Think Progress

Limited Investigation Of Torture Tapes

On Wednesday, Attorney General Michael Mukasey announced that the Department of Justice was opening a criminal investigation into the CIA's destruction of videotapes showing the interrogation of top al Qaeda detainees. "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." Yesterday, the CIA declassified letters from 2003 between Rep. Jane Harman (D-CA), formerly the top Democrat on the House Intelligence Committee, and Scott Muller, then-CIA general counsel. The letters, the content of which Harman first disclosed in early December when the story about the tapes' destruction broke, show that Harman explicitly warned against destroying the tapes. She wrote that "the fact of destruction would reflect badly poorly on the Agency." She also expressed concern over the "enhanced" interrogation methods, wondering whether they had been "authorized and approved by the president." Muller ignored both her points in his reply. Now that it is abundantly clear that members of Congress -- if not top White House lawyers -- warned the CIA against destroying the tapes, the Department of Justice inquiry is a welcome step toward examining the CIA's decision to destroy these tapes. But questions still linger about the independent authority of the acting U.S. Attorney appointed to oversee the investigation and the seemingly narrow scope of the investigation.

WHO IS JOHN DURHAM? Calling him a "widely respected and experienced career prosecutor," Mukasey appointed John Durham, the first assistant U.S. Attorney in Connecticut, to oversee the investigation as acting U.S. Attorney for the Eastern District of Virginia. "The probe would normally be handled by the U.S. attorney in eastern Virginia, where the CIA headquarters are located, but the office recused itself." Durham comes with the experience of having been appointed by Janet Reno, the attorney general in 1998, "to explore allegations that FBI agents and police officers in Boston have been in bed with the mob." Jeffrey Meyer, a Quinnipiac University law school professor, said of Durham, "As far as I can tell, he does not have a political bone in his body." Although media reports have praised the appointment of an "outside" counsel to oversee the investigation, Georgetown Law professor Marty Lederman pointed out that "there's really nothing 'outside' about John Durham." He "will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey," the Attorney General who serves "at the pleasure of the President." Center for American Progress Senior Fellow Mark Agrast called Durham's appointment a "positive step, but does not obviate the need for the congressional committees to press on with their own inquiries."

INDEPENDENT INVESTIGATOR? Yesterday, President Bush affirmed his support for the investigation, saying the White House "will participate." But it is unclear whether Durham will have the necessary authority to call all relevant witnesses and gain access to all the facts, should he face objections by the White House. The conservative New York Sun celebrated that "the executive branch is handing its own affairs, which is as it should be." House Judiciary Committee Chairman John Conyers (D-MI) called for a more independent counsel to lead the investigation. "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," Conyers said. The New York Times editorial board recognized Durham's experience that made him fit for the job, and added, "We hope he will also have the independence he needs to do it correctly." Slate's Dahlia Lithwick wrote, "Whether Durham will prove more like Mukasey or more like Patrick Fitzgerald -- the dogged special prosecutor in the Valerie Plame case -- is the question on everyone's mind today. That alone may prove the difference between a government whitewash and a serious investigation."

A TOO-LIMITED INVESTIGATION? In an op-ed in Wednesday's New York Times, 9/11 commission co-chairs Thomas Kean and Lee Hamilton asserted that the panel had been "stonewalled by the CIA." "Those who knew about those videotapes -- and did not tell us about them -- obstructed our investigation," they wrote. The obstruction charge is not the only potential crime being investigated. George Washington University Law School professor Jonathan Turley said that there were "at least six" potential criminal charges, including obstruction of Congress, obstruction of justice, perjury, and conspiracy. "But the original one is torture," Turley said. "You know, many people in Congress and in the White House and at the Justice Department are framing this as an obstruction investigation, as if what's on those tapes is an episode of 'Barney.' What's on those tapes is the original crime in the scandal, and that's the crime of torturing people." Conyers is similarly concerned. Calling for an independent special counsel, Conyers said, "Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations." CIA Inspector General John Helgerson announced that he would recuse himself from the investigation because he and his staff had "reviewed the tapes at issue some years ago." Blogger Marcy Wheeler speculates that this "strongly suggests he may have based his [2004] report -- which found the CIA to engage in cruel and inhuman treatment -- on those tapes." Wheeler adds, "No wonder the CIA wanted to destroy them."

The research team that brings you The Progress Report and ThinkProgress.org needs spring interns! Click here for more information.

"A federal judge yesterday severely limited the Navy's ability to use mid-frequency sonar on a training range off the Southern California coast, ruling that the loud sounds would harm whales and other marine mammals if not tightly controlled."

TEXAS: Elsa Murano becomes the first female and first Hispanic to hold the president's post at Texas A&M University.

KANSAS: Kansas residents overwhelmingly favor a decision to kill two coal plants.

CALIFORNIA: State says its plan is more than twice as effective in reducing greenhouse gases by 2016 than the new federal fuel-economy law.

MINNESOTA: "Fellow attorneys, political leaders and court-watchers praised the appointment...of an experienced prosecutor to replace Rachel Paulose in the U.S. attorney's office in Minnesota."

THINK PROGRESS: The Bush administration misses the deadline to respond to KBR rape questions.

HUFFINGTON POST: Pat Robertson predicts "God's going to give us China" in 2008.

MEDIA MATTERS: Bill O'Reilly refuses to admit mistake when a child points out that he confused the Constitution with the Declaration of Independence.

QUEERTY: Only terrorists and gays are left out of Iraq's new amnesty plan.

"God's going to give us China. And China will be the largest Christian nation on the face of the earth. They're going to come to Jesus."
-- Christian broadcaster Pat Robertson, 1/2/08, with his global predictions after this year's annual conversation with God

VERSUS

"The fall elections will be inconclusive, but the outcome of the war and the success of the economy will leave the Republicans in charge."
-- Robertson, 1/06