Torture Tape-Gate ~ Mukasey Capitulates, Or Does He?

Forgive your Demon's healthy skepticism, but the news today (following as it does almost immediately an op-ed today in the New York Times by members of the 911 Commission wondering aloud why the "Torture Tapes" were not produced eons ago despite requests) Mr. Mukasey's sudden reversal of his previous position that the DOJ & the CIA would conduct their own investigations of themselves amuses me.

Today, indeed, we learn that Mukasey has appointed someone to function ~ sorta ~ as a US Attorney or something of a "special prosecutor" ~ but not really.

Er, I'm not exactly clear what this guy's position will be, exactly, nor if he really will be as independent as billed.

All that's very clear at this point is that the two 911 Commissioners have concluded, in no uncertain terms, that the Commission repeatedly requested information that would have encompassed the torture tapes, & that the CIA's & the Administration's failure to ever mention or provide them is, in the Commissioners' own words, "obstruction" of justice, a legal term of art that carries consequences, or so we all thought until Bushco came to town.

They're not the only ones who had recognized right to the information on the tapes: there was also a court evidentiary ruling in a pending court case (see "Bad News in Bushworld," below.)

The op-ed details repeated requests by the Commission to get at relevant information & the obfuscatory tactics with which those requests were met, culminating in "[a] meeting on Jan. 21, 2004, with Mr. Tenet, the White House counsel, the secretary of defense and a representative from the Justice Department also resulted in the denial of commission access to the detainees. Once again, videotapes were not mentioned.

"As a result of this January meeting, the C.I.A. agreed to pose some of our questions to detainees and report back to us. The commission concluded this was all the administration could give us. But the commission never felt that its earlier questions had been satisfactorily answered..."

"Stonewalled by the CIA: " http://www.nytimes.com/2008/01/02/opinion/02kean.html

To recap what we were all too busy during the holidays to pay very close attention to, New York Times investigative reporters Scott Shane & Mark Mazzetti on December 30 revealed what the White House lawyers & the Justice Department had to do with the tapes controversy & hints why they may have been destroyed:

..."Scrutiny of the C.I.A.’s secret detention program kept building. Later in 2003, the agency’s inspector general, John L. Helgerson, began investigating the program, and some insiders believed the inquiry might end with criminal charges for abusive interrogations.

[...]

"Mr. Helgerson — now conducting the videotapes review with the Justice Department — had already rankled covert officers with [another investigation which] set off widespread concern within the clandestine branch that a day of reckoning could be coming for officers involved in the agency’s secret prison program....Mr. Helgerson [was pitted] against Mr. Muller, who vigorously defended members of the clandestine branch and even lobbied the Justice Department to head off criminal charges in the matter, according to former intelligence officials.

[...]

"Mr. Helgerson completed his investigation of interrogations in April 2004, according to one person briefed on the still-secret report, which concluded that some of the C.I.A.’s techniques appeared to constitute cruel, inhuman and degrading treatment under the international Convention Against Torture. Current and former officials said the report did not explicitly state that the methods were torture.

"A month later, as the administration reeled from the Abu Ghraib disclosures, Mr. Muller, the agency general counsel, met to discuss the report with three senior lawyers at the White House: Alberto R. Gonzales, the White House counsel; David S. Addington, legal adviser for Vice President Dick Cheney; and John B. Bellinger III, the top lawyer at the National Security Council.

"The interrogation tapes were discussed at the meeting, and one Bush administration official said that, according to notes of the discussion, Mr. Bellinger advised the C.I.A. against destroying the tapes. The positions Mr. Gonzales and Mr. Addington took are unknown. One person familiar with the discussion said that in light of concerns raised in the inspector general’s report that agency officers could be legally liable for harsh interrogations, there was a view at the time among some administration lawyers that the tapes should be preserved.

There appears to have been a "don't tell me what you're doing because I want to be able to testify that I didn't know" ethic within the CIA's internal structure, echoed in Bush's assiduous refusal to comment or take reponsibility.

[...]

"The investigations over the tapes frustrate some C.I.A. veterans, who say they believe that the agency is being unfairly blamed for policies of coercive interrogation approved at the top of the Bush administration and by some Congressional leaders. Intelligence officers are divided over the use of such methods as waterboarding. Some say the methods helped get information that prevented terrorist attacks. Others, like John C. Gannon, a former C.I.A. deputy director, say it was a tragic mistake for the administration to approve such methods.
"Mr. Gannon said he thought the tapes became such an issue because they would have settled the legal debate over the harsh methods. 'To a spectator it would look like torture,' he said. 'And torture is wrong.'"

http://www.nytimes.com/2007/12/30/washington/30intel.html?pagewanted=1&hp

Previously Shane & Mazzetti reported that there were conflicting accounts whether Administration lawyers Harriet Myers, Alberto Gonzales, John Bellinger & David Addington advocated for the tapes' destruction:

"One former senior intelligence official with direct knowledge of the matter said there had been 'vigorous sentiment' among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

"Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal."

http://www.nytimes.com/2007/12/19/washington/19intel.html

As Glenn Greenwald puts it,

"Just consider how significant that question is, and how striking it is that it remains unanswered. By the time Addington and Gonzales were discussing this matter, it was well known -- obvious -- that those interrogations tapes were critically relevant to a number of judicial proceedings and government investigations, including The 9/11 Commission's. It is thus highly likely, to put it mildly, that any decision to destroy that evidence would constitute the crime of obstruction of justice, the same federal felony for which Lewis Libby has now (in a different matter) been convicted.

"And here are the two top legal aides to the President and the Vice President participating in a meeting where the destruction of this vital evidence was expressly considered, yet we do not know what it is that they said. Did they advise that the tapes be destroyed or give implicit permission for it? If so, it very likely means that Bush and/or Cheney (and certainly their top aides) committed serious felonies."

Fast forward to today: Mukasey announced the opening of a criminal investigation, to be conducted by John Durham, a federal prosecutor in Connecticut.

"Durham has a reputation as one of the nation's most relentless prosecutors. He served as an outside prosecutor overseeing an investigation into the FBI's use of mob informants in Boston and helped send several Connecticut public officials to prison.

[...]

"Two former prosecutors and a Justice Department official said that Durham, 57, was recommended for his assignment by his former boss, Kevin J. O'Connor, who was the U.S. attorney in Connecticut until he became an assistant to Attorney General Alberto R. Gonzales shortly before Gonzales resigned last year. O'Connor is awaiting confirmation as an associate attorney general. "

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/02/AR2008010203598.html

Also according to the WaPo:

"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.."

"'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.'"

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/02/AR2008010202060.html

Joe Biden expressed reservations similar to Conyer's statement in an AP report picked up by various national & international papers ~ not directed at Durham's integrity & reputation so much as the Department of Justice's unwillingness under Mukasey to distance itself more completely from the investigation.

"Sen. Joe Biden, a Delaware Democrat seeking his party's nomination for president, said a criminal investigation is no surprise, but suggested that Mukasey should remove himself from oversight of the investigation and appoint a special counsel 'completely independent and free from political influence.'"'

I can't help but add that when Mukasey recently pronounced that he was weaning White House operatives from the apparently free, unfettered & unprecedented access to internal DOJ matters (with great fanfare in the press), he also left himself a big back door of an exception in the small print at the end of the press accounts--all except, he said anything that touches on national security.

We haven't known Mukasey long, but we do know already that he means exactly what he says in the most parsimonious, restrictive & just plain stinky terms, especially where this Administration's anti-democratic impulses to hide its machinations from public view are concerned. The present Torture-tape gate episode certainly qualifies.