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Correction to This Article
This Jan. 3 editorial, "Mr. Mukasey's Move," incorrectly reported that CIA Director Michael V. Hayden announced that he would recuse himself from investigating the destruction of CIA tapes. Only CIA Inspector General John L. Helgerson removed himself from the case.

Mr. Mukasey's Move

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Thursday, January 3, 2008

THE JUSTICE Department's decision to ratchet up its investigation of the destruction of CIA tapes is a welcome sign that the department is moving seriously and expeditiously on the matter. Attorney General Michael B. Mukasey announced yesterday that he had elevated the probe from a preliminary inquiry to a criminal investigation, suggesting that prosecutors in the department's National Security Division, which jointly looked into the matter with the CIA inspector general, had found enough evidence of possible wrongdoing to warrant heightened scrutiny. The tapes, recorded during 2002 and destroyed in 2005, may have shown detainees being subjected to torture techniques such as waterboarding, or simulated drowning.

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The CIA matter normally would be handled by the U.S. attorney for the Eastern District of Virginia -- the federal prosecutor's office in the jurisdiction where the CIA is based. Out of an "abundance of caution" to avoid even the appearance of a too-cozy relationship between prosecutor and subject, Mr. Mukasey wisely turned to John H. Durham, a veteran prosecutor based in Connecticut with an impressive track record on tough cases. Mr. Durham has worked since 1982 as a federal prosecutor, earning plaudits from Republican and Democratic administrations alike. In 1999, he made headlines as the head of a massive corruption investigation into organized crime ties to the Boston police force that led, among other things, to the conviction of a former star FBI agent on charges that he helped protect Mafia figures.

Also yesterday, CIA Director Michael V. Hayden and Inspector General John L. Helgerson announced that they would recuse themselves from involvement in investigating the tapes' destruction. This was an appropriate step, particularly on the part of Mr. Helgerson, who has said he and his staff reviewed the tapes.

Numerous pitfalls remain. Congress is proceeding with its own investigations. While parallel congressional and executive branch investigations are not uncommon, they almost always present hazards. Congressional grants of immunity in exchange for testimony could undermine a criminal prosecution. Public testimony opens the door for witnesses to align their stories. In this case, the House intelligence committee has subpoenaed Jose A. Rodriguez Jr., the CIA official who reportedly authorized the tapes' destruction, for a Jan. 16 hearing. Congress without question has a legitimate oversight interest, but it should tread carefully so as not to damage a possible criminal prosecution. If a crime has been committed, those responsible should be held accountable.

In all likelihood, the Justice Department investigation will focus narrowly on whether the destruction of the tapes constituted a crime; it will probably not delve into whether the tapes depicted a crime, namely torture. Congress should continue to demand answers about the administration's past and current detention and interrogation policies. Lawmakers should also press ahead with legislation that would, once and for all, outlaw waterboarding and require all U.S. personnel to use only those interrogation techniques authorized by the Army Field Manual.


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