Justice Department takes on CIA honchos


Richard Moore

C.I.A. officials have for years feared becoming entangled in
a criminal investigation involving alleged improprieties in
secret counterterrorism programs. Now, the investigation and
a probable grand jury inquiry will scrutinize the actions of
some of the highest-ranking current and former officials at
the agency.

Original source URL:

January 3, 2008

Justice Dept. Sets Criminal Inquiry Into C.I.A. Tapes

WASHINGTON ‹ Attorney General Michael B. Mukasey said Wednesday that the Justice
Department had elevated its inquiry into the destruction of Central Intelligence
Agency interrogation videotapes to a formal criminal investigation headed by a 
career federal prosecutor.

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, 
which recorded the interrogations in 2002 of two operatives with Al Qaeda and 
were destroyed in 2005.

C.I.A. officials have for years feared becoming entangled in a criminal 
investigation involving alleged improprieties in secret counterterrorism 
programs. Now, the investigation and a probable grand jury inquiry will 
scrutinize the actions of some of the highest-ranking current and former 
officials at the agency.

The tapes were never provided to the courts or to the Sept. 11 commission, which
had requested all C.I.A. documents related to Qaeda prisoners. The question of 
whether to destroy the tapes was for nearly three years the subject of 
deliberations among lawyers at the highest levels of the Bush administration.

Justice Department officials declined to specify what crimes might be under 
investigation, but government lawyers have said the inquiry will probably focus 
on whether the destruction of the tapes involved criminal obstruction of justice
and related false-statement offenses.

Mr. Mukasey assigned John H. Durham, a veteran federal prosecutor from 
Connecticut, to lead the criminal inquiry in tandem with the Federal Bureau of 
Investigation. The appointment of a prosecutor from outside Washington was an 
unusual move, and it suggested that Mr. Mukasey wanted to give the investigation
the appearance of an extra measure of independence, after complaints from 
lawmakers in both parties that Mr. Mukasey¹s predecessor, Alberto R. Gonzales, 
had allowed politics to influence the Justice Department¹s judgment.

Mr. Durham was not appointed as a special counsel in this case, a step sought by
some Congressional Democrats. He will have less expansive authority than a 
special counsel and will report to the deputy attorney general rather than 
assume the powers of the attorney general, which he would have had as a special 

Mr. Durham has spent years bringing cases against organized crime figures in 
Hartford and Boston. In legal circles he has the reputation of a tough, 
tight-lipped litigator who compiled a stellar track record against the mob.

A C.I.A. spokesman said that the agency would cooperate fully with the Justice 
Department investigation. Current and former officials have said that the C.I.A.
official who ordered the destruction of the tapes in November 2005 was Jose A. 
Rodriguez Jr., who at the time was the head of the agency¹s clandestine branch.

The decision to start a full-scale criminal investigation into the matter came 
four weeks after the disclosure on Dec. 6 that the tapes had been created and 
then destroyed. The Justice Department and the C.I.A. opened a preliminary 
inquiry on Dec. 8, and Mr. Mukasey said Wednesday that he had concluded from 
that review ³that there is a basis for initiating a criminal investigation of 
this matter.²

The chairmen of the House Intelligence Committee, Representative Silvestre 
Reyes, Democrat of Texas, and the Senate Intelligence Committee, Senator John D.
Rockefeller IV, Democrat of West Virginia, welcomed Mr. Mukasey¹s announcement. 
But neither gave any indication he would defer to the criminal inquiry, and in 
separate statements they pledged to proceed with their committees¹ 
investigations into the destruction of the tapes.

John L. Helgerson, the C.I.A. inspector general who took part in the preliminary
inquiry, said Wednesday that he would step aside from the criminal investigation
to avoid any appearance of a conflict of interest.

Mr. Helgerson¹s office had reviewed the videotapes, documenting the 
interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri, as part of an 
investigation into the C.I.A¹s secret detention and interrogation program. Mr. 
Helgerson completed his investigation into the program in early 2004.

Among White House lawyers who took part in discussions between 2003 and 2005 
about whether to destroy the tapes were Mr. Gonzales, when he was White House 
counsel; Harriet E. Miers, Mr. Gonzales¹s successor as counsel; David S. 
Addington, who was then counsel to Vice President Dick Cheney; and John B. 
Bellinger III, then the legal adviser to the National Security Council. It is 
unclear whether anyone outside the C.I.A. endorsed destroying the tapes.

The new Justice Department investigation is likely to last for months, possibly 
beyond the end of the Bush administration.

Mr. Durham is currently the top-ranking deputy in the United States attorney¹s 
office in Connecticut, supervising all major felony cases brought in the state.

In the late 1990s he was assigned as a special attorney in Boston leading an 
inquiry into allegations that F.B.I. agents and police officers had been 
compromised by mobsters.

In taking over the inquiry, Mr. Durham is expected to be able to move ahead 
without a long delay because his team will include Justice Department 
prosecutors who have already been working on the case. But at least in the 
beginning, it is likely to proceed more slowly than parallel investigations on 
Capitol Hill that are already well under way. Investigators from the House 
Intelligence Committee last month reviewed C.I.A. documents related to the 
destruction of the tapes, and the committee has called government witnesses to 
testify at a hearing scheduled for Jan. 16.

Mr. Mukasey pointedly did not designate Mr. Durham as a special counsel, in 
effect refusing to bow to pressure from Congressional Democrats to appoint an 
independent prosecutor with the same broad legal powers that were given to 
Patrick J. Fitzgerald, the special counsel who was appointed in 2003 to lead the
investigation into the disclosure of a C.I.A. officer¹s identity. That inquiry 
resulted in the perjury and obstruction prosecution of I. Lewis Libby Jr., 
formerly Mr. Cheney¹s chief of staff. After Mr. Libby¹s conviction, President 
Bush commuted his sentence.

Mr. Fitzgerald was appointed after the attorney general at the time, John 
Ashcroft, determined that his own relationship with officials under possible 
scrutiny in the leak case forced him to recuse himself from the investigation. 
As special counsel, Mr. Fitzgerald had the authority of the attorney general for
the matters under investigation.

Mr. Durham will report to the deputy attorney general, an office being held 
temporarily by Craig S. Morford. Mr. Durham will have the powers of the United 
States attorney for the Eastern District of Virginia, a jurisdiction that 
includes C.I.A. headquarters. If a grand jury is convened as expected, it will 
meet in Alexandria, Va., where the prosecutor¹s office is located.

Mr. Mukasey said ³in an abundance of caution² the office of United States 
attorney for the district, Chuck Rosenberg, had been recused from the case and 
would not take part in the inquiry. Mr. Rosenberg¹s office has investigated 
cases of detainee abuse by C.I.A. employees and contractors and has worked 
closely with the C.I.A. on counterterrorism and espionage cases.

Mr. Mukasey said the decision was made ³to avoid any possible appearance of a 
conflict with other matters handled by that office.² Appointments like Mr. 
Durham¹s are sometimes made in cases in which prosecutors like Mr. Rosenberg 
have recused themselves.

In an Op-Ed article in The New York Times on Wednesday, Thomas H. Kean and Lee 
H. Hamilton, the chairman and vice chairman of the Sept. 11 commission, said 
they believed that C.I.A. officials had deliberately withheld the tapes from the
commission. They suggested that since the commission received its authority from
both Congress and President Bush, any deliberate withholding of evidence might 
have violated federal law.

³Those who knew about those videotapes ‹ and did not tell us about them ‹ 
obstructed our investigation,² they wrote.

Copyright 2008 The New York Times Company

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