news.

UPDATE: Michael Mukasey does the right thing:

The Justice Department opened a criminal investigation into the destruction of CIA interrogation videotapes and Attorney General Michael B. Mukasey appointed an outside prosecutor to oversee the case. . . .

"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," Mukasey said in a statement released Wednesday.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.

Marcy Wheeler has some background on Durham that looks encouraging. In his written statement, Mukasey said: "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 . . . . 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."

There are some important, unknown details here, such as whether there are limits on the scope of the investigation and what powers the outside prosecutor will have. But by all appearances, Mukasey here did exactly what he should have done. As Patrick Fitzgerald's investigation demonstrated, an honorable, aggressive independent prosecutor and clear acts of White House lawbreaking can be a potent combination.

UPDATE II: A more developed AP article fills in one important detail which I indicated was missing. It reports that Durham "will not serve as a special prosecutor such as Patrick Fitzgerald, who operated autonomously while investigating the 2003 leak of a CIA operative's identity."

When the Plame investigation began, John Ashcroft recused himself from any involvement in the investigation (due to his multiple ties to numerous subjects of the investigation), and his deputy, James Comey, then named Fitzgerald and assigned him full authority (.pdf) to exercise independently all powers of the Attorney General. Here, from what I can tell, at least from the AP article, Mukasey is not recusing himself, and the DOJ will thus retain authority over the prosecutor and the investigation. I'd want to know more details about that before drawing conclusions about what it means exactly.

UPDATE III: Former DOJ official Marty Lederman:

Initial reports are that the Attorney General appointed an "outside" counsel to oversee the criminal investigation of the CIA tape destruction. But there's nothing really "outside" about John Dunham. He's a career DOJ prosecutor, the number two official in the U.S. Attorney's Office in Connecticut. . . .

This is not like the Scooter Libby case, in which the "special" prosecutor was guaranteed substantial independence from Main Justice.

The initial press reports were wrong in what they described. The only thing that is at all out of the ordinary in terms of who will manage this criminal prosecution is that the U.S. Attorney's Office that ordinarily would handle it -- the Eastern District of Virginia -- recused itself (for reasons that are unknown, but almost certainly because the destruction of the videotapes may constitute obstruction of justice in cases that office prosecuted, such as the Moussaoui and Padilla prosecutions). Thus, DOJ simply assigned prosecutorial responsibility instead to Durham, who ordinarily works in the Connecticut U.S. Attorney's office. But the case is just like any other case within the DOJ, and Mukasey, as Attorney General, retains supervisory responsibility over it.

Lederman says that this is not surprising -- and implies that there's nothing improper about it -- since there is no formal reason why Mukasey should recuse himself (the way that Ashcroft's multiple ties to Rove and others led him to do so). That might be, but the fact that Mukasey appears to retain control certainly ought to undermine public confidence in this investigation, at least to the extent that it ought not impede the Senate and House Intelligence Committees from aggressively investigating what occurred here.

UPDATE IV: The Washington Post adds a few details, including that Durham "will report to the deputy attorney general" (Acting DAG Craig Morford); that "Former attorney general Janet Reno named Durham as a special prosecutor to investigate allegations that FBI agents and police officers in Boston had ties to mafia informants"; that he is a "registered Republican"; that both CIA Director Michael Hayden and CIA Inspector General John Helgerson both recused themselves from the investigation; and that it is unclear whether Mukasey and his aides will also recuse themselves from any involvement here, as Democrats have previously demanded.

UPDATE V: House Judiciary Committee Chairman John Conyers is unhappy that the prosecutor here will lack independence: "While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department's own regulations and declined to appoint a more independent special counsel in this matter. . . . The Justice Department's record over the past seven years of sweeping the administration's misconduct under the rug has left the American public with little confidence in the administration's ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency, and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues."

