I’m all in favor of holding the several people in the White House who intervened to destroy evidence responsible for their actions: I expect Steven Cambone, Rummy, David Addington, Alberto Gonzales, and probably Cheney deserve the heat for destroying the torture tapes.

But as we begin to hear about Jose Rodriguez considering immunity…

THE CIA chief who ordered the destruction of secret videotapes recording the harsh interrogation of two top Al-Qaeda suspects has indicated he may seek immunity from prosecution in exchange for testifying before the House intelligence committee.

Jose Rodriguez, former head of the CIA’s clandestine service, is determined not to become the fall guy in the controversy over the CIA’s use of torture, according to intelligence sources.

[snip]

The House intelligence committee has subpoenaed Rodriguez to appear for a hearing on January 16. Last week the CIA began opening its files to congressional investigators. Silvestre Reyes, a Democrat who is chairing the committee, has said he was “not looking for scapegoats” – a hint to Rodriguez that he would like him to talk.

… it might be well to remember what I pointed out when Rodriguez was first floating the idea of immunity.

The article also includes a clear signal from the masterful press manipulator, Bob Bennett, that he intends to advise his client John Jose Rodriguez to plead the Fifth.

Bennett told NEWSWEEK that his client had been "a dedicated and loy­al public servant for 31 years" and "has done nothing wrong." But he warned that Rodriguez may refuse to cooperate with investigators if he concludes that the probes are a "witch hunt." "I don’t want him to become a scapegoat."

In case you missed it, Bennett uses the same phrase Monica Goodling’s lawyer, John Dowd, used, "witch hunts," just before he snookered Congress into offering her immunity for a bunch of stuff that Congress already had evidence she was doing. As a reminder, Monica said almost nothing that incriminated Rove or Harriet and only sort of incriminated AGAG. But she managed to get herself immunity for "crossing the line" and politicizing DOJ’s hiring practices. Bennett’s use of precisely same language as Monica’s lawyer may be no accident.

[snip]

Which is, frankly, about the only reason Michael Mukasey is correct in asking the House Intelligence Committee to back off. Crazy Pete Hoekstra is pretty close to Porter Goss, who appears to know more about the destruction of the torture tapes than he is letting on. And I could see Hoekstra doing the same favors–of impeding an investigation by manipulating the less than crafty chair of the House Intelligence Committee–that Dick Cheney did when he was in the same position during Iran-Contra. In other words, I’m not sure we can trust Crazy Pete to want to get to the bottom of this, and if HPSCI starts offering immunity as incautiously as they did with Monica, then I worry their investigation will stall any real investigation by DOJ–if it exists.

That is, in the hands of a less than shrewd majority and a politically reliable minority leader, immunity can be counter-productive. In the case of Monica Goodling, the Dems basically gave Monica a get out of jail card for nothing in exchange. Until I see that Crazy Pete Hoekstra’s heart is in the right place on this issue (which would, frankly, astound me), then I’d suggest we want to be very careful before we give Rodriguez something for nothing.

Marty Lederman points out that today’s NYT story clarifies one of the issues I’ve been trying to pinpoint on timing.

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports tomorrow, the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes — which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission sought "documents," "reports" and "information" related to the interrogations from the CIA — but "staff members never specifically asked for interrogation videos."

[snip]

Here’s the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson.

Then, as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain).

This tactic may be familiar to you from your youth. I know when I was four or five, I used to parse parental requests very narrowly so as to rationalize behavior I knew to be wrong. By the time I tried it in Middle School, though, it was no longer considered a valid dodge and I got busted by teachers and school administrators (though it still worked to legalize gum chewing in Algebra class). But I guess those rules are different for the Bush Administration when they’re trying to hide their torturous ways.

If Marty is correct that the CIA held onto the tapes until the 9/11 Commission finished and then found a period to destroy them (apparently in the time period between when Leonie Brinkema asked if there were tapes and they said no), then it may explain why the public reports on when the White House weighed in on matters are so dodgy. The NYT claims that Addington, Gonzales, and Bellinger were involved in 2003. But the memo documenting their involvement (and, at least Gonzales’ and Bellinger’s opposition to the destruction of the tapes) dates to 2004. I’m guessing, from this general dodginess, that we’ll find some members of this White House crowd all of a sudden expressing robust support for destroying the terror tapes at a time when it became legally comfortable to do so.

