By Carrie Johnson
Washington Post Staff Writer
Tuesday, August 25, 2009
In appointing a prosecutor to investigate alleged CIA interrogation abuses, including episodes that resulted in prisoner deaths, Attorney General Eric H. Holder Jr. on Monday shook off warnings from President Obama to avoid becoming mired in past controversies.
Holder said that he realizes the move is controversial but that it was the only responsible course to take.
The decision does not reflect a sharp division between the Justice Department and the White House, government officials said, given the limits of the preliminary review and the respect that Obama says he maintains for the role of an independent attorney general. But it could mark the beginning of a painstaking inquiry that tests the boundaries of the Justice Department's discretion and its ability to evaluate incomplete evidence collected on the world's battlegrounds.
Holder has named longtime prosecutor John H. Durham, who has parachuted into crisis situations for both political parties over three decades, to open an early review of nearly a dozen cases of alleged detainee mistreatment at the hands of CIA interrogators and contractors.
The announcement raised fresh tensions in an intelligence community fearful that it will bear the brunt of the punishment for Bush-era national security policy, and it immediately provoked criticism from congressional Republicans.
Legal analysts said the review, while preliminary, could expand beyond its relatively narrow mandate and ensnare a wider cast of characters. They cited U.S. Attorney Patrick J. Fitzgerald's investigation of the leak of a CIA operative's identity, which culminated with the criminal conviction of then-Vice President Richard B. Cheney's chief of staff.
In a statement Monday afternoon, Holder cautioned that the inquiry is far from a full-blown criminal investigation. Rather, he said, it is unknown whether indictments or prosecutions of CIA contractors and employees will follow. Lawyers involved in similar reviews said that any possible cases could take years to build because of challenges with witnesses and evidence.
"I fully realize that my decision to commence this preliminary review will be controversial," Holder added. "As attorney general, my duty is to examine the facts and to follow the law. In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take."
Obama and White House officials have said that they want to look ahead on national security; White House press secretary Robert Gibbs said last week that the administration is eager to keep "going forward" and that "a hefty litigation looking backward is not what we believe is in the country's best interest."
But the White House voiced support for Holder in a news conference held Monday on Martha's Vineyard, Mass., where deputy press secretary Bill Burton told reporters that "ultimately, the decisions on who is investigated and who is prosecuted are up to the attorney general. . . . The president thinks that Eric Holder, who he appointed as a very independent attorney general, should make those decisions."
But nearly as important in the high-stakes analysis will be Durham, 59, an assistant U.S. attorney in Connecticut who has investigated Boston mob kingpins, corrupt FBI agents and his state's GOP governor. Durham rarely speaks publicly, but in private he cracks jokes, follows the Boston Red Sox and regularly attends Mass with his wife of several decades. One of his four sons followed in his father's footsteps and now serves as a federal prosecutor in Brooklyn.
Though a registered Republican, Durham generally is regarded as apolitical, and attorneys general from both parties -- including Janet Reno, Michael B. Mukasey and Holder -- have tapped him for their most difficult assignments.
Hugh Keefe, a longtime Connecticut defense lawyer who has often squared off against Durham in court, called the prosecutor "the go-to guy for Justice whenever they get a hot case."
Durham risked unpopularity a decade ago when he untangled questionable relationships among FBI agents, Massachusetts police and Boston mob kingpins. Ultimately, he turned over evidence that prompted a federal judge to dismiss several murder cases and he won a conviction against a longtime federal agent who had grown too close to organized crime figures. The investigation later attracted a mass audience in the Academy Award-winning film "The Departed."
Holder selected Durham for the inquiry announced Monday in part because of his role as prosecutor in an ongoing investigation of the destruction of CIA videotapes in late 2005, expanding his mandate to cover additional agency conduct. Durham has appeared in Alexandria's federal courthouse about once a month to present evidence to a grand jury that is probing the incident. The tapes allegedly depicted brutal scenes of waterboarding involving high-value al-Qaeda suspects. That investigation is in its 19th month, though lawyers following the case have cast doubt on whether criminal charges will be filed.
A similar concern could emerge in the detainee mistreatment inquiry. Many of the cases have been subject to review by two sets of prosecutors: counterterrorism lawyers at Justice Department headquarters in Washington as well as a special team from the U.S. attorney's office in the Eastern District of Virginia. Lawyers involved in the Bush-era reviews sought and won an indictment in one of nearly 20 cases, after concluding that they were hampered by such problems as unreliable witnesses, scanty forensic work and even missing bodies of prisoners who had died in detention.
In all, more than 100 detainees died in U.S. care, most of them under military custody, according to previous government reports and congressional inquiries. It is not known how many of the cases in the new review by Durham involve detainee deaths.
Mark Califano, a former prosecutor in Connecticut, described Durham's approach as "clinical." He said Durham "very rarely" has walked away from a case without bringing criminal charges.
"He likes to make cases when there is evidence there," said Califano, the son of former Heath, Education and Welfare Secretary Joseph A. Califano Jr. "You've got to balance whether that kind of information exists. . . . You can't move forward if you don't have the evidence."
Keefe, who reached out to Durham several years ago to negotiate a possible settlement in a case involving fugitive financier Martin Frankel, praised the prosecutor for his sense of "perspective."
"The thing about the U.S. attorney's office in Connecticut is that they take the standard of proof beyond a reasonable doubt seriously in deciding whether to indict," Keefe said. "If Durham can't make a case beyond a reasonable doubt, he won't indict."