In one sense, one could argue that it's unfair to impute the corruption of Alberto Gonzales to Michael Mukasey and simply to assume that a fair investigation therefore won't be conducted (particularly given that a prosecutor like Durham would unlikely tolerate undue interference).

But I think Conyers' broader point is more persuasive: the record of this administration leaves no doubt that they will interfere as much as they can to prevent any type of accountability for their actions, and that fact alone -- regardless of one's views of Mukasey -- compels as independent an investigation as possible, one that resides beyond the suspicions that a passing familiarity with this administration necessarily and quite reasonably engenders.

5.

White House Watch

WILL JUSTICE GO AFTER CHENEY?
By Dan Froomkin

Washington Post
January 3, 2008 -- 12:46 p.m. EST

http://www.washingtonpost.com/wp-dyn/content/blog/2008/01/03/BL2008010302043.html

How high will the newly-launched criminal investigation into the CIA's destruction of interrogation tapes go? And will it eventually target Vice President Cheney?

Cheney has been the administration's central figure on all things related to torture. It was Cheney who pushed so hard for "flexibility" in interrogations of terrorist suspects. Former secretary of state Colin Powell's chief of staff, Lawrence Wilkerson, has long argued that it is "clear that the Office of the Vice President bears responsibility for creating an environment conducive to the acts of torture and murder committed by U.S. forces in the war on terror."

In the weeks proceeding the November 2005 destruction of the torture tapes, Cheney was pulling out all the stops in a failed lobbying effort to get fellow Republicans on the Hill to exempt the CIA from a proposed torture ban. Cheney's arm-twisting was so unseemly that a Washington Post editorial dubbed him the "Vice President for Torture." (When the law passed, Cheney's office authored a " signing statement" for Bush, in which he reserved the right to ignore it.)

So it should have come as no surprise when the New York Times reported last month that David S. Addington, Cheney's chief of staff and former legal counsel, was among the three White House lawyers who participated in at least one key meeting about the videotapes in 2004.

(For background on Addington, the indomitable and secretive agent of Cheney's will, see this May 2006 profile by Chitra Ragavan in U.S. News; this July 2006 profile by Jane Mayer in the New Yorker, and my Sept. 5 column.)

The initial spin from the White House was that only Harriet E. Miers, then a deputy White House chief of staff, had been briefed about the tapes -- and that she had advised against their destruction.

But with anything related to torture, it's pretty clear the CIA took its orders from Cheney -- via Addington. And how plausible is it that, in his exchanges with the CIA, Addington advised against the tapes' destruction? Or that the CIA would have done it if he had told them not to? Isn't it more likely that he supported the idea, either overtly or with a nod and a wink?

So one has to wonder what will happen if Addington is hauled in front of a grand jury to testify not just about his relevant conversations with the CIA, but about his conversations with Cheney.

"Did you, Mr. Addington, indicate in any way to the CIA that destroying the tapes would be acceptable, or even preferable? Did you do so based on instructions from your boss, the vice president?"

Wouldn't it be interesting to hear Addington answer those questions under oath?

Then again, he might just lie.

The last time a federal prosecutor got close to Cheney, of course, was in the CIA leak case. Special prosecutor Patrick Fitzgerald, who investigated the outing of Valerie Plame as a CIA agent, indicated during and after the trial of Cheney's chief of staff, I. Lewis 'Scooter' Libby, that he had been hot on the trail of the vice president himself until Libby obstructed his investigation.

There was considerable evidence that it was Cheney who instructed Libby to out Plame as part of a no-holds-barred crusade against her husband, an administration critic. Libby's own notes showed he first heard about Plame from Cheney. But when the FBI came calling, Libby denied remembering anything about that or any other related conversations with Cheney, choosing instead to make up a fanciful story about having learned of Plame's identity from NBC's Tim Russert.

When Libby was indicted and stepped down as chief of staff, Cheney's choice to replace him was obvious: He chose Addington.