Top of the morning to one and all. As Marcy and family hit the road on their much delayed Christmas expedition, it occurs to me that it is time to grease the wheels of justice and get them rolling down the road of accountability. EW and Mad Dog are right about the implications of the new AP article. The collective insight and wisdom of the community are doing a wonderful job of dissecting the situation. I would like to highlight a couple of the angles that have been raised, and ask that you consider them, and the torture tape situation as a whole, in a broader context.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?
….
No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

These are not mere "administration officials"; with the exception of Cheney and Bush, they are as high as you go. Negroponte is DNI and Addington, despite his putative position as Cheney’s counsel/chief of staff, is the legal heart and soul of the Bush Administration. Toss in Gonzales, Miers and Bellinger, and there is simply no viable way to argue that "the White House", did not know about, and was not involved in, the intentional spoiling and destruction of material evidence; which, of course, means direct obstruction of justice.

“CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be “cautious” about destroying the tapes, according to sources familiar with his classified testimony.”

To me, that sounds like they were briefed and urged the agency to be careful about destroying the tapes. In other words, destroy them, but be really careful how you do it. JMHO

LS’s take here is just about right I should think. Ralphbon’s response is dead on the money too.

For those who didn’t see it, ther (almost) consensus from the panel was:
1) that there was no way Mukasey could avoid conflict of interest because he had signed the material witness warrant for Jose Padilla that was based, in part, on information gained during interrogations that were depicted on the missing tapes;
2) a special prosecutor is needed to replace Mukasey who should recuse himslef;
3) as long as Congress doesn’t immunize anybody, there is no reason for Congress to wait on its own investigation;
4) CIA investigating itself is just batshit crazy

The Regan Admin guy thought that Congress should wait a couple weeks to give Mukasey a chance to do the right thing and recuse himself, because if they acted swiftly it would embarras Mukasey and imply that DOJ is still broken. (he didn’t say that exactly, but it’s what he meant)

Yee haw! Thank you LHP and the committee!

Ok, those are just a few of the points that have been made, and there are many more implications too. Here is the broader context I think it is time to return to. Impeachment. There is no question, at least in my view, that Mukasey for his own personal involvement, and the DOJ as an office for both it’s conduct and the roles played by senior officials, have severe and disqualifying conflicts of interest. The talk of a special prosecutor is warranted, but shortsided and inefficient; and this country simply cannot abide more inefficiency. There is no question but that a special prosecutor should be appointed, but it is time for more. It is time for impeachment.

I am going to come back to this again today. I am also working on a post describing some of the parameters on conflict of interest concerns for prosecutors and prosecuting agencies to give you all a little more information on the standards and concerns behind this element of the discussion. For now though, I have an emergency requiring me to go down to IA court and spring a poor soul suffering from a bum rap (aren’t they all?). To the extent EW is not around for the remainder of the holidays (and she does deserve some peace and good cheer I might add), I will be around. I know everybody has a lot going on, but we are running out of viable opportunities to bring about the accountability that simply must be made if we are to put this country, and it’s Constitution, back on the road to stability. Please chip in and keep working on this. Keep working through the implications of torturegate (sorry about the -gate; I am in a hurry) and the surrounding facts, as well as how we can leverage this straw to break the camel’s back. I will be back in a couple of hours. P.S. I will get a trash talk thread up a little later as well because, well, thats what we do!

MadDog is right. This AP article provides a slew of interesting details on the torture tapes, including a list of Administration lawyers who objected to the destruction of the tapes. The article adds Alberto Gonzales and John Bellinger to the list of White House lawyers who–along with Harriet Miers–objected to the destruction of the tapes.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?

But there are a few more details I’d like to focus on. First, the AP offers a list of who Reyes plans to invite to testify to HPSCI, and it includes the CIA lawyers who wrote the opinion used–however fraudulently–to justify the destruction of the tapes.

Reyes also wants the CIA to make available CIA attorneys Steve Hermes, Robert Eatinger, Elizabeth Vogt and John McPherson to testify before the committee. Former CIA directors Porter Goss and George Tenet, former deputy director of operations James L. Pavitt and former general counsel Scott Muller are also on the list.

