by John M. Curtis
(310) 204-8700

Copyright January 2, 2008
All Rights Reserved.

ewly minted Atty. Gen. Michael B. Mukasey defied conventional wisdom and opened a criminal investigation into the CIA tape destruction scandal. In 2005, CIA Director Porter Goss gave the green light to destroy the harsh interrogation tapes of alleged terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. Mukasey's decision to go forward with a criminal probe runs counter to current CIA Director Michael V. Hayden who insisted under intense questioning the tapes were destroyed to protect identities of CIA interrogators. Mukasey heeded the call of the CIA Inspector General and prosecutors in the department's National Security Division to elevate the initial probe to a criminal investigation. While no one knows for sure, the tapes may have shown “waterboarding,” a controversial interrogation technique discussed in Mukasey's confirmation hearings.

      Like all Bush appointees, Mukasey is under pressure to keep the White House from imploding it its last year. While the CIA is supposed to be the nation's premier independent intelligence agency, under Porter J. Goss it became an extension of the White House. When former CIA Director George J. Tenet got the ax July 11, 2004, it became obvious that intelligence ran from Vice President Dick Cheney's office through the CIA to the Pentagon's Defense Intelligence Agency, specifically the Office of Special Plans headed by Douglas J. Feith. Tenet, after all, presided over the intelligence disaster before Sept. 11 and the Iraq War. Tenet never denounced fraudulent intelligence manufactured by Feith about Saddam's nuclear arsenal and mobile germ factories before the Iraq War. Tenet now says he warned the White House about its faulty case against Saddam Hussein.

      Mukasey's decision to press ahead spells trouble for Goss's successor, Michael V. Hayden. While the interrogation tapes were recorded under Tenet and destroyed under Goss, Hayden put his neck out Dec. 12, 2007 telling the Senate Intelligence Committee with a straight face the tapes were destroyed to protect the identities of CIA interrogators. In reality, attorneys for alleged terrorist Zarcarias Moussaoui, Khalid Sheik Mohammed sought copies of the tapes to prove their clients were tortured into making false confessions. Mukasey frustrated the Senate Judiciary Committee at his confirmation hearings last October, refusing to comment on whether “waterboarding”—the subject of the destroyed CIA tapes—constituted torture. Opening up a criminal probe into CIA actions raises, once again, whether harsh interrogation techniques like “waterboarding” amount to torture.

      Former CIA director Porter Goss denied he had advance knowledge or issued the order to clandestine bureau chief Jose Rodriguez. “Well, I think there might have been concern that those tapes could have been called for by some outside body and the CIA would no longer maintain control of them,” said former CIA officer John Brennen, speculating why Rodriguez destroyed the tapes. Rodriguez gave the order in 2005 shortly after the Washington Post exposed the CIA's secret overseas' prisons. “And that therefore agency officers who participated in those interrogation sessions may be subject to some type of prosecution,” said Brennen, offering a different spin than Hayden to the Senate Intelligence Committee. While Atty. Gen. Mukasey refused to comment about “waterboarding,” Sen. John McCain left no doubt that it was “torture,” violating the Geneva Convention.

      Mukasey's predecessor Alberto R. Gonzales, before he served as attorney general, helped craft, as Bush's legal counsel, White House definitions of “enemy combatants” and acceptable interrogation techniques. While Hayden worries about whether CIA interrogators broke the law, it's clear that “waterboarding” was not considered torture and approved by the White House. “I expressed concern about destroying any videotapes and said that it would be a very ill-advised move by the agency,” said Rep. Jane Harman (D-Calif.), the ranking Democrat on the House Intelligence Committee, not buying Hayden's excuse about protecting CIA interrogators' identities. Hayden knows that whether the tapes were destroyed or not, there were records of who performed the interviews with al-Qaida terrorists at Guantanamo Bay and elsewhere. Destroying the tapes hid no one's identity.

      Appointing respected federal prosecutor U.S. Atty. John Durham helps Mukasey wash his hands of a sticky situation. Hayden and Inspector General John L. Helgerson recused themselves from the criminal probe yet the CIA director already tipped his hand about bogus reasons for destroying the tapes. Rodriguez is set to testify before the House Intelligence Committee Jan. 16 to explain why he ordered the tapes destroyed and whether he was authorized by then director Goss. Hayden can't have it both ways: Feigning ignorance of Rodriguez's actions and, at the same time, excusing him because he was protecting the anonymity of his employees. Muskasey's probe will focus on whether destroying the tapes constituted a crime. In so doing, it will raise more questions about CIA practices and whether Hayden, who apparently excused Rodriguez, is fit to run the agency.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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