THE COVERAGE

Dan Eggen and Joby Warrick write in the Washington Post: "The Justice Department said yesterday that it has opened a formal criminal investigation into the CIA's destruction of interrogation tapes, appointing a career prosecutor to examine whether intelligence officials broke the law by destroying videos of exceptionally harsh questioning of terrorism suspects.

"The criminal probe, announced by Attorney General Michael B. Mukasey, significantly escalates a preliminary inquiry into whether the CIA's actions constituted an obstruction of justice. . . .

"To oversee the probe, Mukasey appointed John Durham, a career federal prosecutor from Connecticut, bypassing the department's Washington headquarters and the local U.S. attorney's office in Alexandria, which recused itself from the case. . . .

"Leaders of the House and Senate intelligence committees vowed to continue their separate inquiries, including a hearing on Jan. 16 at which they plan to grill Rodriguez. Various committee members have accused the CIA of not properly informing them about how the tapes came to be made and, later, destroyed, despite CIA statements to the contrary."

Mark Mazzetti and David Johnston write in the New York Times: "The announcement is the first indication that investigators have concluded on a preliminary basis that C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which recorded the interrogations in 2002 of two operatives with Al Qaeda and were destroyed in 2005.

"C.I.A. officials have for years feared becoming entangled in a criminal investigation involving alleged improprieties in secret counterterrorism programs. Now, the investigation and a probable grand jury inquiry will scrutinize the actions of some of the highest-ranking current and former officials at the agency. . . .

"The question of whether to destroy the tapes was for nearly three years the subject of deliberations among lawyers at the highest levels of the Bush administration. . . .

"Among White House lawyers who took part in discussions between 2003 and 2005 about whether to destroy the tapes were Mr. Gonzales, when he was White House counsel; Harriet E. Miers, Mr. Gonzales's successor as counsel; David S. Addington, who was then counsel to Vice President Dick Cheney; and John B. Bellinger III, then the legal adviser to the National Security Council. It is unclear whether anyone outside the C.I.A. endorsed destroying the tapes."

And here's a sobering point from Mazzetti and Johnston: "The new Justice Department investigation is likely to last for months, possibly beyond the end of the Bush administration."

Greg Gordon writes for McClatchy Newspapers that, according to an unnamed U.S. government official, "Jose Rodriguez, the CIA's chief of clandestine services, had ordered the destruction of the tapes after consulting agency lawyers. However, the lawyers had 'an expectation . . . that additional bases would be touched,' the official said.

"It couldn't be learned whether Rodriguez, who's declined to speak publicly, will assert that he was acting on orders from above, but former colleagues say he was a cautious officer."

Evan Perez writes in the Wall Street Journal: "Some Democrats . . . have pushed for the Justice Department to name an independent special counsel and aren't pleased with the appointment of Mr. Durham, who will report directly to the deputy attorney general. The law governing independent counsels expired in 1999, when Congress didn't renew it. In the case of the investigation into the leak of the identity of CIA officer Valerie Plame, overseen by Patrick Fitzgerald, the U.S. attorney in Chicago, some critics of the Bush administration complained that the probe never answered key questions because he didn't publish a final investigative report, as an independent counsel would do.

"Michigan Democratic Rep. John Conyers, chairman of the House Judiciary Committee, said of Mr. Mukasey's move: 'Because of this action, the Congress and the American people will be denied -- as they were in the Valerie Plame matter -- any final report on the investigation.'"

Dafna Linzer writes in the Washington Post: "John H. Durham, who was appointed yesterday to lead a criminal probe into the destruction of the CIA's interrogation tapes, oversaw corruption charges against a Republican governor in Connecticut, put away FBI agents in Boston and prosecuted many of New England's Mafia bosses. . . .

"Former colleagues said the deputy U.S. attorney is known for seeking maximum sentences, shunning plea bargains, and avoiding the spotlight. Four friends said they could not recall him losing a case in more than 30 years as a prosecutor, almost all of it spent fighting organized crime and gang violence in Connecticut. . . .