No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

For now, though, I’d like to return to the issue of timing, because it looks like somebody is fudging the true nature of the discussion by playing with the dates of discussions on the destruction of the tapes. John Bellinger is out there saying that in 2003, at least, the White House "consensus" objected to the tapes’ destruction.

Another of the administration attorneys, John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers came to a consensus that the tapes should not be destroyed, said a senior official familiar with Bellinger’s account of the 2003 White House discussion. Bellinger could not be reached for comment.

But Scott Muller, then CIA Counsel, says he didn’t consult with the White House in 2003–the CIA decided what they would do within the agency.

Muller did not seek White House input in 2003 because he believed the issue had been decided within the agency, the officials said.

This is pretty odd, considering that 1) the CIA claims to have briefed Congress on the tapes in 2003, and 2) NYT says they White House was involved in the discussion in 2003.

But then there’s this briefing in 2004–of which there is a paper record.

Among the documents the House Intelligence Committee could see is a May 2004 memo Muller wrote recording details of a meeting with White House officials that occurred as the Bush administration was scrambling to deal with the unfolding Abu Ghraib prison abuse scandal. According to these officials, the White House raised the issue in that meeting and recommended the tapes be retained intact.

This appears to be the same briefing that Michael Hayden already discussed with the SSCI.

CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be "cautious" about destroying the tapes, according to sources familiar with his classified testimony.

The three White House officials present at the briefing were David S. Addington, then Vice President Cheney’s chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden’s closed-door testimony before the Senate intelligence committee.

So this suggests the Administration, in a panic after the Abu Ghraib images came out on April 28, revisited the question of the torture tapes. But that’s a full nineteen months before the tapes were destroyed. What happened in between those two dates?

Note: I’m finally going on my delayed roadtrip to the East Coast. Will be driving most of the day, so I’m leaving you in the very capable hands of bmaz.

The NYT’s article has one more detail of note–again, reporting something that is intuitive, but not something that had been confirmed before, AFAIK. The torture tapes were stored in the country–singular–where the interrogations of Abu Zubaydah and al-Nashiri took place.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

Which raises some really interesting questions. Abu Zubaydah has been widely reported to have been taken from Pakistan to Thailand to be interrogated. Yet al-Nashiri’s trajectory has been less clear. He was reported to have been detained in the United Arab Emirates but it has never been clear where he was taken after he was captured (though I’ve seen unreliable sources say al-Nashiri was taken to Jordan).

But according to the NYT, al-Nashiri was apparently interrogated in the same country as Abu Zubaydah. So, presumably, Thailand, unless Abu Zubaydah was moved.

Though there is a distinct possibility that Abu Zubaydah was moved. From James Risen’s State of War:

The CIA assigned a group of agency officials to try to find alternative prison sites in countries scattered around the world. They were studying, said one CIA source, "how to make people disappear."

There were a number of third world countries, with dubious human rights records, willing to play host. One African country offered the CIA the use of an island in the middle of a large lake, according to CIA sources, and other nations were equally accommodating. Eventually, several CIA prisons were secretly established, including at least two major ones, code-named Bright Lights and Salt Pit. A small group of officials within the CIA’s Counterterrorist Center was put in charge of supporting the prisons and managing the interrogations.

[snip]

Bright Light is one of the prisons where top al Qaeda leaders–including Abu Zubaydah and Khalid Sheikh Mohammed, the cenral planner of the September 11 attacks–have been held. Bright Light’s location is secret, and it has been used for only a handful of the most important al Qaeda detainees. (30)

This passage follows Risen’s reporting that Abu Zubaydah was moved to Thailand not long after his capture. Which suggests, as far as Risen knows, Bright Light may not be in Thailand. And therefore, the country where Abu Zubaydah and al-Nishiri were tortured (and where their torture tapes were stored for three years) may not be Thailand.

That’s not much to go on. But I find this news particularly interesting considering the news that,

… the CIA came into possession of the three recordings [revealed to Leonie Brinkema in October] under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a videotape of the interrogation of [redacted]

The whole discussion of the destroyed torture tapes appears to be connected to the discovery, three months ago, of these other torture tapes, which were not destroyed. So it might suggest that the "separate national security matters" might have something to do with the location at which the torture tapes had been stored.

