The prosecutor who led the case in the destruction of CIA videotapes may get a call from U.S. District Court Judge Alvin Hellerstein of the Southern District of New York on how to resolve litigation over the recordings, the New York Law Journal reported Tuesday.
At a hearing before Hellerstein, Assistant U.S. Attorney Tara LaMorte told him that a career federal prosecutor in Connecticut, John Durham, could speak with him over the case brought by the American Civil Liberties Union.
The ACLU first filed the Freedom of Information Act suit in 2003 to obtain the records. But CIA officials destroyed the tapes in 2005, violating Hellerstein’s order from 2004 to preserve the evidence.
In 2008, then-Attorney General Michael Mukasey chose Durham to lead the Justice Department’s investigation into the destruction of the 92 videotapes, two of which showed accused al-Qaeda detainees Abu Zubaydah and Abd al-Rahim al-Nashiri being subjected to waterboarding. Al-Nashiri is accused of planning the 2000 USS Cole bombing in Yemen.
President Barack Obama and Attorney General Eric Holder have both called waterboarding torture. In 2009, Holder asked Durham to also probe the alleged abuse of about a dozen prisoners whom CIA personnel or contractors interrogated. Former Vice President Dick Cheney had said that Holder’s decision to expand the investigation was “political.”
Durham found no criminal wrongdoing in the investigation and did not recommend that the DOJ bring charges over the destruction of the tapes.
Hellerstein wants the ACLU lawyers and prosecutors to submit briefs on what steps should be taken to resolve the case. “This kind of destruction never should have occurred,” Hellerstein said, according to the New York Law Journal. “It tells the court the CIA does not trust the judges to have proper regard for the security interests of the United States.”
Assistant United States Attorney John Durham is close to completing a preliminary review of whether there is evidence that CIA agents or contractors violated the law when they used brutal methods to interrogate terror detainees, Attorney General Eric Holder said in speech Thursday night.
Holder, speaking in a question and answer session after his remarks at the University of the District of Columbia Law School, said Durham is ”close to the end of the time that he needs and will be making some recommendations to me.”
Holder’s comments were his fullest status report to date on the one of the Justice Department’s most politically sensitive inquiries. On Friday, several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.
Holder said the investigation would determine whether any intelligence officers or contractors went beyond the restrictions, outlined by the Office of Legal Counsel in a series of classified legal opinions which were written during the George W. Bush administration and which have since been disavowed.
The preliminary inquiry has created tensions between the Justice Department and the CIA, key partners in the government’s effort against international terrorism. Leon Panetta, the CIA Director, opposed Holder’s decision to open the inquiry in to the agents’ conduct, and in November 2009, seven former CIA directors wrote to President Barack Obama asking him to halt the investigation.
The interrogation opinions permitted harsh techniques like waterboarding that Holder has said amounted to torture. The opinions also directed that the interrogations, using so called “enhanced techniques,” be carried under rules intended to prevent serious injury or death, though human rights groups have condemned the methods.
“What I made clear is that for those people who acted in conformity with Justice Department opinions from the Office of Legal Counsel that said you could do certain things… people who acted in good faith in line with the Department of Justice guidance, will not be the people we are looking at or interested in,” Holder said Thursday.
“It’s a question of whether people went beyond those pretty far-out OLC opinions, people who went beyond that,” Holder said. “That’s what we’re looking at.”
Durham was appointed in August 2009 to look into the treatment of prisoners at so-called “black sites” overseas. In 2008, Durham had been appointed by then-Attorney General Michael Mukasey to investigate the destruction of dozens of CIA videotapes of detainee interrogations. Holder made no mention of the status of that aspect of Durham’s inquiry.
At the appointment in August, Holder said “neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.”
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A Senate Republican leader suggested Sunday that Attorney General Eric Holder should consider resigning over the decision to criminally charge alleged Christmas Day airplane bomber Umar Farouk Abdulmutallab rather than put him in military custody for interrogation.
Holder is “doing a better job of interrogating CIA employees than he is of interrogating terrorists, and he’s not making a distinction between enemy combatants and terrorists flying into Detroit trying to blow up planes and American citizens who are committing a crime,” Sen. Lamar Alexander (R-Tenn.) said in an appearance on Fox News Sunday.
“He needs to go to Congress and say I made that decision, and here’s why. And based on that perhaps he should step down,” Alexander said, according to The Hill.