"Several courtroom adversaries compared Durham, a Roman Catholic reared in the Northeast, to Patrick J. Fitzgerald, the staid U.S. attorney in Chicago who served as special prosecutor in the investigation of the leaked identity of a CIA officer. 'He's Fitzgerald with a sense of humor,' said Hugh O'Keefe, a Connecticut criminal defense lawyer who has known Durham for 20 years.

"But Durham has had little experience with national security issues and with cases involving executive authority that appear to be less than black-and-white. His probe may require calling lawyers and aides to Bush, Vice President Cheney, Secretary of State Condoleezza Rice, and the CIA before a grand jury to testify about their knowledge of the tapes' destruction."

Matt Apuzzo notes for the Associated Press: "Since leaving the White House shortly before Christmas, President Bush has not addressed the tapes' destruction. Before going to Camp David, then his ranch in Crawford, Texas, Bush said he was confident that investigations by Congress and the Justice Department 'will end up enabling us all to find out what exactly happened.'

"He repeated his assertion that his 'first recollection' of being told about the tapes and their destruction was when CIA Director Michael Hayden briefed him on it in early December."

OPINION WATCH

The New York Times editorial board writes: "It is essential that the truth of what was on those tapes and how they came to be destroyed now comes out and that all of the government officials involved in their destruction be held legally accountable -- whether they are C.I.A. officers or top White House officials who spent three years debating whether to destroy the tapes.

"The tapes, which depicted the interrogations of two Al Qaeda operatives in 2002, may themselves have amounted to evidence of a crime -- torture -- carried out under the president's authority. The decision to destroy them appears to be one more move by the Bush administration to cover up the many abuses it has committed in the name of fighting terrorism."

The Washington Post editorial board writes: "In all likelihood, the Justice Department investigation will focus narrowly on whether the destruction of the tapes constituted a crime; it will probably not delve into whether the tapes depicted a crime, namely torture. Congress should continue to demand answers about the administration's past and current detention and interrogation policies."

CHENEY AT WORK

Here's another example of Cheney at work.

Newsweek's Michael Isikoff interviews J. William Leonard, the director of the National Archives' Information Security Oversight Office (ISOO), who "learned the hard way the perils of questioning Vice President Dick Cheney." Leonard "challenged claims by the Office of Vice President (OVP) to be exempt from federal rules governing classified information. His efforts touched off a firestorm -- and a counter-strike by Cheney's chief of staff, David Addington, who tried to wipe out Leonard's job."

Newsweek: "Explain how all this happened."

Leonard: "Up until 2002, OVP was just like any other agency. Subsequent to that, they stopped reporting to us. . . . At first, I took that to be, 'we're too busy.' Then we routinely attempted to do a review of the OVP and it was at that point in time it was articulated back to me that: 'well they weren't really subject to our reviews.' I didn't agree with it. But you know, there is a big fence around the White House. I didn't know how I could get in there if somebody didn't want me to."

Newsweek: "So how did matters escalate?"

Leonard: "The challenge arose last year when the *Chicago Tribune* was looking at [ISOO's annual report] and saw the asterisk [reporting that it contained no information from OVP] and decided to follow up. And that's when the spokesperson from the OVP made public this idea that because they have both legislative and executive functions, that requirement doesn't apply to them. . . . They were saying the basic rules didn't apply to them. I thought that was a rather remarkable position. So I wrote my letter to the Attorney General [asking for a ruling that Cheney's office had to comply.] Then it was shortly after that there were [email] recommendations [from OVP to a National Security Council task force] to change the executive order that would effectively abolish [my] office."

Newsweek: "Who wrote the emails?"

Leonard: "It was David Addington."

Newsweek: "No explanation was offered?"

