DOJ May Act On Proposal to Expand Scope of Torture Tape Probe

By Jason Leopold

Justice Department officials are reviewing a proposal contained in a voluminous report prepared by House Judiciary Committee Chairman John Conyers that calls for allowing a special prosecutor who was appointed last year to probe the destruction of CIA interrogation videotapes to expand his probe into the Bush administration’s torture program, several Justice Department officials said Tuesday.

In January, Conyers issued a report, “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush,” and recommended that Attorney General Eric Holder “appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”

U.S. Attorney John Durham, who was appointed by former Attorney General Michael Mukasey last year to investigate the destruction of the CIA’s torture tapes had only been given the authority to probe whether the destruction of the tapes amounted to criminal violations.   

Conyers had asked Mukasey to expand the probe of the tape destruction and allow Durham to investigate whether techniques depicted on the tapes, such as waterboarding, “constituted violations of federal law.” But Mukasey turned down Conyers request.

“Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law…appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system),” Conyers wrote.

Jonathan Godfrey, a spokesman for Conyers, said earlier Tuesday he would look into whether there has been any conversation between Conyers and the Justice Department. Godfrey, however, did not have an answer yet as of Tuesday evening.

In an interview, a spokesman for Rep. Jerrold Nadler, D-NY, said the congressman has been in discussion with Holder “regarding his concerns on a number of critical issues, including the need for an independent counsel to investigate, and where appropriate, to prosecute those responsible for the illegal torture of detainees.”

Nadler “believes that, thanks to this administration’s commitment to greater transparency, the Attorney General’s forthright statement that waterboarding is torture, and the admission by Vice President Cheney that he authorized waterboarding, there can no longer be any question that there must be an investigation into precisely what happened and who is responsible, and to hold those responsible accountable,” said Nadler spokesman said Ilan Kayatsky. “The Congressman fully intends to keep pressing for the appointment of an independent counsel.”

The Justice Department attorneys cautioned that the agency has not decided to launch a criminal probe of the Bush administration, but the idea of allowing Durham to expand his probe is a possibility.

Right now, these sources said, the next course of action will rest heavily on the findings of Durham’s final report on the destruction of 92 interrogation tapes. It’s unclear if Durham has completed his report. In January, Durham had indicated in a court filing that he expected to wrap up his probe by the end of February.

But two weeks ago, Durham questioned the CIA’s former number three official, Kyle “Dusty” Foggo, about the destruction of the tapes. Foggo, who was sentenced to three years in prison for fraud for steering lucrative contracts to a friend, was due to report to federal prison last week but Durham asked for a delay so he could question him about the tape destruction.

Additionally, reports are due out from the Justice Department’s own ethics watchdog, which is said to be highly critical of the attorneys who created the legal framework for Bush’s torture policies, and a Senate Armed Services Committee report on Bush administration officials’ role in torture at Abu Ghraib prison in Iraq and Guantanamo is currently being declassified by the Defense Department. Both reports, Justice Department officials said, will likely fuel calls for a criminal probe.

Sen. Sheldon Whitehouse, D-RI, said Monday in an interview with MSNBC’s Rachel Maddow that the report from the Justice Department’s Office of Professional Responsibility (OPR) into the legal work of former attorneys John Yoo, Jay Bybee, and Steven Bradbury, “can’t be more than a few weeks away,” and that he has “every reason to believe it will be a devastating opinion.”

The report was completed in December but its release was delayed so Yoo, Bradbury, and Bybee could respond to the findings.

Whitehouse and Sen. Dick Durbin, D-Ill., requested in a letter last year that OPR probe Yoo, Bybee, and Bradbury’s legal work to determine if it met professional standards.  

OPR head H. Marshall Jarrett confirmed last year that his office probe is examining “whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys.”

Justice Department sources added that the idea to extend Durham’s investigation was not prompted by President Obama’s decision last week to release four Office of Legal Counsel “torture” memos-authored by Bybee, Yoo, and Bradbury-which described in gruesome detail the interrogation methods authorized for use against “high-value” detainees. The officials said the proposal had been discussed since February.

Obama’s decision to release the “torture” memos was roundly criticized by former Bush administration officials who have been staunch defenders of “enhanced interrogations.”

Former CIA Director Michael Hayden said in several cable news interviews and in a Wall Street Journal op-ed that the program worked and foiled terrorist plots against the U.S. He also said Obama’s decision to release the opinions will put national security at risk and become a recruitment tool for al-Qaeda.