Alexander is chairman of the Senate Republican Conference, the No. 3 GOP leadership position in the Senate. He is among the least partisan of Senate Republicans, according to an analysis by Congressional Quarterly, which found the Tennessee Republican was among those GOP senators who voted most often with President Barack Obama.
Last week, Senate Minority Leader Mitch McConnell (R-Ky.), and four top Republican committee members wrote in a letter to Holder that the decision to have FBI agents instead of intelligence officials interrogate Abdulmutallab was “hasty. The Nigerian national and alleged al-Qaeda-linked operative is accused of trying to blow up a Detroit-bound airliner with explosives hidden in his underwear.
Holder has been under fire from Republicans for a number of national security decisions, including his decision in August to appoint a special prosecutor, John Durham, to investigate whether CIA employees and contractors broke anti-torture laws during the Bush administration.
The decision to have Durham look into the matter came on heels of the DOJ Office of Professional Responsibility recommendation that urged Holder to reopen nearly a dozen alleged CIA prisoner-abuse cases.
Holder also backed release of Bush-era Office of Legal Counsel memos in April that justified brutal interrogation techniques that critics consider torture. The White House at the time fretted over the political implications of releasing the memos but ultimately decided the matter was the Attorney General’s call.
And on Friday, the Obama administration reversed Holder’s November decision to hold a trial in Lower Manhattan of self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed and four other alleged plotters of the Sept. 11, 2001 terrorist attacks. The decision to move the trial came after a bipartisan outpouring of criticism about the security costs and disruptions of holding a trial in New York.
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A former head of the Office of Legal Counsel said on Tuesday he does not oppose a criminal investigation of the office, though he defended the motives of two lawyers who were at the center of the Bush administration’s controversial interrogation program, reports The BLT.
“I personally am not opposed to criminal investigations of myself and others from our time there,” Daniel Levin, who served as acting head of OLC from July 2004 to February 2005, said at a forum at American University’s Washington College of Law.
Levin, now a partner at White & Case, said that such an investigation amounted to a “blunt instrument” but that it could be worthwhile, according to The BLT.
Levin also said he could support the formation of a “truth commission” proposed by Senate Judiciary Chairman Patrick Leahy (D-Vt.) and others, but he had doubts about whether it could be effective.
At the same time, he said believed that former OLC officials Jay Bybee and John Yoo, who have drawn criticism for authoring the so-called “torture memos,” acted in good faith. “I genuinely believe, for what it’s worth, that they genuinely believed the advice they were giving was correct,” Levin said.
Bybee and Yoo are the subjects of a long-awaited Office of Professional Report examining whether the lawyers violated professional standards in their work at OLC. Attorney General Eric Holder said recently the report was near completion.
In August, Holder tapped a career prosecutor, John Durham, to conduct a preliminary inquiry into possible criminal conduct by CIA interrogators. He has not ordered a probe of the OLC lawyers.
While at OLC, Levin was not among the advocates for the use of waterboarding and other harsh interrogation techniques on suspected terrorists. After subjecting himself to water boarding at a military base near Washington, Levin concluded that technique constituted torture unless performed with tight restrictions.
Levin reportedly was pushed out the Justice Department before he could complete a memo imposing more controls on the use of waterboarding and other methods.
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Michael Isikoff and Mark Hosenball at Newsweek offer an interesting analysis of Sen. Kit Bond’s (R-Mo.) announcement last week that he was pulling the entire GOP staff off a Senate Intelligence Committee investigation into Central Intelligence Agency interrogation practices.
The move appears to be part of a broader campaign by congressional Republicans and the U.S. intelligence community to pressure [Attorney General Eric] Holder to rescind his recent appointment of a special counsel to investigate allegations of torture during the Bush administration.
The flare-up is significant because, whatever the results of Holder’s criminal probe, the Senate panel’s investigation offered perhaps the only opportunity for a full public accounting of the U.S. intelligence community’s conduct in the aftermath of September 11 attacks.
The result, Isikoff and Hosenball write, is the interrogations inquiry has become “hopelessly politicized.”
Bond, the ranking Republican on the intelligence panel, said he objects to Holder’s decision to empower a special prosecutor, John Durham, to examine whether criminal laws were broken during interrogations. Among the methods the CIA used against terrorism suspects is waterboarding, a method both Holder and President Obama have described as torture.