As Scarecrow pointed out in the last thread, the White House has done something colossally stupid: they’ve objected to the sub-heading of the NYT’s story revealing the involvement of David Addington and Alberto Gonzales (among others) in the destruction of the terror tapes.

The White House on Wednesday took the rare step of publicly asking The New York Times to change the sub-headline of a story on the destruction of CIA tapes showing the interrogations of suspected terrorists.

At issue is the story’s sub-headline that stated: “White House Role Was Wider Than It Said.” The White House called this sub-headline inaccurate and demanded that it be corrected.

[snip]

The White House argues that the newspaper article implies that “there is an effort to mislead in this matter,” adding that such a conclusion is “pernicious and troubling.”

They appear to be making a fairly narrow objection. Since they have not publicly, officially, responded to the news that someone destroyed the terror tapes, they can’t be described to have "said" anything. Never mind that someone has been shopping the cover story that only Harriet Miers was involved in the deliberations on the tapes.

And, as we might expect from the Bill Keller- and Pinch Sulzberger-led NYT, they have obliged with the White House’s request and changed the entire title to: "Bush Lawyers Discussed Fate of C.I.A.Tapes." Given that the point of the sub-headline was that the story had been floated, by someone, that Harriet was the only one involved in the terror tape deliberations, I think the more appropriate response would have been to demand that the source for those original allegations either publicly retract them, or consider his source confidentiality sacrificed. Because, as it is, the NYT’s change of headlines coddles the people who have been pitching the cover story about Harriet.

But I’m also interested in the White House’s ham-handed response to this. The last time they handled a public allegation this badly was, oh, around July 8, 2003, when on Dick Cheney’s apparent order, Scooter Libby outed a CIA spy to (the NYT again!) Judy Miller. Thus far, they haven’t tried to out any of the parties involved–at least as far as we know. But as with Joe Wilson’s allegations, they are responding in such a panicked mode that the most logical conclusion is that they are, truly, panicked by the possibility that they will have to answer for the destruction of the torture tapes.

Mr. Mukasey–can we return to the discussion of a Special Proescutor for this issue?

Update: Oh, this is rich. Here’s the White House statement:

The New York Times today implies that the White House has been misleading in publicly acknowledging or discussing details related to the CIA’s decision to destroy interrogation tapes.

The sub-headline of the story inaccurately says that the "White House Role Was Wider Than It Said", and the story states that "…the involvement of White House officials in the discussions before the destruction of the tapes…was more extensive than Bush administration officials have acknowledged."

Under direction from the White House General Counsel while the Department of Justice and the CIA Inspector General conduct a preliminary inquiry, we have not publicly commented on facts relating to this issue, except to note President Bush’s immediate reaction upon being briefed on the matter. Furthermore, we have not described – neither to highlight, nor to minimize — the role or deliberations of White House officials in this matter.

The New York Times’ inference that there is an effort to mislead in this matter is pernicious and troubling, and we are formally requesting that NYT correct the sub-headline of this story.

It will not be surprising that this matter will be reported with a reliance on un-named sources and individuals lacking a full availability of the facts — and, as the New York Times story itself acknowledges, some of these sources will have wildly conflicting accounts of the facts. We will instead focus our efforts on supporting the preliminary inquiry underway, where facts can be gathered without bias or influence and later disseminated in an appropriate fashion.

We will continue to decline to comment on this issue, and in response to misleading press reports. [my emphasis]

First, in response to "misleading press reports," you’re going to do what? Are you going to finish that sentence? Did someone forget to have this reviewed by someone smarter than Dana "Pig Missile" Perino?

And where does this Administration get off, after leaking Valerie Wilson’s cover as an un-named source, getting all skittish about the use of un-named sources? Not to mention the same Administration that brought us to war by laundering classified information through un-named sources. 

