The Commons is a weblog for concerned citizens of southeast Iowa and their friends around the world. It was created to encourage grassroots networking and to share information and ideas which have either been suppressed or drowned out in the mainstream media.

"But if the cause be not good, the king himself hath a heavy reckoning to make, when all those legs and arms and heads, chopped off in battle, shall join together at the latter day and cry all 'We died at such a place;' some swearing, some crying for a surgeon, some upon their wives left poor behind them, some upon the debts they owe, some upon their children rawly left. I am afeard there are few die well that die in a battle; for how can they charitably dispose of any thing, when blood is their argument? Now, if these men do not die well, it will be a black matter for the king that led them to it; whom to disobey were against all proportion of subjection." (Henry V, Act V, Scene 4)

Thursday, January 03, 2008

Glenn Greenwald - 9/11 Commission: Our investigation was "obstructed"

9/11 Commission: Our investigation was "obstructed"

(*** Updated below - Outside prosecutor appointed

Update II - Update III - Update IV - Update 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:

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:
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:
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:

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:
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. . . . .

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:

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.

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:

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

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.

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