CIA Torture Investigator Plays Powerful But Mysterious Role

John Durham, a career federal prosecutor who made news June 30 when the Justice Department acted on his recommendation to narrow a probe of CIA mistreatment of detainees, has a mixed and mysterious record in high-profile internal probes.

U.S. Attorney Gen. Eric Holder, left, said the DOJ opened a full criminal investigation of the deaths in CIA custody of two detainees on Durham’s recommendation but closed inquiries into 99 other cases in which agency officers and contractors interrogated suspected terrorists.

Durham is a Connecticut-based assistant U.S. attorney and former interim U.S. attorney. Our Justice Integrity Project revealed last July that a federal appeals court found in 2008 such serious misconduct by a team of federal prosecutors supervised by Durham that the court vacated seven of eight corruption convictions against Connecticut businessman Charles Spadoni.

Thus, the 2008 Bush and then Obama administration appointments of Durham and his prominent Connecticut colleague, Nora Dannehy, to lead major national investigations of misconduct by other federal officials smacked of politics and whitewash. In coverage of the high-profile probes initiated by Durham and Dannehy, no one in authority or in the mainstream news media was willing to reveal to the public that a federal appeals court had rebuked the investigators themselves.

CIA and civil liberties groups differ on whether Durham’s report and Holder’s decision represent too much or too little accountability for post 9/11 CIA activities with contractors. CIA defenders similarly call the topic of his probe “enhanced interrogation” of detainees. That is the predominate usage in the mainstream media, which defers to authorities on this kind of newly created language for sensitive matters. Opponents call it “torture” in keeping with longtime usage in the United States and worldwide before the Bush administration implemented on a large scale harsh new methods, including waterboarding, for suspects after 9/11.  I use the historic terminology, and quote analysis today by Salon legal commentator Glenn Greenwald:

The two token cases to be investigated involve the most grotesque brutality imaginable: they apparently are (1) a detainee who froze to death in an American secret prison in Afghanistan in 2002 after being ordered stripped and chained to a concrete floor, and (2) the 2003 death of a detainee at Abu Ghraib whose body was infamously photographed by guards giving a thumbs-up sign.  All other crimes in the Bush torture era will be fully protected.  Lest there be any doubt about what a profound victory this is for those responsible for the torture regime, consider the reaction of the CIA:

"On this, my last day as director, I welcome the news that the broader inquiries are behind us," said a statement from CIA Director Leon Panetta, right, who will take over as defense secretary on Friday. "We are now finally about to close this chapter of our agency's history."

Consider what's being permanently shielded from legal accountability.  The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons -- "black sites" -- purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross.

Concerns about Durham's role investigating such matters resurfaced in November when he recommended against prosecuting CIA officials who intentionally destroyed video evidence of torture of detainees. Ironically, Connecticut federal authorities have maintained an all-out prosecution effort against Spadoni, who deleted files from his office computer in 1999 when he feared a federal investigation of his boss for bribing the state’s treasurer. Senior U.S. District Judge Ellen B. Burns, Spadoni’s trial judge, last week rejected Spadoni’s request for dismissal of the remaining obstruction of justice count. His resentencing is scheduled Aug. 25.

Durham figured prominently in another federal internal investigation making big news recently with the June 22 arrest of Boston mobster James “Whitey” Bulger on charges that include 19 murders. Durham led the Justice Department’s internal investigation of its personnel, primarily in its Boston offices, who helped enable Bulger and his gang to operate for decades as FBI informants against the Mafia. With that protection, Bulger expanded his turf as Mafia members were imprisoned.

U.S. District Judge Mark Wolf, presiding over a number of major Mafia cases (including when I was his law clerk from 1990 to 1991), became suspicious of government wrongdoing. In 1998, Wolf began a 10-month hearing on that matter, resulting in a 661-page finding of fact implicating more than 20 federal law enforcement personnel in serious misconduct. The New York Times June 28 published an editorial praising Wolf, right, for in essence cracking the case, and underscoring a need to investigate potential similar abuses nationwide.  Durham came in from Connecticut for a fresh look at DOJ’s operations there in the wake of the judge’s findings. He led a grand jury probe that filed racketeering charges against former FBI star agent John “ZIP” Connolly. Connolly was convicted and sentenced to prison. In 2008, authorities convicted him also in the second-degree murder of a former jai-alai executive. Connolly is serving a life-term.

For such reasons, Durham is portrayed in virtually all official and mainstream news accounts as a heroic figure in law enforcement, with a long and distinguished record as a career prosecutor. That view may in the end be justified if all relevant facts are fully known. But inherent in the prosecution and CIA process is that they are largely secret, and often operate via highly political imperatives that provide incentives to scapegoat some suspects and whitewash others for essentially similar conduct.

Apologists for Justice Department probes usually cite internal investigations by career personnel as proof of fairness. In reality, however, this may be a distinction without much difference since political appointees control the overall process and control career opportunities for employees and many of their family members. Similarly, there is scant difference between the major parties on accountabiilty for torture or other abuses by the Executive Branch in the name of national security. President Obama announced a policy of "look forward" just before he took office, and has worked to expand White House power in a number of the most relevant areas. These include his assertion of a Presidential right to assassinate U.S. citizens that his team deems, based on their secret procedures to be terrorists, and to launch military actions in Libya and other nations without congressional approval. However, he has ordered an end to waterboarding.

In the wake of massive firings, including 700 recently by Gannett alone announced a week ago, mainstream “beat” reporters covering federal agencies are under increasing pressure to write briefer news accounts and forgo documentation of such sensitive matters that could ruin good relations between reporters and authorities. I am familiar with this process. I covered the Justice Department fulltime from 1976 to 1981 as a reporter for the Hartford Courant, and in Washington have heard first-hand reports of many threats by federal officials (including at the White House level) of retribution against reporters blamed for asking too many questions about sensitive matters.

