Justice Department Opens Formal Criminal Investigation — Finds Credible Allegations of Criminal Conduct in CIA Tapes Scandal

After completing an initial inquiry, tthe Justice Department has decided to open a full criminal investigation into the 2005 destruction of CIA tapes showing the interrogation of two Al Qaeda suspects. The finding of a basis for possible criminal charges is not itself surprising — there are at least six such offenses that were obvious from the outset. Attorney General Mukasey has appointed a U.S. Attorney General to handle the investigation — a disappointing decision not to appoint someone outside the Administration.

We now know that White House officials and Justice Department officials were aware of this plan to destroy evidence. According to sources, at least four top White House lawyers discussed the issue between 2003 and 2005. This would put the discussions at a date shortly before Gonzales took over as Attorney General. It would also show that he knew of the destruction plan as Attorney General despite the demand for such evidence by Congress and the courts. It would also mean that Gonzales was involved in another alleged criminal act. He was previously involved in pushing the unlawful electronic surveillance program, even appearing at the hospital bed of John Ashcroft to override objections within the Justice Department. He was also the author to the infamous torture memo and now appears to have be a party to a plan to destroy evidence of such torture. It also appears that he did not reveal this involvement to Congress in his confirmation hearings.

Reportedly also involved were David Addington, counsel to Vice President Dick Cheney and is now his chief of staff; John Bellinger III, then senior lawyer at the National Security Council; and Harriet Miers, who succeeded Gonzales as White House counsel. Addington is particularly interesting given his appearance in virtually every scandal these days. He is known as an enabler for both Bush and Cheney, arguing for extreme assertions of executive privilege and supporting such things as waterboarding.While other officials deny it, the Times reported that one officials noted that there had been “vigorous sentiment” among some top White House officials to destroy the tapes.

The disclosure puts the scandal literally next door to the President and, on the crime of torturing suspects, leads directly to his desk. Yet, the Justice Department insists that it can see no conflict in investigating its own chief executive and staff.Of course, Attorney General Mukasey swore implausibly that he did not know what waterboarding is and, even when told, refused to acknowledge the various courts decisions defining it as torture. Since his confirmation, he has refused demands that he answer that question for the obvious reason that it would confirm that President Bush ordered criminal acts. Sen. Feingold has led this worthy but thus far fruitless effort. Mukasey will now head an investigation involving the very subject of waterboarding.

The Justice Department is the very party accused of contempt and obstruction. It is the institution that told judges like Judge Brinkema in Virginia that no such tapes existed when they did. More importantly, in a contempt circumstance, it is the duty of the court to make an independent inquiry. If this were a private party, it would be odd for the court to say that it wants the accused party to first investigate itself. Instead, a court issues a show cause order that tells the party that it wants to know why it should not be held in contempt. The party is then given time to muster its facts and filings. This would have been the better course for the court. Instead, the court is practically leaving a judicial matter (contempt) in the hands executive branch, which is investigating itself.

In June 2005, Judge Kennedy handed down an order for the Administration to preserve “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”Five months later, the CIA destroyed the interrogation videos and the Administration is relying on a technicality — the two suspects tortured in the videos were not in Cuba. However, such preservation orders are supposed to be given liberal interpretation. Moreover, the government knew that the tapes have been sought by Congress and other courts. Finally, it knew that the tapes would likely be sought in this and other cases, including in the inevitable filings of Abu Zubaydah and Abd al-Rahim al-Nashiri.

In addition to obstruction, false statements, conspiracy, and perjury, there is spoliation. This crime occurs when there is the intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or defend a claim. This applies to “pending or reasonably foreseeable litigation.” It has been defined “the destruction or significant alteration of evidence, or the failure to preserve crucial items as evidence in pending or reasonably foreseeable litigation.”

With the advent of a formal investigation, Congress should demand an independent investigation, an entirely independent counsel is warranted. It is one thing for the Justice Department to claim the right to determine (the rather obvious) basis for investigating crimes. However, that preliminary investigation now shows that the highest ranking members of the Administration were involved as were Justice officials. The conflict of interest is open and obvious. There remain many in Washington who are hoping that the voters will forget the scandal and particularly the torture program. The advantage of having the Justice Department control the investigation is that it would move as a glacial pace and probably be narrowed to avoid the torture crime and other related offenses — focusing entirely on obstruction which is subject to technical defenses.

John Durham, the U.S. Attorney in Connecticut, is not viewed as political but he remains within the Justice Department and under Mukasey’s supervision. Many of us are concerned due to the less than impressive performance of Patrick Fitzgerald in the Scooter Libby matter. Fitzgerald’s investigation later showed significant holes and seemed to struggle to give possible targets like Karl Rove endless opportunities to get his sworn testimony right in repeated appearances before the grand jury.

It appears that they intend to prosecute any crimes out of the Eastern District of Virginia according to Mukasey’s statement below.

“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, and I have
taken steps to begin that investigation as outlined below.

“This preliminary inquiry was conducted jointly by the Department’s
National Security Division and the CIA’s Office of Inspector General. It
was opened on December 8, 2007, following disclosure by CIA Director
Michael Hayden on December 6, 2007, that the tapes had been destroyed. A
preliminary inquiry is a procedure the Department of Justice uses regularly
to gather the initial facts needed to determine whether there is sufficient
predication to warrant a criminal investigation of a potential felony or
misdemeanor violation. The opening of an investigation does not mean that
criminal charges will necessarily follow.