Leonard: "No. It was strike this, strike that. Anyplace you saw the words, 'the director of ISOO' or 'ISOO' it was struck. . . . "

Newsweek: "A number of people have noted that the vice president's office stopped reporting to you and complying with ISOO in the fall of 2003 when the whole Valerie Plame case blew up. Do you think there was a connection?"

Leonard: "I don't have any insight. I was held at arms length [from that.] But some of the things based on what I've read [have] given me cause for concern. A number of prosecution exhibits [in the Plame-related perjury trial of I. Scooter Libby, Cheney's former chief of staff] were annotated, 'handle as SCI.' SCI is Sensitive Compartmentalized Information, the most sensitive classified information there is. As I recall, [one of them] was [the vice president and his staff] were coming back from Norfolk where they had attended a ship commissioning and they were conferring on the plane about coming up with a [media] response plan [to the allegations of Plame's husband, Iraq war critic Joseph Wilson.] That was one of the exhibits marked, 'handle as SCI.'"

Newsweek: "These were internal communications about what to say to the press?"

Leonard: "Let me give you some the irony of that. Part of the National Archives is the presidential libraries. . . . So we're going to have documents [at the libraries] with the most sensitive markings on it that isn't even classified. If I were going to do a review [of OVP], that would be one of the questions I would want to ask: What is this practice? And how widespread is it? And what is the rationale? How do we assure that people don't get this mixed up with real secrets?"

CHENEY AT WORK, PART II

Los Angeles Times reporter Janet Wilson recently described the series of events that led to the controversial decision by the head of the U.S. Environmental Protection Agency to ignore his staff's recommendations and deny California's request for a waiver to implement a landmark law slashing vehicle emissions.

So what was the deciding factor for Stephen L. Johnson?

Wilson wrote: "Some [EPA] staff members believe Johnson made his decision after auto executives met with Vice President Dick Cheney and after a Chrysler executive delivered a letter to the White House outlining why neither California nor the EPA should be allowed to regulate greenhouse gases, among other reasons. The *Detroit News* reported Wednesday that chief executives of Ford and Chrysler met with Cheney last month."

WHITE HOUSE PRIORITIES

From yesterday's briefing with White House press secretary Dana Perino.

Q: "This begins President Bush's final year in the White House. What would you say are his most important goals, his priorities, the things on his 'must-do' list before he leaves the White House?"

Perino: "Well, there's a few things that we need to do with Congress on. While we were able to achieve some things last year, there's a lot of unfinished business. In regards to working with Congress, one of the first things that they need to do when they return is to pass and permanently establish the intelligence community reforms for the Foreign Intelligence Surveillance Act -- the FISA bill. . . .

"We'll also need to move forward on -- hopefully the No Child Left Behind reauthorization. . . .

"In the last four months, when the President has asked Congress to move forward on housing legislation in order to help stabilize that market and to help homeowners who are having some difficulty, they've only passed one of the pieces of legislation the President asked for. . . .

"In addition to that, we have free trade agreements that are on the table. . . . And in addition to that, we have many outstanding nominations that need to be confirmed, both judicial and also throughout the government. . . .

"And then of course we'll have to go through the joy of trying to pass a budget again. . . .

"In addition to that, though, the President has a lot of things he wants to do to consolidate the gains that we've made in the global war on terror. . . .

"In addition, as you know, next Tuesday the President leaves for a trip to the Middle East, where he will continue to help the Palestinians and the Israelis seize this opportunity to try to get to a peace settlement where we can have a Palestinian state. . . . Beyond that, you know he'll be going to Africa. He's got many economic meetings to come, international meetings, including the G8. So there's a lot of things that we have to get done. He says he wants to sprint to the finish. I saw him this morning. He said he got a lot of great rest and that he's ready to work."

It fell to Hearst columnist Helen Thomas to point out something that apparently slipped Perino's mind.

Q: "It's missing in your whole category of goals for his last year in office -- peace in Iraq."

Perino: "I should have mentioned, of course -- my list was not considered exhaustive as I ticked it off of the top of my head."