With little attention in the media, the Justice Department has filed papers in federal court arguing that the CIA did not have an obligation to preserve the infamous torture tapes and therefore was lawfully entitled to destroy them. The filing patently demonstrates the conflict of interest in Attorney General Michael Mukasey insisting that the Justice Department investigate the possible criminal conduct in the matter. Now, the Justice Department is not only investigating itself, but it is investigating a crime that it has rejected as baseless in court filings. The ACLU case has also shown that other officials were aware of the tapes, including the CIA Inspector General’s Office — which means that the agency “watchdogs” knew of a torture program – a clear criminal enterprise – and did nothing.

The Justice Department filed the papers in a case in 2004 brought by the ACLU based on the denial of information sought under the Freedom of Information Act.

The ACLU said the destruction of the tapes violated U.S. District Judge Alvin K. Hellerstein’s 2004 order to the CIA to produce or identify all records pertaining to the treatment of detainees in custody. The FOIA requests were filed by the ACLU and other organizations in October 2003 and May 2004. In a statement from the CIA’s Office of Inspector General, Constance E. Rea, Deputy Assistant Inspector General For Investigations, described a special review of the agency’s terrorist detention and interrogation program beginning in January 2003 (three years before the program was publicly acknowledged by the president), which was intended to evaluate the program and “was not initiated in response to an allegation of wrongdoing.” “During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the [National Clandestine Service] to review the videotapes at the overseas location where they were stored.” The Inspector General’s office reviewed the videotapes at an overseas covert NCS facility in May 2003, but did not afterwards take custody of the tapes or make copies, and therefore, Rea said, they were not among the materials required to be passed on under the ACLU’s Freedom of Information Act (FOIA) request.

It appears that Congress will do little to try to force the appoint of a truly independent counsel in the case.In its papers, the government argues that “The CIA therefore had no duty to preserve the videotapes due to the initiation of this lawsuit.” Moreover, and this is the really remarkable part, the Justice Department argues that “Special reviews are akin to audits or inspections. Like audits or inspections, and unlike investigations, special reviews typically do not arise in response to allegations of CIA wrongdoing.” Thus, the Justice Department is now on record as saying that the tapes were merely internal documents like audits and not subject to judicial or congressional disclosure in the same way as conventional material.

The knowledge of the Inspector General’s office expands the scope of lawyers and other officials with knowledge of the criminal conduct but who did nothing — despite a raging public debate over the crime of torture and the existence of such evidence. 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. Mukasey will now head an investigation involving the very subject of waterboarding.

The Justice Department is the very party accused of contempt and obstruction.

These developments serve to undermine any confidence in the current investigation, particularly given the effort by both Democrats and Republicans to downplay the content of the tapes in favor of a narrow investigation into their destruction. This was again reflected in the recent filings. The sole issue for the Justice Department was the failure to reveal the tapes — and their eventual destruction. It seems entirely unconcerned that the “internal audit” showed the crime of torture. The reason seems obvious. Leaders in both parties in Washington continue to assure the White House and each other that they will not focus on the torture program.

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