“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.

“As a result, I have asked John Durham, the First Assistant United
States Attorney in the United States Attorney’s Office for the District of
Connecticut, to serve as Acting United States Attorney for the Eastern
District of Virginia for purposes of this matter. Mr. Durham is a widely
respected and experienced career prosecutor who has supervised a wide range
of complex investigations in the past, and I am grateful to him for his
willingness to serve in this capacity. As the Acting United States Attorney
for purposes of this investigation, Mr. Durham will report to the Deputy
Attorney General, as do all United States Attorneys in the ordinary course.
I have also directed the FBI to conduct the investigation under Mr.
Durham’s supervision.

“Earlier today, the Department provided notice of these developments to
Director Hayden and the leadership of the Judiciary and Intelligence
Committees of the Congress.”

16 thoughts on “Justice Department Opens Formal Criminal Investigation — Finds Credible Allegations of Criminal Conduct in CIA Tapes Scandal”

  1. That is a huge issue Patty, and one that is in a constant state of evolution… I would defer to Professor Turley on this, but can give you a great cite if you want to read a current treatment of what is a legally and politically highly-charged issue nowadays: an article by Andre Nollkaemper in AJIL, “Internationally Wrongful Acts in Domestic Courts”


    Thanks for your entry above about the DW “rock”! I was unavailable for a couple of days having a pleasant time in the hospital hooked up to all kinds of tubes and things and then convalescing back at the home desmesnes. Great way to escape housework and social obligations! Alls well now. 🙂

  2. Great citation DW – Thanks.

    UNCAT ie UNITED NATIONS Convention Against Torture…

    How is International Law applied to these cases, domestically, and in addition otherwise, in the US – especially toward an ‘enemy combatant’ with no rights as a soldier under Geneva much less as a “person” unspecified, these days?

  3. UNCAT Article 3:

    “Article 3
    1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

    The United States is facially in breach of this Article.

    In the long haul, I speculate, it might be easier for a Special Prosecutor to gather evidence from the trail of the renditions than it will be for the “in-house” tortures. There is a chain of custody that will be very difficult to hide from scrutiny.

  4. Excellent question and one I have been asking and offering as a possible solution since Fredo.

    No license, no qualification, no job. End of problem.

  5. As an attorney, I am less concerned about the investigation protocols than about the attorneys who sold out their profession and their ethics to provide legal cover for this abomination. Why are no leaders of our profession talking about that? Is there anything the state bars can do? Would they even have the guts to investigate a complaint?

  6. Where is DW – my ‘rock’ with whom I weigh in regularly? We’re a team!

    Mukasey did himself, the Senate, the Congress and most of all, the People of the United States a great disservice by not answering the question as to the well-established and longstanding act of torture specified at his confirmation hearings, therein, known as water boarding.

    As a result, no one, outside of the Administration, trusts him or anything he says.

    Having put Dubya’s shallow approval ahead of what he must know is truly worthy and counts more than gold at this time in out history, as does every true American, must have come at a high price indeed
    -at least I would hope so!

    HE can only pray it is worth it.

  7. Hugh,
    Unfortunately, I was referring not just to the unfolding “circus” of an investigation but rather to this grand experiment called “democracy”.
    Thar being said, emails have been dispatched to both senators and representative expressing my views on the situation. I want to be on record as going down, swinging.

  8. The most important thing is to demand action from your Senators and representative. Ask what they have done publicly on the issue of calling for a special counsel. Moreover, Congress needs to define the investigation in term of torture — something both parties are resisting.

  9. Thank you, thank you, thank you for your illuminating comments on Olbermann’s show last night, accessed today through Crooks&Liars. What can we do?

  10. Got it. Common ground.

    So what? Mukasey’s Report Card reads:
    “Plays Well with Others”

    Personally, I think either just makes the argument for a
    Special Prosecutor LOUDER…

  11. Thanks PC. It was also interesting to see the selection of the Eastern District which has the closely connections to the intelligence community. Why not D.C.? The communications with the commission, many meetings, the White House, other agencies are all located in D.C. The CIA is in Virginia but the misrepresentations were directed at D.C. and a D.C. court.

  12. Thank you, Hugh. The critical issue will whether, as expected, Justice narrowly defines the investigation to exclude or marginalize the torture crime. Congress has promised its own investigation, but many of us are highly skeptical. The Senate held a meaningless hearing on the issue after the disclosure that was dismissed by many as cosmetic.

  13. After listening to what Mr. Turley had to say on Olbermann last night, I don’t think he is optimistic for any real investigation. Is there any way to pressure the Democratic leadership or the Justice Department to appoint an independent investigator?

    Well said last night, Mr. Turley.

  14. So, we’re sending the fox to check out what’s happening in the hen house. Is there a spine left amongst ANY of the Democratic leadership or have they all become invertebrate sea creatures of one type or another? I dearly wish I could share in the good professor’s optimism regarding our current sad state of affairs but can’t help but feel that I am witnessing the beginning of the end.

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