On Fox News Monday, Dick Cheney said, “enhanced interrogation,” which he personally authorized, were a “success.”

“There are reports that show specifically what we gained as a result of this activity,” Cheney said. “They have not been declassified. I formally asked that they be declassified now.

“I haven’t announced this up until now, I haven’t talked about it, but I know specifically of reports that I read, that I saw that lay out what we learned through the interrogation process and what the consequences were for the country.”

However, a White House spokesman told reporters Tuesday Cheney never made such a request to the CIA.

Obama and his aides tried to quell criticism from numerous Republican lawmakers following the release of the memos by stating that CIA interrogators who followed Justice Department legal guidelines would not be prosecuted. On Sunday, Rahm Emanuel, Obama’s chief of staff, went a step further and said the Justice Department attorneys who designed the legal framework behind the torture program would also not face prosecution or investigation.

That led to an outcry among civil libertarians and several members of Congress who harshly criticized the Obama administration for sweeping evidence of war crimes under the rug.

On Monday, Sen. Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee, wrote a letter to Obama asking him to reserve judgment on whether Bush administration officials should be prosecuted until her committee completes its probe on the effectiveness of the CIA’s interrogation program in six to eight months.

“I am writing to respectfully request that comments regarding holding individuals accountable for detention and interrogation related activities be held in reserve until the Senate Select Committee on Intelligence is able to complete its review of the conditions and interrogations of certain high value detainees,” Feinstein’s letter says.

“This study is now underway, and I estimate its completion within the next six to eight months. A study of the first two detainees has already been completed and will shortly be before the committee.”

On Tuesday, in a departure from statements he has made since his Jan. 20 inauguration, Obama said he was open to the idea of a 9/11-type commission to probe the Bush administration’s torture policies, but he said he was concerned “about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations.”

As for the possibility of prosecuting former Bush administration lawyers who drafted the memos, Obama said “that is going to be more of a decision for the attorney general within the parameters of various laws, and I don’t want to prejudge that.”

Nadler, the chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, lauded Obama for “leaving the proverbial door open to the possibility of prosecutions, where warranted, of those responsible for the torture policy under the Bush administration.”

Nadler said he is “continuing my conversations with Attorney General Holder on this critical issue, and intend to hold Congressional oversight hearings.”

Obama added in statements to reporters Tuesday that “if and when there needs to be a further accounting of what took place during this period, I think for Congress to examine ways that it can be done in a bipartisan fashion outside of the typical hearing process that can sometimes break down and break entirely along party lines…”

“I’m not suggesting that that should be done, but I’m saying if you’ve got a choice,” Obama said. “I think it’s very important for the American people to feel as if this is not being dealt with to provide one side or another political advantage, but rather is being done in order to learn some lessons so that we move forward in an effective way. “

Senate Judiciary Chairman Patrick Leahy has been pursuing a bipartisan “truth commission” since February, but he has yet to receive support from his Republican colleagues.

Conyers, in his report on Bush’s “Imperial Presidency, proposed the creation of a “blue-ribbon” commission to probe Bush-era abuses and said hearings should be conducted alongside a Justice Department criminal inquiry.

But a resolution Conyers introduced in January, H.R. 104, to establish a national commission on presidential war powers and civil liberties has attracted a mere 27 co-sponsors as of March.

That Obama is now open to a congressional investigation, however, may lead Democratic lawmakers to back one of the two plans.

Still, the idea of appointing a special prosecutor or allowing Durham to probe the Bush administration’s torture practices instead of a “truth commission” would not be a good idea, said former federal prosecutor Elizabeth de la Vega.

“From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality. It’s a move that has so many downsides – and holds so few real benefits – that I would be more inclined to question President Obama’s motives if he appointed a special prosecutor than if he did not,” de la Vega wrote in a column published on

“If a special prosecutor were appointed today, what we would have tomorrow would be the very public initiation of a federal grand jury investigation. “Because of the stringent secrecy rules that govern grand jury proceedings – and prosecutors’ justifiable concern about violating them – information that was previously public may be transformed into secret grand jury material.


“Victims and witnesses will be interviewed behind closed doors. And most will gladly heed the prosecution’s suggestion that, while they have no obligation to keep their testimony secret, there are very good reasons to do so. So there will be no public narrative, no official opportunity for victims to describe what was done to them by the US government.”

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