9/11 Commission: Our investigation was “obstructed”

The bipartisan co-chairmen all but accuse the White House of committing serious felonies in destroying the CIA videos.

Topics: Washington, D.C.,

(*** Updated below – Outside prosecutor appointed

Update IIUpdate IIIUpdate IVUpdate V)

The bi-partisan co-chairmen of the 9/11 Commission, Tom Kean and Lee Hamilton, jointly published an Op-Ed in today’s New York Times which contains some extremely emphatic and serious accusations against the CIA and the White House. The essence:

[T]he recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

More strikingly still, they explicitly include the White House at the top of their list of guilty parties:

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

To underscore the seriousness of their accusations, Keane and Hamilton end with this:

What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the (sic) greatest tragedies to confront this country. We call that obstruction.

It’s hard to imagine a more serious scandal than this. As I noted the other day, it is a confirmed fact that Alberto Gonzales and David Addingtion — the top legal representatives of George Bush and Dick Cheney, respectively — participated in discussions as to whether those videotapes should be destroyed. The White House refuses to disclose what these top officials said in those meetings. Did they instruct that the videos should be destroyed or fail to oppose their destruction? The NYT previously quoted one “senior intelligence official with direct knowledge of the matter [who] said there had been ‘vigorous sentiment’ among some top White House officials to destroy the tapes.”



Thus, we have evidence that “top White House officials” vigorously argued that these videos should be destroyed. The number one aides to both the President and Vice President both participated in discussions as to whether they should be, almost certainly with the knowledge and at the direction of their bosses.

And now we have the 9/11 Commission Chairmen stating as explicitly as can be that the mere concealment (let alone destruction) of these videos constituted the knowing and deliberate obstruction of their investigation into the worst attack on U.S. soil in our history. Combined with the fact that the videos’ destruction almost certainly constitutes “obstruction of justice” with regard to numerous judicial proceedings as well, we’re talking here about extremely serious felonies at the highest levels of our government.

Both legally and politically, it’s hard to imagine a more significant scandal than the President and Vice President deliberately obstructing the investigation of the 9/11 Commission by concealing and then destroying vital evidence which the Commission was seeking. Yet that’s exactly what the evidence at least suggests has occurred here.

What possible justification is there for the White House to refuse to say what the role of Addington, Gonzales, Bush and Cheney was in all of this? Having been ordered by Bush’s new Attorney General not to investigate, are the Senate and House Intelligence Committees (led by the meek Silvestre Reyes and the even meeker Jay Rockefeller) going to compel answers to these questions? In light of this Op-Ed, do Mitt Romney, John McCain, Rudy Giuliani, Fred Thompson and Mike Huckabee think the White House should publicly disclose to the country the role Bush and Cheney played in the destruction of this evidence? If there are any reporters left who aren’t traipsing around together in Iowa, it seems pretty clear that this story ought to be dominating the news.

UPDATE: Michael Mukasey does the right thing:

The Justice Department opened a criminal investigation into the destruction of CIA interrogation videotapes and Attorney General Michael B. Mukasey appointed an outside prosecutor to oversee the case. . . .

“The Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation,” Mukasey said in a statement released Wednesday.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.

Marcy Wheeler has some background on Durham that looks encouraging. In his written statement, Mukasey said:

Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter . . . .

An investigation of this kind, relating to the CIA, would ordinarily be conducted under the supervision of the United States Attorney for the Eastern District of Virginia, the District in which the CIA headquarters are located. However, in an abundance of caution and on the request of the United States Attorney for the Eastern District of Virginia, in accordance with Department of Justice policy, his office has been recused from the investigation of this matter, in order to avoid any possible appearance of a conflict with other matters handled by that office. . . . .

There are some important, unknown details here, such as whether there are limits on the scope of the investigation and what powers the outside prosecutor will have. But by all appearances, Mukasey here did exactly what he should have done. As Patrick Fitzgerald’s investigation demonstrated, an honorable, aggressive independent prosecutor and clear acts of White House lawbreaking can be a potent combination.

UPDATE II: A more developed AP article fills in one important detail which I indicated was missing. It reports that Durham “will not serve as a special prosecutor such as Patrick Fitzgerald, who operated autonomously while investigating the 2003 leak of a CIA operative’s identity.”

When the Plame investigation began, John Ashcroft recused himself from any involvement in the investigation (due to his multiple ties to numerous subjects of the investigation), and his deputy, James Comey, then named Fitzgerald and assigned him full authority (.pdf) to exercise independently all powers of the Attorney General. Here, from what I can tell, at least from the AP article, Mukasey is not recusing himself, and the DOJ will thus retain authority over the prosecutor and the investigation. I’d want to know more details about that before drawing conclusions about what it means exactly.

UPDATE III: Former DOJ official Marty Lederman:

Initial reports are that the Attorney General appointed an “outside” counsel to oversee the criminal investigation of the CIA tape destruction. But there’s nothing really “outside” about John Dunham. He’s a career DOJ prosecutor, the number two official in the U.S. Attorney’s Office in Connecticut. . . .

This is not like the Scooter Libby case, in which the “special” prosecutor was guaranteed substantial independence from Main Justice.

The initial press reports were wrong in what they described. The only thing that is at all out of the ordinary in terms of who will manage this criminal prosecution is that the U.S. Attorney’s Office that ordinarily would handle it — the Eastern District of Virginia — recused itself (for reasons that are unknown, but almost certainly because the destruction of the videotapes may constitute obstruction of justice in cases that office prosecuted, such as the Moussaoui and Padilla prosecutions). Thus, DOJ simply assigned prosecutorial responsibility instead to Durham, who ordinarily works in the Connecticut U.S. Attorney’s office. But the case is just like any other case within the DOJ, and Mukasey, as Attorney General, retains supervisory responsibility over it.

Lederman says that this is not surprising — and implies that there’s nothing improper about it — since there is no formal reason why Mukasey should recuse himself (the way that Ashcroft’s multiple ties to Rove and others led him to do so). That might be, but the fact that Mukasey appears to retain control certainly ought to undermine public confidence in this investigation, at least to the extent that it ought not impede the Senate and House Intelligence Committees from aggressively investigating what occurred here.

UPDATE IV: The Washington Post adds a few details, including that Durham “will report to the deputy attorney general” (Acting DAG Craig Morford); that “Former attorney general Janet Reno named Durham as a special prosecutor to investigate allegations that FBI agents and police officers in Boston had ties to mafia informants”; that he is a “registered Republican”; that both CIA Director Michael Hayden and CIA Inspector General John Helgerson both recused themselves from the investigation; and that it is unclear whether Mukasey and his aides will also recuse themselves from any involvement here, as Democrats have previously demanded.

UPDATE V: House Judiciary Committee Chairman John Conyers is unhappy that the prosecutor here will lack independence:

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. . . .

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.

In one sense, one could argue that it’s unfair to impute the corruption of Alberto Gonzales to Michael Mukasey and simply to assume that a fair investigation therefore won’t be conducted (particularly given that a prosecutor like Durham would unlikely tolerate undue interference).

But I think Conyers’ broader point is more persuasive: the record of this administration leaves no doubt that they will interfere as much as they can to prevent any type of accountability for their actions, and that fact alone — regardless of one’s views of Mukasey — compels as independent an investigation as possible, one that resides beyond the suspicions that a passing familiarity with this administration necessarily and quite reasonably engenders.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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