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Criminal Probe Opened Over CIA Tapes

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MATT APUZZO | January 2, 2008 11:08 PM EST | AP

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WASHINGTON — The Justice Department opened a full criminal investigation Wednesday into the destruction of CIA interrogation videotapes, putting the politically charged probe in the hands of a mob-busting public corruption prosecutor with a reputation for being independent.

Attorney General Michael Mukasey announced that he was appointing John Durham, a federal prosecutor in Connecticut, to oversee the investigation of a case that has challenged the Bush administration's controversial handling of terrorism suspects.

The CIA acknowledged last month that in 2005 it destroyed videos of officers using tough interrogation methods while questioning two al-Qaida suspects. The acknowledgment sparked a congressional inquiry and a preliminary investigation by Justice into whether the CIA violated any laws or obstructed congressional inquiries such as the one led by the Sept. 11 Commission.

"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," Mukasey said in a statement released Wednesday.

Durham, who has served with the Justice Department for 25 years, has a reputation as one of the nation's most relentless prosecutors. He was appointed to investigate the FBI's use of mob informants in Boston, an investigation that sent former FBI agent John Connolly to prison.

"Nobody in this country is above the law, an FBI agent or otherwise," Durham said in 2002 after Connolly's conviction.

Mukasey made the move after prosecutors from the Eastern District of Virginia, which includes the CIA's headquarters in Langley, Va., removed themselves from the case. CIA Inspector General John L. Helgerson, who worked with the Justice Department on the preliminary inquiry, also removed himself.

"The CIA will of course cooperate fully with this investigation as it has with the others into this matter," agency spokesman Mark Mansfield said.

Mukasey named Durham the acting U.S. attorney on the case, a designation the Justice Department frequently makes when top prosecutors take themselves off a case. He will not serve as a special prosecutor like Patrick Fitzgerald, who operated autonomously while investigating the 2003 leak of a CIA operative's identity.

"The Justice Department went out and got somebody with complete independence and integrity," said former Connecticut U.S. Attorney Stanley Twardy, who worked with Durham. "No politics whatsoever. It's going to be completely by the book and he's going to let the chips fall where they may."

The CIA already has agreed to open its files to congressional investigators, who have begun reviewing documents at the agency's Virginia headquarters. The House Intelligence Committee has ordered Jose Rodriguez, the former CIA official who directed the tapes be destroyed, to appear at a hearing Jan. 16.

Rodriguez's attorney, Robert S. Bennett, had no comment.

Durham first gained national prominence following the 1989 murder of Mafia underboss William Grasso, which led to one of the biggest mob takedowns in U.S history. He then turned to Connecticut street gangs, winning dozens of convictions, putting some gang leaders in jail for life.

He supervised the investigation that sent former Republican Connecticut Gov. John G. Rowland and several members of his administration to prison on corruption charges.

"He'll suck the political air right out of the investigation and just go after the facts," said Mike Clark, a retired FBI agent who investigated Rowland. "He's going to do it his way and just keep digging."

In June 2005, U.S. District Judge Henry H. Kennedy, who was overseeing a case in which U.S.-held terror suspects were challenging their detention at Guantanamo Bay, Cuba, ordered the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department has argued to Kennedy that the videos weren't covered by his order because the two men were being held in secret CIA prisons overseas, not at Guantanamo Bay.

The tapes' destruction has riled members of the commission that investigated the Sept. 11, 2001, terror attacks. In an opinion piece in Wednesday's New York Times, commission chairmen Tom Kean and Lee Hamilton accused the CIA of failing to respond to requests for information about the 9/11 plot.

Anyone at the agency who knew about the tapes and failed to disclose them "obstructed our investigation," said Kean, a former Republican governor of New Jersey, and Hamilton, a former Democratic House member from Indiana.

The CIA has asserted that Kean and Hamilton's panel had not been specific enough in their requests and they should have asked for interrogation videos if that is what they wanted.

On Capitol Hill, the House Intelligence Committee wants to know who authorized the tapes' destruction; who in the CIA, Justice Department and White House knew about it and when, and why Congress was not fully informed.

The committee, which had threatened to subpoena the records if they do not get access, also wants to know exactly what was shown on the tapes.

Since leaving the White House shortly before Christmas, President Bush has not addressed the tapes' destruction. Before going to Camp David, then his ranch in Crawford, Texas, Bush said he was confident that investigations by Congress and the Justice Department "will end up enabling us all to find out what exactly happened."

He repeated his assertion that his "first recollection" of being told about the tapes and their destruction was when CIA Director Michael Hayden briefed him on it in early December.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, said Mukasey's announcement proved that lawmakers "were right to be concerned with possible obstruction of justice and obstruction of Congress."

Sen. Edward Kennedy, D-Mass., also lauded Mukasey's decision to launch a criminal inquiry. "The rule of law requires no less," Kennedy said. "Those tapes may have been evidence of a crime, and their destruction may have been a crime in itself."

Sen. Joe Biden, a Delaware Democrat seeking his party's nomination for president, said a criminal investigation is no surprise, but suggested that Mukasey should remove himself from oversight of the investigation and appoint a special counsel "completely independent and free from political influence."