Apparently, I’m not the only one who noticed that, since the time when Henry Waxman first asked Michael Mukasey to hand over the White House-related materials from the CIA Leak Case investigation, he has proven to mighty responsive to requests from Congress when it involves covering up for the White House. Compare these two response times to requests from Congress:

Torture Tapes: 6 Days Response

December 8: Congress begins to call for its own investigation of the destruction of the torture tapes

December 14: Mukasey sends a letter telling Congress to butt out

CIA Leak Investigation: 15 days and counting

December 3: Waxman requests White House investigation materials from Mukasey

December 18: Waxman asks again

Given the disparity in time–and the apparent logic that the disparity seems to stifle oversight in both cases–I can see why Waxman is getting impatient. He sets up his very own confrontation with Mukasey, too, giving him a deadline of January 3:

Thus, I request that you provide the Committee by January 3,2008, with the documents requested in the Committee’s July 16 letter
to Mr. Fitzgerald, including the reports of interviews with President Bush, Vice President Cheney, and other White House officials.

And if a deadline isn’t enough, Waxman throws Mukasey’s logic back at him.

You resisted providing information to the committees because of your concern that providing information could undermine the Justice Department’s on-going investigation. In the Plame matter, there is no pending Justice Department investigation and no pending Justice Department litigation. Whatever the merits of the position you are taking in the CIA tapes inquiry, those considerations do not apply here.

I’m not holding my breath. But seeing Dick and Bush’s interview transcripts sure would be an interesting way to start the New Year.

For all his faults, Michael Isikoff is certainly a reliable journalist through whom people can launder leaks. Take his story (with Hosenball) today (h/t bmaz). Note the grammar of these first two paragraphs:

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they’ll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar’s office declined to comment, citing ongoing investigations. [my emphasis]

This article is framed in terms of what Congressional investigators want, not in terms of what the DOJ investigation is finding. Indeed, the leak about the Negroponte memo appears to come from two people involved in the investigation in some manner–whatever that investigation may be–who want to make sure news of this memo comes out and who seem to have little faith that news of Negroponte’s clear instructions to Goss will come out otherwise.

Also, note the curious no comment in this paragraph. "Spokespeople for the CIA and the intel czar’s office." You might assume, forgetting the last year of jostling within the Bush Administration, that it means that Isikoff called Negroponte’s office and got a no comment. But while Negroponte was "intel czar" when he wrote this memo, he’s not now; he’s at State running things for Condi. So unless Isikoff forgot all these details, I’d suggest this article only appears to record a "no comment" from Negroponte, and it certainly doesn’t exclude a pretty big comment from him. As in, "Mikey, I’d like you to write about this memo I wrote to Porter, because I’m afraid it’s getting buried in the DOJ investigation."

There’s another candidate to be one of Isikoff’s sources. The article also includes a clear signal from the masterful press manipulator, Bob Bennett, that he intends to advise his client John Jose Rodriguez to plead the Fifth.

Bennett told NEWSWEEK that his client had been "a dedicated and loy­al public servant for 31 years" and "has done nothing wrong." But he warned that Rodriguez may refuse to cooperate with investigators if he concludes that the probes are a "witch hunt." "I don’t want him to become a scapegoat."

In case you missed it, Bennett uses the same phrase Monica Goodling’s lawyer, John Dowd, used, "witch hunts," just before he snookered Congress into offering her immunity for a bunch of stuff that Congress already had evidence she was doing. As a reminder, Monica said almost nothing that incriminated Rove or Harriet and only sort of incriminated AGAG. But she managed to get herself immunity for "crossing the line" and politicizing DOJ’s hiring practices. Bennett’s use of precisely same language as Monica’s lawyer may be no accident.

Now, as I said, Bennett is clearly sending a message that Rodriguez will invoke the Fifth pretty readily. Is it possible, though, that Rodriguez knows about this memo, too? That is, is it possible that Bennett (who has been using leaks as a primary legal tool since at least Iran-Contra) is trying to trade the Negroponte memo–or at least a description of it–for immunity for his client?

Which is, frankly, about the only reason Michael Mukasey is correct in asking the House Intelligence Committee to back off. Crazy Pete Hoekstra is pretty close to Porter Goss, who appears to know more about the destruction of the torture tapes than he is letting on. And I could see Hoekstra doing the same favors–of impeding an investigation by manipulating the less than crafty chair of the House Intelligence Committee–that Dick Cheney did when he was in the same position during Iran-Contra. In other words, I’m not sure we can trust Crazy Pete to want to get to the bottom of this, and if HPSCI starts offering immunity as incautiously as they did with Monica, then I worry their investigation will stall any real investigation by DOJ–if it exists.