According to the Washington Times:
“Had Mr. Holder honored the pledge made by the president to look forward, not backwards, we would still be active participants in the committee’s review,” said Sen. Christopher S. Bond of Missouri, the panel’s vice chairman. “Instead, DOJ sent a loud and clear message that previous decisions to decline prosecution mean nothing and old criminal charges can be brought anytime against anyone — against these odds, what current or former CIA employee would be willing to gamble his freedom by answering the committee’s questions?”
Senator Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, said she regretted Bond’s decision to boycott the investigation.
Bond’s move came after seven former CIA directors wrote Obama, urging him to overturn Holder’s decision. The Sept. 18 letter reads:
Attorney General Holder’s decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute. Moreover, there is no reason to expect that the re-opened criminal investigation will remain narrowly focused.
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Attorney General Eric Holder will appoint a special prosecutor to investigate cases in which CIA members and contractors may have broken anti-torture laws during the interrogations of suspected terrorists, the Justice Department announced this afternoon.
Assistant U.S. Attorney John H. Durham, a 20-year veteran of the Connecticut U.S. Attorney’s Office, was tapped for the job. Read a Washington Post profile of Durham here. Durham is already investigating the destruction of CIA interrogation videotapes that allegedly showed the use of waterboarding and other harsh interrogation methods. He was tapped by then-Attorney General Michael Mukasey to oversee that probe.
In a statement, White House press secretary Robert Gibbs said:
The President has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted. Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.
Durham will determine whether there is enough evidence to warrant a full investigation into CIA officials who may have violated the law in their handling of suspected terrorists, according to the news release.
The Attorney General’s decision comes on the heels of the DOJ Office of Professional Responsibility recommendation released today that urged Holder to reopen nearly a dozen CIA prisoner-abuse cases.
“There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community,” Holder said in the news release. “I could not disagree more with that view.”
He added, “That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”
Congressional Democrats including Senate Judiciary Committee Chair Patrick Leahy (D-Vt.), House Judiciary Committee Chair John Conyers (D-Mich.) and House Judiciary constitution, civil rights and civil liberties subcommittee Chair Jerrold Nadler (D-N.Y.) applauded Holder’s decision. Leahy said he hopes this investigation will hold responsible the people who “undermined our values and our laws.”
“I recognize how difficult this decision has been for Attorney General Holder, and I am grateful that the Justice Department is finally being led by an independent Attorney General who is willing to begin investigating this dark chapter in our country’s history,” Leahy said in a statement. “I had no doubt that he would put the interests of the law ahead of politics, and he has demonstrated that.”
But they said that more must be done. Nadler said Holder’s decision was the “first step.”
“As I have said for many months, it is vital that this special counsel be given a broad mandate to investigate these abuses, to follow the evidence where it leads, and to prosecute where warranted,” Nadler said in a statement. “This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”
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The New Republic profiles John Durham, the special prosecutor from Connecticut appointed by then-Attorney General Michael Mukasey to investigate the CIA’s destruction of videotapes documenting brutal interrogations of terrorism suspects.
After Attorney General Eric Holder was quoted in Newsweek earlier this month saying he was leaning towards appointing a prosecutor to investigate the Bush-era interrogations, this Washington Post story by Carrie Johnson named Durham as a possible choice for the job.
“Durham may be under consideration for an expanded mandate, given that he already has reviewed hundreds of sensitive CIA cables and other documents related to treatment of detainees.”
Read a more recent New York Times’s story about Holder’s deliberations here.
Quinnipiac law professor Jeffrey Meyer, a former colleague of Durham, told the New Republic: “Think of him as the second coming of Patrick Fitzgerald”- yet without the publicity hound aspect to him.
To us, the most interesting part of the profile is the unearthing of this blog post from a year and a half ago by Georgetown law professor Marty Lederman, a vocal critic of torture. Lederman is now a Deputy Assistant Attorney General in the Office of Legal Counsel, whose lawyers during the Bush administration produced the legal opinions authorizing torture.
Lederman was highly skeptical of Durham’s appointment, questioning his independence (Durham reports to the Deputy Attorney General in the CIA tapes matter):
But there’s nothing really “outside” about John Durham. He’s a career DOJ prosecutor, the number two official in the U.S. Attorney’s Office in Connecticut. As the Attorney General explained today (see statement below), the case would ordinarily be handled by the U.S. Attorney for the Eastern District of Virginia, but that U.S. Attorney requested that his office be recused from the matter “in order to avoid any possible appearance of a conflict with other matters handled by that office.” (Hmm . . . what might that mean? That the investigation deals with whether there was obstruction of justice in cases being prosecuted by the E.D. Va., perhaps?)