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. Sen. Feingold has led this worthy but thus far fruitless effort. Mukasey will now head an investigation involving the very subject of waterboarding.

The Justice Department is the very party accused of contempt and obstruction. It is the institution that told judges like Judge Brinkema in Virginia that no such tapes existed when they did. More importantly, in a contempt circumstance, it is the duty of the court to make an independent inquiry. If this were a private party, it would be odd for the court to say that it wants the accused party to first investigate itself. Instead, a court issues a show cause order that tells the party that it wants to know why it should not be held in contempt. The party is then given time to muster its facts and filings. This would have been the better course for the court. Instead, the court is practically leaving a judicial matter (contempt) in the hands executive branch, which is investigating itself.

In June 2005, Judge Kennedy handed down an order for the Administration to preserve “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”Five months later, the CIA destroyed the interrogation videos and the Administration is relying on a technicality — the two suspects tortured in the videos were not in Cuba. However, such preservation orders are supposed to be given liberal interpretation. Moreover, the government knew that the tapes have been sought by Congress and other courts. Finally, it knew that the tapes would likely be sought in this and other cases, including in the inevitable filings of Abu Zubaydah and Abd al-Rahim al-Nashiri.

In addition to obstruction, false statements, conspiracy, and perjury, there is spoliation. This crime occurs when there is the intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or defend a claim. This applies to “pending or reasonably foreseeable litigation.” It has been defined “the destruction or significant alteration of evidence, or the failure to preserve crucial items as evidence in pending or reasonably foreseeable litigation.”

With the advent of a formal investigation, Congress should demand an independent investigation, an entirely independent counsel is warranted. It is one thing for the Justice Department to claim the right to determine (the rather obvious) basis for investigating crimes. However, that preliminary investigation now shows that the highest ranking members of the Administration were involved as were Justice officials. The conflict of interest is open and obvious. There remain many in Washington who are hoping that the voters will forget the scandal and particularly the torture program. The advantage of having the Justice Department control the investigation is that it would move as a glacial pace and probably be narrowed to avoid the torture crime and other related offenses — focusing entirely on obstruction which is subject to technical defenses.

John Durham, the U.S. Attorney in Connecticut, is not viewed as political but he remains within the Justice Department and under Mukasey’s supervision. Many of us are concerned due to the less than impressive performance of Patrick Fitzgerald in the Scooter Libby matter. Fitzgerald’s investigation later showed significant holes and seemed to struggle to give possible targets like Karl Rove endless opportunities to get his sworn testimony right in repeated appearances before the grand jury.

It appears that they intend to prosecute any crimes out of the Eastern District of Virginia according to Mukasey’s statement below.

“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, and I have

taken steps to begin that investigation as outlined below. “This preliminary inquiry was conducted jointly by the Department’s

National Security Division and the CIA’s Office of Inspector General. It

was opened on December 8, 2007, following disclosure by CIA Director

Michael Hayden on December 6, 2007, that the tapes had been destroyed. A

preliminary inquiry is a procedure the Department of Justice uses regularly

to gather the initial facts needed to determine whether there is sufficient

predication to warrant a criminal investigation of a potential felony or

misdemeanor violation. The opening of an investigation does not mean that

criminal charges will necessarily follow. “An investigation of this kind, relating to the CIA, would ordinarily

be conducted under the supervision of the United States Attorney for the

Eastern District of Virginia, the District in which the CIA headquarters

are located. However, in an abundance of caution and on the request of the

United States Attorney for the Eastern District of Virginia, in accordance

with Department of Justice policy, his office has been recused from the

investigation of this matter, in order to avoid any possible appearance of

a conflict with other matters handled by that office. “As a result, I have asked John Durham, the First Assistant United

States Attorney in the United States Attorney’s Office for the District of

Connecticut, to serve as Acting United States Attorney for the Eastern

District of Virginia for purposes of this matter. Mr. Durham is a widely

respected and experienced career prosecutor who has supervised a wide range

of complex investigations in the past, and I am grateful to him for his

willingness to serve in this capacity. As the Acting United States Attorney

for purposes of this investigation, Mr. Durham will report to the Deputy

Attorney General, as do all United States Attorneys in the ordinary course.

I have also directed the FBI to conduct the investigation under Mr.

Durham’s supervision. “Earlier today, the Department provided notice of these developments to

Director Hayden and the leadership of the Judiciary and Intelligence

Committees of the Congress.”

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