The Justice Department said Wednesday that it had opened a full investigation into possible criminal wrongdoing in the CIA’s destruction in 2005 of videotapes of terrorism suspects’ interrogations.
Signaling resolve to get to the bottom of a case that has touched off a political and legal firestorm, Atty. Gen. Michael B. Mukasey announced that he was appointing a mob-busting prosecutor from Connecticut with experience at rooting out official misconduct to oversee the investigation. The unusual move means that the U.S. attorney’s office in Virginia, which normally handles CIA investigations, will play no role in the case.
Though the opening of an investigation does not mean that criminal charges will necessarily follow, it does raise the stakes for the agency and its employees who were involved in or had knowledge of the tapes and how they were handled internally.
Heading the investigation will be John H. Durham, an assistant U.S. attorney in Connecticut for more than 25 years who is known as one of the government’s most relentless prosecutors. Durham has prosecuted an array of mobsters and political figures, including former Connecticut Gov. John G. Rowland.
CIA Director Michael V. Hayden acknowledged last month that in late 2005 his agency had destroyed videotapes of the interrogations of two Al Qaeda operatives. The tapes, which were made three years earlier, included footage of harsh interrogation methods that had been the subject of intense public and congressional debate.
After the disclosures, the Justice Department and the CIA office of the inspector general began a preliminary inquiry to see whether there was evidence of potential criminal activity.
“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 Wednesday.
The attorney general did not elaborate on what evidence the department turned up or what potential violations of law were being explored. But the destruction of evidence pertinent to an ongoing congressional or judicial proceeding could be considered obstruction of justice.
“The attorney general’s announcement . . . shows that many of us were right to be concerned with possible obstruction of justice and obstruction of Congress,” Sen. Patrick J. Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, said.
CIA spokesman Mark Mansfield said the agency would, “of course, cooperate fully with this investigation, as it has with the others into this matter.”
The agency’s inspector general, John L. Helgerson, said Wednesday that he was removing himself from the investigation because he anticipated being called as a witness. Helgerson was involved in reviewing the tapes as part of an internal inquiry of CIA detention and interrogation practices some years ago.
Durham, the Connecticut investigator, is perhaps best known for heading a Justice Department task force that reviewed allegations of criminal conduct by the FBI and other law enforcement agencies in Boston. Among other figures, he successfully prosecuted retired FBI agent John J. Connolly Jr. for leaking FBI information to James “Whitey” Bulger and Stephen “the Rifleman” Flemmi, two leaders of a notorious south Boston gang.
Then-Atty. Gen. Janet Reno turned to Durham in 1999 to head up that investigation because law enforcement in the Boston area had a conflict of interest. Similar considerations apparently drove Mukasey to select Durham to oversee the CIA investigation.
Investigations involving the CIA are normally overseen by the U.S. attorney for the Eastern District of Virginia, where the agency is located. But Mukasey said that office had removed itself from the tapes case to avoid “any possible appearance of a conflict with other matters handled by that office.”
The attorney general did not elaborate, but the U.S. attorney in Virginia has been in court over the handling of other CIA interrogation tapes in connection with the prosecution of convicted Sept. 11 conspirator Zacarias Moussaoui. The office is also involved in litigation in which detainees held by the U.S. military claim the government has brought charges based on coerced testimony of other detainees. The existence of taped interrogations could help buttress the defense in those cases.
“The U.S. attorney probably realized that A) he has a continuing relationship with the CIA that must be maintained, and B) if he took the CIA investigation and dismissed it without charges, he would be accused of trying to help the government’s position in the Moussaoui and detainee litigations,” said Andrew McCarthy, a former assistant U.S. attorney in New York.
McCarthy also said it was possible that some prosecutors in the Virginia office could be witnesses in the CIA tapes inquiry, “so the U.S. attorney faced the unsavory prospect of interviewing his own prosecutors in a criminal investigation.”
Formally, Durham will be the acting U.S. attorney for the Eastern District of Virginia for purposes of the tapes investigation, and will report to the deputy attorney general. He will be assisted by a team of lawyers from the department’s National Security Division and the U.S. attorney’s office in Washington.
Durham will not have the same broad powers as did Patrick J. Fitzgerald, the U.S. attorney in Chicago who was appointed a special counsel to investigate the 2003 leak of the identity of CIA operative Valerie Plame. But some observers said there were similarities between Durham and Fitzgerald, who won a conviction of former vice presidential aide I. Lewis “Scooter” Libby for obstructing justice.
Both are seen as tireless, relentless and apolitical. “Think of him as the second coming of Patrick Fitzgerald,” said Jeffrey Meyer, a professor at Quinnipiac University law school in Hamden, Conn., who worked alongside Durham as a federal prosecutor for many years. “So far as I could tell, he does not have a political bone in his body. He is nothing but thorough and dogged in the way he pursues cases.”
The CIA interrogation tapes were destroyed in late 2005 at the direction of Jose Rodriguez Jr., who was then the chief of the agency’s clandestine service. One motive was to protect the identity of the undercover CIA interrogators who were involved in the questioning.
At the time, Congress was seeking to put new limits on CIA interrogation techniques. The former co-chairmen of the bipartisan commission investigating the Sept. 11 attacks have asserted that the agency obstructed their investigation by not producing the tapes for their review.
Robert Bennett, an attorney for Rodriguez, said the investigation would show that his client had done nothing wrong. “I am sure that at the end of his investigation, the acting U.S. attorney for the Eastern District of Virginia will confirm that Mr. Rodriguez totally obeyed the law and acted in the full interests of the United States,” Bennett said.
The launching of the formal investigation is likely to slow fledgling congressional investigations into who destroyed the tapes and why. The Justice Department had asked members of Congress to put off their investigations pending a decision on whether to proceed with a criminal inquiry.
Legal experts said it was unlikely that witnesses including Rodriguez, who has been requested to appear before Congress at a hearing Jan. 16, would be willing to testify with the Justice investigation now in high gear.
Congressional leaders said they would not be deterred.
“Atty. Gen. Mukasey has made the right decision to begin a criminal investigation and place it in the hands of a career prosecutor,” said Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Senate Intelligence Committee. “We, however, have an obligation to continue our own congressional investigation, and that is exactly what we will do.”
(BEGIN TEXT OF INFOBOX)
John H. Durham
Position: Justice Department prosecutor will oversee investigation of CIA destruction of videotapes of interrogation of terrorism suspects.
Career: Deputy U.S. attorney, District of Connecticut.
Also a special attorney for the Massachusetts District, heading a task force that has prosecuted FBI and other law enforcement corruption in Boston.
Previously headed New Haven, Conn., field office of Boston Strike Force of Justice Department’s Organized Crime and Racketeering Section, and was assistant state’s attorney in New Haven.
Education: Colgate University, 1972; University of Connecticut School of Law, 1975
Source: Los Angeles Times