The Evolution of Patrick Fitzgerald’s Investigation into Torturer Disclosures
Back in the CIA Leak Investigation days, we learned some interesting things from the changes in Patrick Fitzgerald’s authority to serve as Special Counsel. So when the Jon Kiriakou complaint the other day mentioned that Fitzgerald’s authority for that investigation had been changed twice…
By letter dated March 8, 2010, Patrick J. Fitzgerald, the United States Attorney for the Northern District of Illinois, was appointed Special Attorney to supervise the investigation pursuant to Title 28, United States Code, Section 515, subject to the supervision of the Deputy Attorney General.
The March 8, 2010 letter, as supplemented and amended on July 14, 2010 and clarified by letter dated May 27, 2011, delegates authority to conduct an investigation and any related prosecutions in connection with any matter arising out of the Department of Defense seizures of certain photographs from Guantanamo Bay detainees.
…It made me wonder whether those authorization letters would explain how this investigation moved from targeting detainee lawyers to targeting a former CIA officer, Jon Kiriakou. I also wondered whether it would tell us anything about whether Fitzgerald used the new DIOG guidelines to get reporter contacts with National Security Letters.
Alas, the letters–March 8, 2010; July 14, 2010; May 27, 2011–don’t answer the latter question. But they do show an interesting evolution over time.
As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.
The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.
According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.
According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.
The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.
That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.
At that point in the investigation, Fitzgerald’s mandate was very preliminary.
You are hereby appointed as a Special Attorney to the United States Attorney General pursuant to 28 U.S.C. § 515. In this capacity, you will investigate and determine whether criminal charges are appropriate in connection with any matter arising out of the Department of Defense seizures of certain photographs from Guantanamo Bay detainees.
By July 14, however, it appears that Fitzgerald determined there might be something worth prosecuting.
This letter supplements and amends your appointment as Special Attorney to the United States Attorney General and specifically authorizes you to conduct in the District of Columbia or any other judicial district of the United States any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct.
This supplement, note, was issued slightly more than 18 months ago (some grand jury terms are 18 months long).
So Fitzgerald identified a potential crime 18 months ago and only now is charging (but not yet indicting) someone? That might suggest, by the way, that Fitzgerald got this authority to use a grand jury to force people–perhaps the detainee investigators–to cooperate.