By Dan Eggen and Joby Warrick
Washington Post Staff Writers
Thursday, January 3, 2008
The Justice Department said yesterday that it has opened a formal criminal investigation into the CIA's destruction of interrogation tapes, appointing a career prosecutor to examine whether intelligence officials broke the law by destroying videos of exceptionally harsh questioning of terrorism suspects.
The criminal probe, announced by Attorney General Michael B. Mukasey, significantly escalates a preliminary inquiry into whether the CIA's actions constituted an obstruction of justice. Officials have said that some White House and Justice Department lawyers advised the CIA not to destroy the tapes, which contained information of interest to the attorneys of detainees and to a congressionally chartered panel examining the Sept. 11, 2001, terrorist attacks.
The decision opens the door to fresh scrutiny of the CIA's activities by the FBI, which clashed repeatedly with CIA field officers over the use of the harsh interrogation techniques and ultimately withdrew its own agents from interrogations to avoid entanglement in activities that senior FBI officials considered improper.
To oversee the probe, Mukasey appointed John Durham, a career federal prosecutor from Connecticut, bypassing the department's Washington headquarters and the local U.S. attorney's office in Alexandria, which recused itself from the case.
"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," Mukasey said in a statement. He cautioned that "the opening of an investigation does not mean that criminal charges will necessarily follow."
The department said on Dec. 8 that it began a preliminary inquiry after the CIA's disclosure that its officers had destroyed videotapes of the interrogations of two senior al-Qaeda suspects in 2002. The CIA said Jose Rodriguez Jr., then the agency's director of clandestine operations, ordered the tapes' destruction, acting out of what agency officials initially said was concern that CIA interrogators could be at risk of terrorist retaliation.
Some former CIA officials later said that the destruction, which came shortly after The Washington Post disclosed the existence of secret CIA interrogation sites in Europe and elsewhere, was also prompted by concern that the interrogators could be at risk of prosecution.
Mukasey's decision was supported by some members of Congress, which has launched its own investigation of the matter. But House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) criticized the probe over its "limited scope" and advocated the appointment of "a more independent special counsel."
"Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness," Conyers said in a statement.
Durham, who will lead the probe, is second-in-command at the U.S. attorney's office in Connecticut but will serve as an acting U.S. attorney and report to Craig Morford, the acting deputy attorney general and a former career prosecutor. Mukasey described Durham as "a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past."
Durham is well known as a publicity-averse specialist in organized crime cases. Former attorney general Janet Reno named him as a special prosecutor in the investigation of allegations that FBI agents and police officers in Boston had ties to Mafia informants, resulting in the 2002 racketeering conviction of one of the FBI agents. He is a registered Republican, according to Connecticut voter records.
Mukasey did not indicate in his statement whether he or any of his aides will recuse themselves from the probe. Democratic lawmakers have urged him to do so because some Justice Department lawyers had advised the CIA not to destroy the tapes.
Leaders of the House and Senate intelligence committees vowed to continue their separate inquiries, including a hearing on Jan. 16 at which they plan to grill Rodriguez. Various committee members have accused the CIA of not properly informing them about how the tapes came to be made and, later, destroyed, despite CIA statements to the contrary.
"Those tapes may have been evidence of a crime, and their destruction may have been a crime in itself," said Sen. Edward M. Kennedy (D-Mass.) in a statement yesterday. Jamal D. Ware , a senior member of the Republican staff of the House intelligence committee, said he supports the criminal probe, "given the failure to keep Congress fully and currently informed of the existence and destruction of these tapes and the apparent attempt to mislead the public about what the committee knew of the matter."
The CIA issued a statement promising to "cooperate fully with this investigation," which senior officials had expected. "Everyone understood this would not end with the preliminary inquiry," said one U.S. official familiar with the agency's decision-making.
A former senior intelligence official saw some benefit in the decision to appoint someone from outside Washington to head the probe. "It's not a bad idea to try to depoliticize the investigation -- to insulate the department as much as possible from the kind of political turmoil we often see in this town," the former official said, referring to the Justice Department.
Several officials said that the FBI has not been deeply involved in the tapes probe and that the decision to pursue a full-scale investigation was made by senior Justice Department officials, based on a finding by prosecutors in the National Security Division that evidence suggests criminal violations may have occurred.
The precise reason for the finding and the names of those targeted by the probe could not be learned yesterday.
Although the tapes in question were not provided to any court or to the members of the government-appointed 9/11 Commission, they were evidently seen by CIA Inspector General John L. Helgerson, who disclosed in a statement yesterday that he plans to recuse himself from the criminal inquiry to avoid a conflict of interest.
Helgerson said he and his staff "reviewed the tapes at issue some years ago," when agency officials were debating whether to destroy them. "During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said.
A Justice Department official, who spoke about internal deliberations on the condition of anonymity, said the U.S. attorney's office in Alexandria had recused itself to "err on the side of caution." Several cases handled by that office, including the prosecution and conviction of al-Qaeda operative Zacarias Moussaoui, involved CIA interrogations, possibly including those that had been videotaped.
Staff writer John Solomon and staff researcher Julie Tate contributed to this report.