The Crime Is Torture, Not Only Obstruction Of Justice

Attorney General Michael Mukasey announced yesterday that he was authorizing an investigation into the CIA's destruction of videotapes. Here's part of what he said:

“Following 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, and I have taken steps to begin that investigation as outlined below."

Note that this announcement makes no reference to the underlying activity being videotaped, i.e., waterboarding, which is torture and illegal under U.S. law, although the Senate, including Democrats Diane Feinstein and Chuck Schumer on the Judiciary Committee, voted to confirm Mukasey without his acknowledging this, a bad judgment that is now coming back to haunt us.

Mukasey's framing of the investigation is a problem for two reasons. First, it takes the spotlight off the real problem, which is destroying people, not videotapes. This is something the U.S. Congress seems happy to accommodate because the Democrat leadership had been advised of these activities and not objected. Jane Harmon (D-CA) only asked that she receive copies of the tapes, and therefore only can object to not being given these. Ditto for Nancy Pelosi, the Speaker of the House (D-CA), who also was briefed on the U.S. torture of detainees and did not object. However, the U.S. media did not sign onto this free pass for the government to torture and it is disturbing that they are not asking more questions about this.

A second problem is that narrowing the investigation to the circumstances leading to the destruction of the tapes significantly limits the exposure of the CIA to charges of illegality. It appears that various officials in the U.S. Congress and also the 9-11 Commission had requested these tapes. But it is not clear that failing to comply with an interagency request is a criminal and not administrative failing. The obstruction of justice charge for which Scooter Libbey was convicted came out of his lying to the FBI. But members of Congress and a Presidential Commission are not part of the Department of Justice, and therefore it seems likely that failure to comply with a request from these branches of government could be construed as a case of bad office management, even if willfully defiant. The videotapes were never subpoenaed, only requested by individual members, and it is doubtful that any time a federal agency is nonresponsive to a request from a member of Congress that the violation is criminal. Indeed that seems unlikely.

It is of course possible that CIA agents or White House staff might give statements admitting that they believed the videotapes were destroyed out of a concern they would provide evidence that might be used against them for violating the law against torture, and this could be used against them. Here's the statutory language defining "obstruction of justice," from the United States Code, Section 18, 1519:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Again, this does appear to be what occurred but this is a far lesser crime than torturing people.

Perhaps if Senators Feinstein and Schumer had backed up the other Democrats on the Judiciary who voted against Mukasey's confirmation because he would not affirm waterboarding torture, then we would have an Attorney General who would be launching an investigation into what actually occurred. The person who did the interrogation is giving interviews admitting that he tortured, so the absence of the videotapes is not a problem. In fact, the CIA is trying to have the Justice Department investigate the agent for disclosing his activities, which means they are acknowledging his account's veracity.

Since the investigation is being vetted through the Justice Department and not a special counsel, it is up to Mukasey to decide on whether to prosecute the CIA for torture, and he's already on record for giving waterboarding a free pass. In fact precisely because of the destruction of the tapes he may even try to fidget out of this by saying that absent the evidence he cannot say with certainty whether torture occurred, which was his line during the hearings, one that seems to have been crafted in cahoots with the White House anticipating exactly this unfolding of events. But again, this is not the fault of the White House, but of the Democrats who could have easily stopped this and did nothing. (The image is from a CNN article about John Kiriakou, the former CIA agent who admitted he tortured Al Qaeda suspects.)