By Jason Leopold

Outgoing CIA Director Michael Hayden claimed in interviews and speeches earlier this week that President-elect Barack Obama promised him personally last month that he would not launch an investigation into the agency’s interrogation practices.

Hayden said Obama’s response to a question during an interview on ABC News’ “This Week” about his reluctance to launch a probe into the Bush administration’s torture practices “is what he said to me privately.”

“He’s looking forward,” Hayden said during his last press briefing Thursday, “and that’s very appropriate…We are asked to do things routinely that no one else is asked to do, that no one else is allowed to do. You can’t do this to these people.”

But when asked on Friday to respond Hayden’s statements, two high-level aides on Obama’s National Security transition team who were privy to details of Hayden and Obama’s briefings disputed the CIA chief’s comments, saying that Obama did not make any such assurances to Hayden or anyone else in the Bush administration about not investigating interrogation practices. The aides requested anonymity because they said they were not cleared to speak publicly.

“That is a wholly inaccurate characterization of their conversation,” said one of the aides on the National Security team. “President-elect Obama did not make any promises to Mr. Hayden nor did President-elect Obama engage in a discussion about investigations of any sort, about any past policies, with Mr. Hayden or anyone in the Bush administration.”

In fact, both aides said as much as Obama would like to “look ahead” and deal with what they said were more pressing issues, such as economic turmoil, unemployment, healthcare, and the housing crisis, they said the fact that Obama will inherit two ongoing investigations that began under Bush’s presidency into torture policies means the issue revolving around torture will remain on the front-pages and in the headlines and makes it all the more likely that Obama’s Justice Department will be forced to undertake some sort of investigation.

Hayden did not return calls for comment Friday.

The aides pointed to a special counsel’s probe into the CIA’s destruction of videotapes that showed terrorist detainees being waterboarded by CIA interrogators in secret overseas prisons due to be complete at the end of February or early March that may result in a criminal referral to the Department of Justice.

It is widely believed that the videotapes were destroyed to cover-up illegal acts. It is also believed that the tapes were destroyed because Democratic members of Congress who were briefed about the tapes began asking questions about whether the interrogations were illegal, according to Jane Mayer, author of the book The Dark Side and a reporter for The New Yorker magazine.

“Further rattling the CIA was a request in May 2005 from Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General’s report on detention inside the black prison sites,” Mayer wrote in her book. “Among the items Rockefeller specifically sought was a legal analysis of the CIA’s interrogation videotapes.

“Rockefeller wanted to know if the intelligence agency’s top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubayda and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller. But the Democratic senator’s mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request the made for these documents to [former CIA Director Porter] Goss in September 2005.”

The videotapes were destroyed in November 2005, the same month that the Washington Post published a front-page story about CIA black prison sites where the interrogations took place and were filmed. Also in November 2005, the New York Times published a story about Helgerson’s classified report into the agency’s interrogation methods.

Obama’s aides said in addition to the CIA’s counterterrorism policies, Hayden discussed with Obama Special Counsel John Durham’s yearlong probe into the destruction of the interrogation videotapes and told Obama “pointedly” “to resist pressure” to authorize further investigations when the report is published. But the aides said Obama simply listened to Hayden and did not respond with promises to the CIA Director about what would happen after the investigation is complete “because we don’t know what the outcome” of Durham’s probe will be.

In court papers filed earlier this month, Durham said a “considerable portion” of his investigative work has been completed, but some witnesses still need to be interviewed and others need to be reinterviewed.

“Investigations such as this, involving the handling and review of highly sensitive and compartmented information, pose particular challenges which result in inevitable delays that are not encountered in typical criminal cases,” Durham said.

CIA IG Report A Major Concern

Another matter Hayden discussed, the aides said, and was particularly concerned about, was the findings of a classified CIA inspector general’s report completed in May 2004 about the agency’s techniques used on terrorist detainees between 2001 and 2003 that is said to be brutal in its detailed description of interrogation methods. The report, prepared by Inspector General John Helgerson, concluded that certain methods used by CIA interrogators “appeared to constitute cruel, inhumane and degrading treatment, as defined by the International Convention Against Torture.”

“In his report, Mr. Helgerson raised concern about whether the use of the techniques could expose agency officers to legal liability,” according to a Nov. 9, 2005, story in The New York Times. “They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.

“The officials who described the report said it discussed particular techniques used by the CIA against particular prisoners, including about three-dozen terror suspects being held by the agency in secret locations around the world. They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the CIA since he was captured in March 2003. Mr. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe he is drowning.”

One person who assisted CiA Inspector General John Helgerson with his probe was Mary O. McCarthy, who alleged CIA officials lied to members of Congress during an intelligence briefing when they said the agency did not violate treaties that bar, cruel, inhumane or degrading treatment of detainees during interrogations, according to a May 14, 2006, front-page story in The Washington Post.

“A CIA employee of two decades, McCarthy became convinced that ‘CIA people had lied’ in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading,” The Washington Post reported.

McCarthy “worried that neither Helgerson nor the agency’s Congressional overseers would fully examine what happened or why.” Another friend said, “She had the impression that this stuff has been pretty well buried.” The Post story reported, “In McCarthy’s view and that of many colleagues, friends say, torture was not only wrong but also misguided, because it rarely produced useful results.”

In April 2006, ten days before she was due to retire, McCarthy was fired from the CIA for allegedly leaking classified information to the media, a CIA spokeswoman told reporters at the time.

The aides said Hayden cautioned Obama and his choice to head the CIA, Leon Panetta, not to make any judgments about the contents of Helgerson’s report or allegations leveled by McCarthy, which have surfaced within CIA again, according to intelligence analysts, until they have had a full understanding of the intelligence the CIA obtained through torture. Hayden said the information the CIA obtained through techniques such as waterboarding “saved lives.”

