How not to investigate the destruction of the CIA tapes.

The law, lawyers, and the court.
Dec. 17 2007 5:22 PM

Foxes Only

How not to investigate the destruction of the CIA tapes.

Michael Mukasey. Click image to expand.
Attorney General Michael Mukasey

The Justice Department is telling Congress to keep out of the investigation of the destruction of the CIA tapes that recorded hundred of hours of torture of two al-Qaida captives. DoJ wants the federal judge who ordered the department to preserve all evidence relevant to the detentions at Guantanamo Bay to keep out, too. To Congress, the argument is: Trust us—we've launched our own investigation, and you'll only get in the way. In court, the government urges: Keep moving, nothing to look at here, because no one has proved that these two al-Qaida guys were held at Guantanamo. Neither argument is convincing. And neither bodes well for Attorney General Michael Mukasey's promise of a new day at his department.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

To be sure, Congress and the executive often tangle over scandal investigations. Congress wants to launch a public inquiry, figure out what happened, hang it all out there. The Justice Department's first job is to determine whether anyone involved in the tapes' destruction broke the lawobstruction of justice comes to mind, and destroying evidence sought by public officials, not to mention the acts of torture themselves—and if so, lay the groundwork for an indictment. That can mean keeping leads and information close, at least for a long while, so that disclosures don't spook the people talking or prompt others to change their stories.

Still, often the government lawyers are willing to accommodate the legislature. Together they hash out what can go public without damaging the investigation, and then Congress gets to hold hearings—it does have its own oversight responsibilities to fulfill, after all. (The model is the 1975 Church committee investigation of the CIA and the FBI.) This time, however, DoJ seems entirely closed to such compromise or cooperation.

When I asked him this morning, former solicitor general and invaluable Slate contributor Walter Dellinger said that the Justice Department's concerns could be legitimate because congressional inquiries can pose real risks to ongoing criminal investigations. But, he added, Congress may well conclude that it's more important to find out quickly and make public who ordered, approved, and knew of the tapes' destruction.  Dellinger argues that the choice between which is more important, possible indictments or public inquiry, is ultimately a call for Congress to make, not the attorney general. If anyone goes to jail in a situation like this, it's likely to be a small fish, a factor that weighs in favor of hearings.

The case for Congress is particularly strong given the Justice Department's recent, hardly confidence-inspiring history. That's not Mukasey's fault, since it's all about the tattered tenure of the dearly departed Alberto Gonzales. But Mukasey has to recognize that it's the backdrop for assessing whether the best way to ease the public's mind about the tapes is an internal DoJ investigation that boxes out the Senate and the House.

There are also specific reasons to doubt that investigation, in the preliminary form it has taken so far. Heading up the initial DoJ probe are the CIA's inspector general, John Helgerson, and Assistant Attorney General Kenneth Wainstein, who heads the Justice Department's National Security Division. Helgerson has criticized the Bush administration's treatment of the CIA detainees, which is a plus. And earlier this fall, when CIA Director Michael Hayden threatened an internal inquiry into Helgerson's work, the inspector general looked like the poor watchdog who was being muzzled. But in his message about the tapes last week, Hayden said that the inspector general's office knew about the videotapes before they were destroyed. Which also means Helgerson's office failed to stop whoever eliminated them. He's one of the people who should be questioned in the investigation, rather than the one who should lead it.

Wainstein poses a similar concern. The tapes were destroyed in 2005, reportedly in November. Wainstein was named U.S. attorney for Washington, D.C., in October 2005, and for almost a year and a half before that, he was in charge of the office as the interim appointee. That means Wainstein was in the loop when various federal judges ordered the government, in spring and summer 2005, to preserve all the evidence—including interrogations—relevant to its reasons for holding the Guantanamo detainees who were trying to get a hearing in the judges' courtrooms. The government's lawyers represented to the judges that there was no reason to worry about destruction of such evidence. Who among them knew what about what was going on at the CIA? Those are questions that Wainstein may know something about. The government argues that the judge's order doesn't extend to the confession of Abu Zubaydah, one of the tortured men, because the detainees haven't shown that he was held at Guantanamo. But until a court rules on that, that's merely the government's interpretation.

If Wainstein is part of the story of whether the government directly violated the judges' preservation orders, then like Helgerson, he shouldn't be in charge of the initial probe of the tapes. What's more, the National Security Division of DoJ was created by the Bush administration to work with the intelligence agencies. It's on the team, not separate from it, as investigators should be. Why isn't this a job for the FBI, where Mukasey could presumably find plenty of people who know how to poke and prod and had absolutely nothing to do with the CIA's decision-making, and so don't appear to have a stake in the mess they're supposed to shovel through?

The government's rationale for keeping any inquiry into the tapes out of court rests on its claim that no one has shown that Abu Zubaydah was at Guantanamo. But the lawyer for the detainees who asked for a hearing on this, David Remes, didn't ask the judge in his case to hold a hearing because he represents Abu Zubaydah. He supported his request to Judge Henry H. Kennedy to hear him out on the significance of the tapes with a classified filing. We don't know what's in there, or course, but the suggestion is that there could be a direct link between the tortured confessions on the destroyed tapes and the ongoing detention of Remes' clients. Perhaps Zubaydah or the other man tortured on tape talked about specific detainees or acts that allegedly involve them.

When Mukasey became attorney general this fall, he was supposed to usher in a new era at the Justice Department. Nothing that's happened so far in the fallout over the tapes has the whiff of petty (and not so petty) partisan corruption that Gonzales stood for. But the structural problems with the internal DoJ investigation are disquieting. And the Keep Out message to Congress and the courts bears the familiar and tiresome marks of a Bush administration executive power grab. "The government is trying to force Congress to leave the matter entirely to Justice Department and the CIA, both of which are implicated in the destruction of the tapes and deeply interested parties," Remes wrote to Judge Kennedy. "Plainly the government wants only foxes guarding this henhouse." It's time for the foxes to slink back to their dens.