Bush Doctrine Stalls Holder Confirmation
The Washington Post
By Carrie Johnson and Julie Tate
Washington Post Staff Writers
Sunday, January 25, 2009; A08
Even as Senate Republicans seek assurances that new leaders at the Justice Department will not prosecute former government officials over national security abuses, one of the highest-profile investigations of the Bush era is grinding to a close.
A little more than a year ago, then-Attorney General Michael B. Mukasey handpicked a prosecutor to investigate the destruction of CIA videotapes depicting harsh interrogation tactics used against two al-Qaeda suspects. The disclosure that the tapes, believed to portray the simulated drowning technique known as waterboarding, were destroyed in 2005 touched off an outcry from defense lawyers and civil liberties advocates who said the government should have produced the materials in lawsuits pending at the time.
Since then, the federal inquiry has proceeded mostly in the shadows. But prosecutor John H. Durham recently told a federal judge that he would wrap up interviews by the end of February -- a timetable complicated by the highly sensitive subject, the reluctance of current and former agency employees to cooperate and Durham's painstaking approach, according to court documents and three lawyers following the case.
The CIA tapes investigation illustrates a broader debate that is holding up the confirmation of Eric H. Holder Jr. to serve as President Obama's attorney general. Last week, leading GOP senators including John Cornyn (Tex.) demanded that Holder commit to not launching criminal probes of intelligence operatives, lawyers and high-level Bush advisers who took part in debates over warrantless wiretapping and detainee interrogations.
Congressional Democrats and left-leaning interest groups are calling on the Justice Department to revisit the alleged sins of the past and to provide the public with a legal reckoning. But it remains unclear whether Obama and Holder will have the appetite to devote scarce prosecutorial resources to exploring the politically sensitive allegations. At his Senate confirmation hearing Jan. 15, Holder said that "no one is above the law," but he hastened to add that he was not interested in "criminalizing policy differences."
Operating in the background is the Durham probe, which is among the more narrow of the national security dustups of the past eight years. At its simplest, the investigation has looked into whether anyone at the CIA or other high government offices intended to obstruct justice by eliminating videotapes that showed harsh questioning in 2002 of suspected al-Qaeda operatives Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, and Abd al-Rahim al-Nashiri. Prosecutors are exploring why the tapes were destroyed, even though they were covered by an array of lawsuits or congressional requests for information.
Yet as the probe has continued, the issues at play have grown complicated.
"Although a considerable portion of the work to be done in connection with the investigation already has been completed . . . a number of additional witnesses [must] be interviewed and/or reinterviewed," Durham wrote in a Dec. 23 court filing.
People following the investigation say they doubt that criminal charges will emerge from the 13-month inquiry, in part because of the difficulty in penetrating legal defenses cited by key actors in the case. One of the lead FBI agents, counterterrorism expert Stephanie Douglas, was transferred to a new investigation last fall, according to lawyers involved in the probe.
Tom Carson, a spokesman for Durham, declined to comment on the investigation.
Former CIA clandestine branch chief Jose A. Rodriguez Jr., who ordered the destruction of the tapes, has said through his attorney that he based his decision on legal advice from agency lawyers. The lawyers, Steven Hermes and Robert Eatinger, did not endorse the tapes' destruction but rather concluded there was "no legal impediment" to disposing of them, according to sources briefed on their advice.
Hermes and Eatinger, who only recently were interviewed by Durham, continue to work at the agency and have retained counsel, the sources said.
CIA spokesman George Little declined to comment.
"My whole purpose . . . was to find out exactly whether any laws were being broken by the lawyers in connection with the destruction of the videotapes," said Mark S. Zaid, the executive director of the James Madison Project, a nonprofit group that is suing the CIA over the missing tapes.
Jameel Jaffer, director of the national security project at the American Civil Liberties Union, filed a separate lawsuit seeking CIA materials. Jaffer said information is needed to "fill in a factual void," adding: "We have very little information about why these tapes were destroyed."
Durham has faced several obstacles, including demands from agency employees for legal immunity before they share their recollections. Another key figure not yet interviewed is Rodriguez. Through his attorney, Robert S. Bennett, Rodriguez previously declined to testify before congressional intelligence panels without an immunity grant.
Rodriguez's public defense mirrors that of others involved in the Bush administration's fight against terrorism. Line agents and higher-level officials involved in domestic wiretapping and interrogation practices have argued that they took guidance from the Justice Department's Office of Legal Counsel. Relying on legal advice negates the criminal-intent requirement necessary to prosecute most cases, unless authorities can prove that agents knew that the arguments were bogus but acted anyway.
Last week, in one of the first steps of his presidency, Obama underscored the importance of legal advice when he issued an executive order directing government employees not to follow any guidance about interrogation issued by the Office of Legal Counsel from Sept. 11, 2001, to Jan. 20, 2009. He also created a task force to examine broader issues related to interrogation practices.
Meanwhile, Democrats are pushing back against GOP pressure to stop investigating such matters as interrogation practices. Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee and a former U.S. attorney, sharply criticized Republicans on Friday for insisting that Holder rule out prosecutions of Bush administration officials who approved practices akin to torture.
"Anyone familiar with the criminal justice system -- especially those with experience as prosecutors or judges -- should know that a prosecutor should make no determination about who to prosecute before he or she has all the facts, and particularly not in response to legislative pressure," Whitehouse said.