[sidebar: Mukasey did not ask for a special prosecutor, Congress now has as of yesterday!! I am enamored of the conclusion of the piece below. Way to go!!]
A month before the news broke about the destruction of CIA tapes, I was back in Washington to speak on a panel. After the event, one of my former colleagues came over to discuss something in hushed tones. (“Jay”, let’s call him, used to be the top lawyer at the CIA’s Counterterrorist Center.) He made it clear to me that he disapproved of those who broke the Company’s code of silence. “Be careful,” was his message.
As justification, I told Jay that former officials should enlighten the public about intelligence issues. Then, as a jibe, I said that current officials should do more than say “no comment” about every story. Jay nodded in a way I wishfully interpreted as an acknowledgement. But since then, perhaps because he was involved in the tapes, Jay keeps the code. Undeterred, I offer some tidbits — “unclassified”—that Jay doesn’t want you to know.
Attorney General Michael Mukasey, on January 2, announced a full criminal investigation into the tapes. Before his announcement, the Justice Department (DOJ) and the CIA’s Inspector General (IG) had reviewed the matter for close to a month in a “preliminary inquiry.” But that was not the first time DOJ and the IG had joined forces. According to the press, DOJ/IG have been investigating many other CIA programs.
An investigation that spanned the 9/11 divide was “Peru shootdown.” In April 2001, missionaries traveling in a float plane in Peru were mistaken for drug traffickers and shot from the sky. Two people died. Although Peruvian officers operated the plane that fired the shots, they acted on information from another plane, staffed by CIA contractors.
The joint DOJ/IG investigation into the Peru incident took several years while they determined whether the drug interdiction program had deviated from President Clinton’s original plan. Plus, DOJ/IG investigated whether American officials had made any false statements about the April 2001 shootdown. One irony from Peru is that the investigation was most intense at the same time the White House was assuring the CIA it had nothing to fear from being aggressive after 9/11.
Two years ago, DOJ announced that it had closed the criminal case into Peru. But the IG investigation probably continues. Although our government paid millions to settle with the Peru survivors, many CIA officers still worry about the IG’s final report. They hope this report, due out soon, will not be as tough as the IG’s findings about 9/11, released a few months ago.
In any event, the CIA’s Inspector General, John Helgerson, perhaps learning from the complications on Peru, will not assist DOJ on the criminal investigation of the tapes. This time DOJ will try to do things without him. And time will tell whether a career prosecutor from Connecticut completes the investigation or whether Mukasey succumbs to those who want a special prosecutor.
DOJ, of course, is interested in John Rizzo, the CIA’s top lawyer. Rizzo is set to testify before the House Intelligence Committee on January 16. A major question is whether he participated in, or was aware of, the tapes’ destruction in 2005. So far, however, less attention has been paid to Scott Muller, the CIA’s General Counsel from 2002-2004.
Muller, having litigated at Davis Polk before he joined the Agency, viewed his job through the lens of a criminal defense lawyer. Rather than always serve the Agency’s best interests, Muller incorporated the personal agendas of senior officers. For instance, some complained at DOJ — and within the IG — that Muller improperly applied pressure to shut down the Peru investigation. Thus, Muller’s aggressiveness on Peru parallels reports of his aggressiveness, far earlier than 2005, in seeking to destroy the tapes. In all, DOJ should not forget what Muller has done.
Even though Rizzo was not central in approving the CIA’s interrogation program, he paid the political price. During his confirmation hearing in the summer of 2007, the Senate intelligence committee was dissatisfied that he did not disavow the Justice Department’s 2002 “torture memorandum.” Rizzo, realizing the votes were not there for him, withdrew his nomination.
Now, less than a year after the confirmation debacle, Rizzo is trusted as “Acting” General Counsel to clean up the mess concerning the tapes with DOJ, the IG — and with the oversight committees. For all, Rizzo is both intermediary and a subject of investigation.
At the CIA, so much depends on the nuances. One person’s hypocrisy is another person’s irony. And Jay’s code has become this man’s call for a bit of candor.
John Radsan, associate professor at William Mitchell College of Law, is a former federal prosecutor and a former assistant general counsel at the CIA from 2002-2004
January 16, 2008
Radsan: Breaking the Code: A Call for Candor at the CIA
January 10, 2008
Rodriguez want immunity to testify over tape destruction
Okay. When will someone get hip and force the appointment of a Special Prosecutor??
Clearly there is so politicization and FEAR of prosecution involved that anyone in the Justice Department or the Courts should be included in making decisions any more!!
CIA official wants immunity to testify
Staff and agencies10 January, 2008
By MATT APUZZO, Associated Press Writer 2 hours, 37 minutes ago
WASHINGTON - Attorneys for Jose Rodriguez told Congress that the former CIA official won‘t testify about the destruction of CIA videotapes without a promise of immunity, a person close to the tapes inquiry said Wednesday.
THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP‘s earlier story is below.
The decision by U.S. District Judge Henry H. Kennedy was a victory for the Bush administration, which had urged the courts not to wade into a politically charged issue already being investigated by the Justice Department, CIA and Congress.
Kennedy disagreed, ruling that attorneys hadn‘t "presented anything to cause this court to question whether the Department of Justice will follow the facts wherever they may lead and live up to the assurances it made to this court."
Kennedy, a former prosecutor who was appointed to the bench by President Clinton, said he had been assured that the Justice Department would report back if it found evidence that a court order had been violated.
Attorney David Remes had said a judicial inquiry might involve testimony from senior lawyers at the White House and Justice Department. Government attorneys, appearing in court Dec. 21, said such hearings would disrupt and possibly derail the Justice Department inquiry.
