WASHINGTON - An outside prosecutor will oversee a criminal investigation into whether the CIA broke the law when it destroyed videotapes of its interrogations of two suspected terrorists, Attorney General Michael Mukasey said Wednesday. "I have concluded that there is a basis for initiating a criminal investigation of this matter," Mukasey said in a statement.
Mukasey said he selected John Durham, 57, a career prosecutor and deputy U.S. attorney from Connecticut, to avoid an appearance of conflict. Such an investigation normally would be handled by U.S. Attorney Chuck Rosenberg of the Eastern District of Virginia, where the CIA's headquarters is located. A spokesman from Rosenberg's office declined to comment.
Durham is best known for taking on street gangs and successfully prosecuting an FBI agent with Mafia ties.
CIA Director Michael Hayden acknowledged Dec. 6 that his agency destroyed the videotapes in November 2005. The CIA had videotaped al-Qaida operatives Abu Zubaydah and Abd al-Rahim al-Nashiri when agents interrogated them in 2002.
The House and Senate Intelligence committees also are investigating whether the CIA destroyed the tapes to avoid congressional scrutiny. Hayden issued a statement in December that House and Senate Intelligence committee leaders were informed of the existence of the tapes and of the agency's plan to destroy them. He later said after a closed-door meeting with the House committee that the CIA "could have done an awful lot better" at informing the committees.
Sen. Jay Rockefeller, D-W.Va., says the Senate committee has not located any record of being informed of the decision.
Rep. Silvestre Reyes, D-Texas, chairman of the House Intelligence Committee, said his committee's investigation will continue regardless of the Justice Department's criminal probe.
"There must be an independent congressional review of this matter," he said in a statement.
The House committee has subpoenaed Jose Rodriguez, who retired as the CIA's director of the National Clandestine Service last year and authorized destroying the tapes, to appear Jan. 16.
Rodriguez "did absolutely nothing illegal and acted in the best interest of the United States," said his attorney, Robert Bennett. "I think the acting U.S. attorney who was just appointed will confirm that by the end of this investigation."
The CIA "will, of course, cooperate fully with this investigation as it has with the other inquiries into this matter," CIA spokesman George Little said.
CIA Inspector General John Helgerson, who conducted the preliminary inquiry in cooperation with the Justice Department's National Security Division, has recused himself and the office from conducting the criminal investigation.
"Personnel from the Office of the Inspector General reviewed the tapes at issue some years ago as part of the Office's review of (the) CIA's detention and interrogation activities," Helgerson said in a statement. "I was personally involved in the preparation and approval of the subsequent Office of Inspector General report and in discussions of the issues raised in that report with U.S. government officials."
In an opinion piece published Wednesday in The New York Times, Thomas Kean and Lee Hamilton, chairman and vice chairman, respectively, of the 9/11 Commission, accused the CIA of obstructing the panel's investigation into the Sept. 11, 2001, attacks by failing to provide the videotapes when the committee requested intelligence reports in June 2003.
"Those who knew about those videotapes - and did not tell us about them - obstructed our investigation," they wrote. "There could have been absolutely no doubt in the mind of anyone at the CIA - or the White House - of the commission's interest in any and all information related to (al-)Qaida 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."
Federal district Judge Henry Kennedy, who is presiding over a case involving prisoners held at Guantanamo Bay, Cuba, had also demanded before the tapes were destroyed that the federal government preserve evidence from detentions and interrogations. The Justice Department has argued to Kennedy that the videos weren't covered by his order because the two men were being held in secret CIA prisons overseas, not at Guantanamo Bay.