In her book, Mayer wrote that the “2004 Inspector General’s report, known as a “special review,” was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply “sickening.” The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, “You couldn’t read the documents without wondering, “Why didn’t someone say, ‘Stop!’”

But it’s the probe into the destruction of the torture tapes will likely be the most troubling for the Bush administration because it’s expected to provide a back-story into the administration’s torture program beginning with a look at the CIA inspector general’s report that Hayden is said to have spoken to Obama about.

In a little known Jan. 10, 2008 declaration in response to a motion filed by the American Civil Liberties Union to hold the CIA in contempt for destroying the videotapes, the CIA provided insight into the Helgerson’s report and revealed that he viewed the torture tapes.

“In January 2003, [Office of Inspector General] OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing,” the declaration says. “During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS to review the videotapes at the overseas location where they were stored.

“OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified DOJ and other relevant oversight authorities of the review’s findings.”

According to Mayer, Vice President Dick Cheney stopped Helgerson from fully completing his investigation. That proves, Mayer contends, that as early as 2004 “the Vice President’s office was fully aware that there were allegations of serious wrongdoing in The [interrogation] Program.”

“Helgerson was summoned repeatedly to meet privately with Vice President Cheney” before his investigation was “stopped in its tracks.” Mayer said that Cheney’s interaction with Helgerson was “highly unusual.”

Cheney has admitted in several interviews over the past month that he personally “signed off” on waterboarding three terrorist detainees.

In October 2007, Hayden ordered an investigation into Helgerson’s office, focusing on internal complaints that the inspector general was on “a crusade against those who have participated in controversial detention programs.”

Probe Into Torture Memo Nearly Complete

In addition to the torture tapes probe, the Justice Department’s Office of Professional Responsibility is said to be wrapping up an investigation into the genesis of the Aug. 1, 2002, torture memo addressed to then White House Counsel Alberto Gonzales and written by former Office of Legal Counsel attorney John Yoo and signed by Yoo’s boss Jay Bybee.

That OPR probe is examining “whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,” according to H. Marshall Jarrett, the head of the watchdog office. Justice Department spokesman Peter Carr confirmed that the investigation is “ongoing”, however, it’s unclear whether that report will be released publicly upon completion.  

it’s unclear whether the investigation will lead to recommendations that individuals under scrutiny be prosecuted. But there is a likelihood that the OPR investigation will recommend that Yoo and Bybee be “rebuked” for the way in which they interpreted a law that formed the basis of the memo, according to people familiar with the OPR’s probe. Yoo is a professor at the University of California at Berkeley and Bybee is an appeals court judge. 

The investigation was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year. But a report is expected as early as March.

The probe has centered on Yoo’s use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods.

Obama’s aides said over the past two weeks there have been an uptick in pressure from outgoing Bush administration officials-communicated to them by people like Hayden and others-about the need to refrain from launching investigations into torture.

Those concerns have increased, the aides said, due to comments made in an interview with the Washington Post by the head of military commissions at Guantanamo Bay who said one detainee had been tortured and, as a result, she refused to permit him from being prosecuted because evidence was obtained through torture.

But the disclosure to the Washington Post earlier this week by retired Judge Susan J. Crawford, the head of military commissions at the Guantanamo Bay detention center, that she would not permit an alleged high-level al-Qaeda detainee to be prosecuted because the evidence against him was obtained through torture means investigations and/or hearings are all but certain, be it by the Justice Department, a congressional committee, or so-called “truth commission” are all but certain, Obama aides said.

“We tortured [Mohammed al-]Qahtani,” said Crawford, who was appointed convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

Obama’s aides said what will likely unfold over the next few months is a “public airing” of previously secret Justice Department legal opinions and other documents revolving around the Bush administration’s interrogation policies and then perhaps an independent panel will be formed to examine the issues. 

The aides added that Bush administration officials have expressed further concern to Obama’s transition team about the possibility of leaks to the media by intelligence operatives about interrogations and other controversial policies now that Bush is leaving office will spur calls and place pressure on the Obama administration to launch investigations.

‘Torture is a Crime’

Indeed, Attorney General Michael Mukasey told the Wall Street Journal in an interview Friday that now that the word “torture” has been used as a way to describe some interrogations he is worried that government lawyers and others who assisted the Bush administration in crafting those policies are at risk of criminal prosecution. Mukasey said criminal prosecution became a real fear for intelligence officials after Obama’s Attorney General designee, Eric Holder, said during his confirmation hearing this week that waterboarding is torture.

“Torture is a crime,” Mukasey told the Journal, adding that he worried “about the effect on…the work of fine intelligence lawyers who are called on to make judgments on questions like that, often under tremendous time pressure — not to mention the pressure of an attack that killed 3000 people [and caused worry that] maybe there was going to be another one.”

Last month, Mukasey argued that there is no legal basis to prosecute current and former administration officials for authorizing torture and warrantless domestic surveillance because those decisions were made in the context of a presidential interest in protecting national security.

“There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful,” Mukasey said during a Dec. 3 roundtable discussion with reporters.

Unlike his successor, Mukasey refused to say whether waterboarding was torture during his confirmation hearing in 2007.

Mukasey told the Journal that he would not answer the question because it would expose CIA agents and lawyers to who acted in good faith after 9/11 to gather intelligence.

“It’s one thing to write opinion on matter of abstruse law. It’s quite something else to write [opinions] on whether something is or isn’t a crime,” Mukasey said. He added that in the future, government lawyers and agents “have to be concerned that you may someday — having given your best, most honest, most impartial advice — have it be said of you that you sanctioned a crime.”