Kennedy had ordered the government not to destroy any evidence of mistreatment or abuse of detainees held at the U.S. naval base at Guantanamo Bay, Cuba. But the two suspects interrogated on video — Abu Zubaydah and Abd al-Rahim al-Nashiri — were not held at Guantanamo Bay. They were interrogated in secret CIA prisons overseas.
Remes, who represents Yemeni detainees at Guantanamo Bay, argued that destruction of the tapes may have violated a more general rule prohibiting the government from destroying any evidence that could be relevant in a case, even if not directly noted in a court order.
and this is more indepth (different source. San Jose Mercury News) ..
Rodriguez, the former head of the CIA's National Clandestine Service, ordered that the tapes, which show harsh CIA interrogation of two al-Qaida suspects, be destroyed in 2005. Rodriguez is scheduled to testify before the House Intelligence Committee on Jan. 16.
Defense attorney Robert Bennett told lawmakers, however, that he would not let Rodriguez testify because of the criminal investigation into the case. Without a promise of immunity, anything Rodriguez said at the hearing could be used against him in court.
The discussions were described to The Associated Press by two people close to the case who spoke on condition of anonymity because the talks were to be private.
The CIA has acknowledged that it destroyed the videos, and the Bush administration has urged Congress and the courts to stay out of the tapes inquiry while the Justice Department investigates.
U.S. District Judge Henry H. Kennedy agreed Wednesday not to hold hearings. He said the Justice Department had promised a thorough investigation, and he saw "no reason to disregard the Department of Justice's assurances."
Congress, however, has refused to back off and had planned to make Rodriguez one of the first witnesses in its investigation. It was unclear whether Bennett issued a formal request for immunity or merely told the committee that Rodriguez wouldn't testify without it.
Reached by telephone Wednesday night, Bennett said he would have no public comment on the matter. A spokesman for the committee also declined to comment.
Lawmakers are typically reluctant to grant immunity requests because doing so could torpedo a criminal investigation. Anything Rodriguez spoke about would be off-limits to the Justice Department, as would any secondary evidence built on his testimony.
Attorney General Michael Mukasey recently appointed a prosecutor to conduct a criminal investigation into destruction of the tapes. John Durham, a career public corruption and organized crime prosecutor, has a reputation for being independent.
Durham is investigating whether destroying the tapes amounted to obstruction of justice or violated any court orders.
Kennedy and others had ordered the Bush administration not to destroy any evidence of mistreatment or abuse of terrorism suspects being held at the U.S. naval prison at Guantanamo Bay, Cuba. But the two suspects interrogated on video—Abu Zubaydah and Abd al-Rahim al-Nashiri—were not held at Guantanamo. They were interrogated in secret CIA prisons overseas.
Kennedy, a former prosecutor who was appointed to the bench by President Clinton, said Wednesday that the tapes do not appear to have been covered by his court order. He ruled that attorneys for Yemeni detainees at Guantanamo Bay hadn't "presented anything to cause this court to question whether the Department of Justice will follow the facts wherever they may lead."
Attorney David Remes had said a judicial inquiry might involve testimony from senior lawyers at the White House and Justice Department. Government attorneys, appearing in court Dec. 21, said such hearings would disrupt and possibly derail the ongoing Justice Department inquiry.
Lawyers for other terrorism suspects have filed similar requests before other judges. While Kennedy's decision doesn't require those judges to follow suit, it will help bolster the Justice Department's argument that they should not wade into the investigation.
———
Associated Press writer Devlin Barrett contributed to this report.
December 10, 2007
Destruction of CIA Tapes: LAWSUITS TO FOLLOW
Terrorism
Dems Seek Probe re CIA Tapes; Destruction a Plus for Suspects’ Defense?
Posted Dec 7, 2007, 03:53 pm CST
By Martha Neil
Democratic legislators reacted angrily today to news that the U.S. Central Intelligence Agency had destroyed at least two videotapes of harsh interrogations of al-Qaida terrorist suspects in its custody, and called for an investigation. Meanwhile, observers predicted potential litigation and an adverse effect on the prosecution of suspected terrorists.
"Senator Edward M. Kennedy of Massachusetts accused the CIA of 'a cover-up,' while Senator Richard J. Durbin of Illinois said it was possible that people at the agency had engaged in obstruction of justice," reports the New York Times.
"Both called on Attorney General Michael Mukasey to investigate."
As detailed in an earlier ABAJournal.com post, the agency reportedly destroyed in 2005, in the midst of various investigations, videotapes of at least two 2002 interrogations of al-Qaida suspects. One reason for the destruction reportedly was to protect agents involved from potential legal repercussions.
However, in an e-mail to employees Thursday, Gen. Michael Hayden, the director of the CIA, said the tapes were destroyed to safeguard undercover officers and because they were no longer needed for intelligence purposes, according to the Times article.
Some legislators said they found such justifications dubious, including Kennedy. “Does the director believe the C.I.A.’s buildings are not secure?" he said today, according to the Times. "That excuse won't wash."
A Christian Science Monitor article predicted lawsuits over the CIA's destruction of the tapes, and Reuters reported that lawyers for defendants in terrorism cases say the destruction of the tapes could derail the prosecution.
"First, it's a criminal offense to destroy evidence,"Clive Stafford Smith told the news agency. He heads Reprieve, a British-based human rights group that represents prisoners held by the U.S. at the Guantanamo Bay military prison.
"Second, if you do, the American case law is quite clear,Smith says.
"The charges get dismissed against the individual if it's evidence that would have helped the defense."