Justice Department officials have declined any comment on my inquiries regarding the Durham and Dannehy probes, saying I should rely on their formal announcements and court filings for this reporting. That is standard practice, of course, and even praiseworthy if consistently applied. However, exceptions are  But exceptions are made in Washington for truly sensitive matters with reporters who cooperate with authorities. Therefore, we see a need at  our Project to provide these kinds of perspectives for your consideration, along with links below to mainstream news accounts and other background materials.

CIA Probe

Salon / Unclaimed Territory, Torture crimes officially, permanently shielded, Glenn Greenwald, July 1, 2011. In August, 2009, Attorney General Eric Holder -- under continuous, aggressive prodding by the Obama White House -- announced that three categories of individuals responsible for Bush-era torture crimes would be fully immunized from any form of criminal investigation and prosecution:  (1) Bush officials who ordered the torture (Bush, Cheney, Rice, Powell, Ashcroft, Rumsfeld); (2) Bush lawyers who legally approved it (Yoo, Bybee, Levin), and (3) those in the CIA and the military who tortured within the confines of the permission slips they were given by those officials and lawyers (i.e., "good-faith" torturers).

The one exception to this sweeping immunity was that low-level CIA agents and service members who went so far beyond the torture permission slips as to basically commit brutal, unauthorized murder would be subject to a "preliminary review" to determine if a full investigation was warranted -- in other words, the Abu Ghraib model of justice was being applied, where only low-ranking scapegoats would be subject to possible punishment while high-level officials would be protected. Yesterday, it was announced that this "preliminary review" by the prosecutor assigned to conduct it, U.S. Attorney John Durham, is now complete, and -- exactly as one would expect -- even this category of criminals has been almost entirely protected, meaning a total legal whitewash for the Bush torture regime.

Washington Post, Justice Department to investigate deaths of two detainees in CIA custody, Peter Finn and Julie Tate, June 30, 2011. The Justice Department has opened full criminal investigations of the deaths in CIA custody of two detainees, including one who perished at Iraq’s notorious Abu Ghraib prison, U.S. officials said Thursday. The decision, announced by Attorney General Eric H. Holder Jr., means continued legal jeopardy for several CIA operatives but at the same time closes the book on inquiries that potentially threatened many others. A federal prosecutor reviewed 101 cases in which agency officers and contractors interrogated suspected terrorists during years of military action after the Sept. 11, 2001, attacks but found cause to pursue criminal cases in only two.

Associated Press / Huffington Post, CIA Interrogation Deaths: Justice Department To Investigate Deaths Of Two Detainees, Peter Yost, June 30, 2011. The Justice Department's probe of CIA terrorist interrogation practices is entering a new phase: Attorney General Eric Holder announces there will be a full criminal investigation into the deaths of two men while they were in custody.

ABC-TV,

Spadoni Prosecution

Nieman Watchdog, New Questions Raised About Prosecutor Who Cleared Bush Officials in U.S. Attorney Firings, Justice Integrity Project, July 25, 2010.  Four days before Nora Dannehy was appointed to investigate the Bush administration’s U.S. attorney firing scandal, a team of lawyers she led was found to have illegally suppressed evidence in a major political corruption case. This previously unreported fact calls her entire investigation into question as well as that of a similar investigation by her colleague, John Durham, of DOJ and CIA decision-making involving torture.

Hartford Courant, Latest Ruling Clears Way For Sentencing Of GOP Lawyer In Bribery Scandal, Edmund H. Mahony, June 24, 2011. Nearly a decade after he was convicted in a bribery scandal at the Rowland-era state Treasury, a federal judge on Friday rejected an 11th hour effort by Republican lawyer Charles Spadoni, 62, to stay out of prison. The decision by Senior U.S. District Judge Ellen Bree Burns suggests that Spadoni, right, is running out of options. After denying a motion that would have dismissed the sole count that remains pending against him — a conviction for obstruction of justice — Burns set a sentencing date of Aug. 25. Spadoni was convicted in 2003 of participating in a scheme with Paul Silvester, his friend and the former state treasurer, to distribute millions in bribes from the former Triumph Capital Group, a Boston financial house Silvester selected to invest $200 million in state pension fund money.

Bulger / FBI Case
New York Times, The Judge Who Cracked the Bulger Case, Editorial Board, June 28, 2011.  for anyone trying to fathom James (Whitey) Bulger’s long, pathological career on both sides of the law, a 661-page opinion by Mark Wolf, chief judge of the Federal District Court in Massachusetts, tells the inside story.  In 1998, the judge held a 10-month hearing on the F.B.I.’s failure to tell the United States attorney in Boston that Mr. Bulger and Stephen (the Rifleman) Flemmi were their informants against organized crime. The Wolf opinion is famous in the world of criminal justice. It led to high-profile hearings in Congress on “The F.B.I.’s Use of Murderers as Informants.”

Justice Integrity Project, FBI Confronts Its Demons By Busting Mobster Whitey Bulger, Andrew Kreig, June 28, 2011. The FBI’s capture of Boston mobster James “Whitey” Bulger in California last week on 19 murder charges shows impressive commitment. Agents used a $2 million reward and an innovative publicity campaign to locate the former FBI informant even though his prosecution could bring the FBI new embarrassment. Two top FBI agents have already been accused of murder in the shocking tale of Bulger’s reign as a stone-cold killer protected both by law enforcement and his brother, William “Billy” Bulger, the longtime president of the Massachusetts senate and a powerbroker with national-level clout.