Michael Mukasey has decided to open a criminal investigation into the destruction of videotaped interrogations conducted by the CIA that included waterboarding. John Durham, the federal prosecutor for Connecticut, will head the probe. It raises the stakes for everyone involved in the destruction of the tapes, which the CIA denied ever having and kept from the 9/11 Commission:
The Justice Department opened a full criminal investigation Wednesday into the destruction of CIA interrogation videotapes, putting the politically charged probe in the hands of a mob-busting public corruption prosecutor with a reputation as being independent.
Attorney General Michael Mukasey announced that he was appointing John Durham, a federal prosecutor in Connecticut, to oversee the investigation of a case that has challenged the Bush administration's controversial handling of terrorism suspects.
The CIA acknowledged last month that in 2005 it destroyed videos of officers using tough interrogation methods while questioning two al-Qaida suspects. The acknowledgment sparked a congressional inquiry and a preliminary investigation by Justice into whether the CIA violated any laws or obstructed congressional inquiries such as the one led by the Sept. 11 Commission.
"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.
The announcement comes on the same day that the two co-chairs of the 9/11 Commission published an essay in the New York Times accusing the CIA of obstruction. Lee Hamilton and Thomas Kean detail how they requested precisely this kind of material from the CIA, but were told it didn't exist -- well before the destruction of the tapes in 2005. Given a charter by both Congress and the President, the panel attempted to validate the information given it by checking some of the source material, only to be rebuffed, and rebuffed again when they requested an interview with Abu Zubaydah, one of the terrorists whose interrogation was on the tapes:
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.
Mukasey chose his lead investigator wisely. John Durham has extensive experience in politically sensitive investigations. Durham won an award in 2003 for his prosecution of former FBI agent John J. Connolly, Jr. He won convictions in that case for racketeering, obstruction of justice, lying to the FBI, bribery and leaking FBI information to two Southies. He also ran the corruption prosecution that wound up convicting Governor John Rowland to prison, along with a number of his aides. Like Rudy Giuliani, he has a track record in Mafia prosecutions that show his mettle as a tough, straight-arrow prosecutor.
Durham will not operate as an independent counsel in the manner of Patrick Fitzgerald or Ken Starr. The DoJ will instead do its own work, as it should, in determining whether a crime was committed and who committed it. Durham will have accountability, but also wide latitude to pursue the case. Mukasey went outside of the DC power structure after several recusals allowed him to select the best jurisdiction for the case. Mukasey puts himself on the line through this action, and Congress will hold him accountable.
Mukasey has proven himself to be a good choice as AG. The DoJ needed to send a statement showing that they understood the seriousness of this issue. Regardless of whether we like the current administration or not, we cannot allow destruction of evidence and obstruction of investigations to go unchallenged. Congress represents the people, and when both Congress and the President charter a commission to investigate anything -- especially an intelligence failure that resulted in the deaths of thousands of Americans -- the subsidiary agencies are expected to cooperate. That's a big enough problem without the rather transparent coincidence of the tapes' destruction just as Congress got interested in the topic of waterboarding.
Durham will have his opportunity to determine whether anyone broke the law. People across the political spectrum should cheer this opportunity to clear the air and to see that the rule of law prevails.