January 3, 2008
DOJ Opens a Criminal Investigation of the CIA's Destruction of Interrogation Tapes
Washington, D.C. has been riveted on the CIA's destruction of videotapes of interrogations of two detainees despite judicial directions that they be preserved. After a preliminary inquiry by the National Security Section of the Department of Justice, Attorney General Mukasey announced (here) that he directed the opening of a full-scale criminal investigation of the decision to destroy the tapes. The interesting part of the announcement was that the investigation will be led by the First Assistant U.S. Attorney for the District of Connecticut, John Durham, although not as a special counsel along the lines of Patrick Fitzgerald's appointment to investigate the leak of Valerie Plame's identity as a CIA operative. Durham will be the Acting U.S. Attorney for the Eastern District of Virginia, which has jurisdiction over CIA matters because the agency's headquarters is in Langley. According to a statement issued by AG Mukasey, Durham's appointment came about because "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."
Durham will have the same authority as any U.S. Attorney, which means his investigation is subject to the normal supervision by the Attorney General as in any other case. Fitzgerald, on the other hand, had a broader grant of authority, as outlined in a letter (here) dated December 30, 2003, from Acting Attorney General James Comey: "I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department." Durham certainly does not have that measure of independence, and he is not a "special counsel" or otherwise outside the normal chain-of-command at the Department of Justice.
The Attorney General's announcement notes that the entire U.S. Attorney's Office is recused, and not just U.S. Attorney Charles Rosenberg. That office was responsible for the prosecution of Zacarias Moussaoui, a case involving issues related to detainee interrogations, so that may be the source of the recusal decision. Durham will likely draw on Assistant U.S. Attorneys from Connecticut to assist him, and perhaps attorneys from the National Security Section at Main Justice.
Some in the media have speculated that Attorney General Mukasey's announcement shows he is independent of the White House -- the whole "loyal Bushie" issue that plagued his predecessor. This announcement does not necessarily establish such independence, unless the bar has been lowered to such a degree that a routine decision to follow normal Department of Justice protocol for dealing with a case somehow shows the AG is beyond the reach of political pressure. Once the National Security Section made its recommendation to upgrade the case to a full-scale investigation, AG Mukasey had little choice but to move forward. Independence is more a matter of support, and allowing those leading the investigation to see the through to its proper conclusion, not just picking someone experienced to lead it. Durham is well-regarded as a career prosecutor, but dealing with the CIA and issues related to a political hot potato will require special skills. Time will tell. (ph)
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