DOJ Absolves CIA For Destroying Torture Evidence

 

The federal deadline for torture-related obstruction of justice charges against certain CIA personnel expired Monday. That probe is controversial because of claims that the DOJ is covering up wrongdoing by a whitewash investigation of misconduct by CIA and DOJ personnel.

Suspicions arise especially because the investigation has been led since 2008 by John Durham, a career Justice Department prosecutor based in Connecticut. Our Justice Integrity Project (JIP) has revealed that courts have found that Durham was implicated in suppressing evidence in at least two other cases.  

In July, we revealed also via Harvard's Nieman Watchdog that Durham and his longtime Connecticut colleague Nora Dannehy had been the lead prosecutors in a major official corruption case where a federal appeals court ruled that authorities illegally suppressed evidence.

Nonetheless, Bush Attorney Gen. Michael Mukasey named Durham in 2008 to investigate the CIA’s destruction of videotapes after 2005 interrogations of terror suspects. Similarly, the attorney general quelled controversy by naming Dannehy later that year to probe the 2006 political purges of eight (by some counts nine) U.S. attorneys for political reasons.

The Obama Attorney Gen. Eric Holder, left, has continued both Durham and Dannehy in their probes to ferret out potential misconduct by their colleagues. In 2009, Holder appointed Durham to lead the Justice Department's investigation of the legality of CIA's use of so-called "enhanced interrogation techniques."

But the DOJ's announcements about their investigations have not disclosed the court findings. Similarly, the mainstream media have ignored these blights on the investigators' credentials. 

Prosecutorial misconduct in hiding evidence is so serious that it prompted the federal judge presiding over the 2008 trial of then-Senator Ted Stevens of Alaska, at right below, to force the DOJ to vacate the convictions. The judge also pressured the DOJ to undertake a major internal investigation of why the misconduct occurred.

DOJ has not announced any results from that probe. Amidst complaints of a whitewash, the DOJ informed Congress in July that Dannehy had found no cause for criminal action in the one firing she examined in-depth, that of former New Mexico U.S. Attorney David Iglesias. The nation has 93 presidentially-appointed U.S. attorneys.

JIP echoes the initial assessment in March 2007 of New York Times columnist Paul Krugman that the real story has always been whether the DOJ would investigate potential improprieties by its U.S. attorneys to keep their jobs by persecuting innocent targets or protecting guilty ones. Launching probes primarily against political targets and illegally suppressing evidence are among the tools that prosecutors can use to impact investigations and, arguably, keep their jobs in a highly political environment. Thus, the DOJ’s unprecedented mid-term firing of certain prosecutors in coordination with the White House in 2006 was a symptom, not necessarily the only problem.

But Dannehy focused on the Iglesias dismissal, and never called witnesses vital to understanding the actions of such prosecutors Leura Canary in Alabama, a 2001 Bush-appointee. Canary continues to run her office two years after Obama’s election and fully five years after its notorious prosecution of former Democratic Gov. Don Siegelman.

JIP’s reporting this summer suggests that the DOJ named both Dannehy and Durham knowing they were compromised from the start by their complicity in the same kind of wrongdoing they were appointed to investigate. The lack of follow-up by traditional media further underscores how difficult it is for the public to learn about a bipartisan culture of whitewash at the DOJ.

An important juncture arrives Monday in Durham’s investigation of potential CIA and DOJ obstruction of justice.  This involves the destruction of videotapes of the interrogation and suspected torture in November 2005 of two terrorism suspects, Abu Zubaydah and Abd al-Rahim al-Nashiri. An attorney who writes powerful legal analysis of such cases under the nom de blog “bmaz” on FireDogLake’s subsite Emptywheel wrote the Justice Department’s public relations office this week seeking comment.  He wrote:

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five-year statute on most all of the general crimes that could possibly be under investigation by John Durham.

No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

….

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence….If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

His full letter and background are here. We followed up by seeking comment from the DOJ's public affairs office, and will report developments as they occur.

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To report on suspicions of whitewash is not the same thing as finding them, of course, or to denigrate the efforts of the DOJ as a whole.  Attorney Gen. Eric Holder honored more than 300 of DOJ's employees during its annual awards ceremony last week, as reported here by the news site Main Justice.

But the Justice Department’s mission requires that its leaders operate in transparent fashion. So it’s surprising, to say the least, that its takes a start-up legal reform group like ours to be the first to reveal in 2010 that the leaders of two of the DOJ’s most important internal probes have long been implicated in the kind of conduct they’re supposed to be investigating in-depth nationwide.

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Washington Post, No charges in destruction of CIA videotapes, Justice Department says, Jerry Markon, Nov. 9, 2010. The Justice Department will not file criminal charges over the destruction of CIA videotapes depicting the harsh interrogation of terrorism suspects, limiting the legal fallout from one of the Bush administration's most fraught legacies, officials said Tuesday.

After an exhaustive probe that lasted nearly three years, federal prosecutor John Durham concluded that he would not bring a criminal case against the CIA officers. The burning of the 92 tapes on Nov. 9, 2005, was authorized in a cable sent by Jose Rodriguez Jr., head of the agency's directorate of operations.

The tapes showed the interrogations of two high-profile detainees. Sources have said they depicted waterboarding, a form of simulated drowning that human rights groups and Obama administration officials say is torture.

"As a result of that investigation, Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes," Justice Department spokesman Matthew Miller said.

Yet even as the government closed one chapter in the investigation of Bush administration interrogation practices after the Sept. 11, 2001, attacks, other parts of the probe remained open. Sources familiar with Durham's investigation said authorities have not ruled out filing charges against officials who may have misled investigators during the probe into the tapes' destruction.

Durham is also conducting a related, and potentially more explosive, investigation into whether CIA employees and contractors broke the law in conducting interrogations at "black site" prisons. Sources said that probe remains active.

The political debate over whether the Bush administration violated civil rights in the years after Sept. 11 or was only trying to protect Americans also showed no signs of ending. In an interview Monday with NBC News, former president George W. Bush defended the waterboarding of terrorism suspects. On Tuesday, human rights groups criticized the Justice Department's decision in the CIA videotapes case and cited what they called Bush's legacy of torture.

"This decision is stunning: There is ample evidence of a coverup regarding the destruction of the tapes,'' ACLU Executive Director Anthony D. Romero said. "The Bush administration was instructed by a court of law not to destroy evidence of torture, but that's exactly what it did.''

C. Dixon Osburn, a spokesman for Human Rights First, said members of the group are "disappointed that the Justice Department has chosen not to pursue charges in this case" but "remain hopeful" that Durham's pending inquiries will produce criminal charges.

CIA Director Leon E. Panetta said that he welcomed the news and that the agency has cooperated with Durham's investigation from the start. "We will continue, of course, to cooperate with the Department of Justice on any other aspects of the former program that it reviews,'' he said.

But a former senior CIA operations officer, speaking on the condition of anonymity in order to comment freely, questioned the decision not to bring charges and said the tapes were not destroyed "in total innocence."

"To my understanding . . . there was a standing order from a federal judge that said not to destroy the tapes. That trumps any inside the CIA legal call," the ex-official said.

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