Update: Rodriguez’ first name corrected per rxbusa. 

Apparently, in addition to sending out a chain letter stating "butt out" to five or six members of Congress yesterday, DOJ also sent a letter to Judge Henry Kennedy, telling him not to get involved in the torture tape question (h/t Scarecrow).

The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes’ destruction.

In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.

Now, BushCo is apparently claiming–to Kennedy, at least–that the CIA was free to destroy the torture tapes since the tapes didn’t come from Gitmo.

Kennedy ordered the administration in June 2005 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

Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

Of course, such sophistry won’t work for Leonie Brinkema–whose questions about interrogation tapes would seem to have included the Abu Zubaydah tapes. Nor should they cover the FOIA court battle in Alvin Hellerstein’s court, which pertain to all detainees held abroad.

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

That is, either Kennedy’s order or Hellerstein’s order must have applied to those tapes when they were destroyed.

But apparently, DOJ is going to tell every other branch the same thing: interviewing people from the CIA might complicate the joint DOJ/CIA investigation of the torture tape destruction.

Funny. Less than a decade ago, I seem to remember, we had three full and independent branches of government.

Michael Mukasey has engaged in a remarkable bit of sophistry with his refusal to clue Congress in on the joint DOJ/CIA IG investigation into the destruction of the torture tapes. He explains his decision as an attempt to avoid "any perception that our law enforcement decisions are subject to political influence."

As to your remaining questions, the Department has a long-standing policy of declining to provide non-public information about pending matters. This policy is based in part on our interest in avoiding any perception that our law enforcement decisions are subject to political influence. Accordingly, I will not at this time provide further information in response to your letter, but appreciate the Committee’s interests in this matter. At my confirmation hearing, I testified that I would act independently, resist political pressure and ensure that politics plays no role in cases brought by the Department of Justice. Consistent with that testimony, the facts will be followed wherever they lead in this inquiry, and the relevant law applied.

Of course, the "political influence" Mukasey was asked to address during his nomination hearings was the kind exerted when a Senator or a Congresswoman called the Attorney General privately to demand that a USA either accelerate the prosecution of a political figure or be fired. In this matter, Mukasey has been asked to respond to what is an almost unparalleled degree of bipartisan support for an open inquiry into a matter that just stinks, already, of a cover-up. Leahy and Specter (and Reyes and Hoekstra and Durbin and Biden and more) called for a procedure that had oversight built in.

And Mukasey said no.

Now, part of me would like to give Mukasey the benefit of the doubt, to believe he’s just going to great lengths to avoid the kind of politicization that occurred under Gonzales. Except that his response to the House Intelligence Committee suggests he’s trying to avoid all oversight into this matter.

Additionally, lawmakers from both parties accused the Justice Department of obstructing a House Intelligence Committee inquiry by advising the CIA against cooperating with it.

"Earlier today, our staff was notified that the Department of Justice has advised CIA not cooperate with our investigation," House Intelligence Chairman Silvestre Reyes, D-Texas, and the panel’s top Republican, Rep. Pete Hoekstra of Michigan, said in a joint statement Friday.

"We are stunned that the Justice Department would move to block our investigation," Reyes and Hoekstra said. "Parallel investigations occur all of the time, and there is no basis upon which the Attorney General can stand in the way of our work. … It’s clear that there’s more to this story than we have been told, and it is unfortunate that we are being prevented from learning the facts. The executive branch can’t be trusted to oversee itself."

In a letter Thursday to CIA Director Michael Hayden, the House panel asked the CIA to hand over by Friday all documents and cables regarding the interrogation tapes and their destruction. But the Justice Department since has advised the CIA to refuse the request, a committee official said Friday on condition of anonymity because he is not authorized to speak for the committee.

However imperfectly they exercise oversight, it is the duty of the two intelligence committees to exercise such oversight. And preliminary accounts suggest that, while members of the Gang of Four didn’t object to the torture itself (with the exception of Jane Harman), they did object to the destruction of the torture tapes. Therefore, in addition to expressing contempt regarding multiple court orders, the destruction of the torture tapes also reflects contempt of Congress. Yet Mukasey wants to investigate it himself.

Now, Mukasey suggests there’s no whiff of impropriety in all this.

Finally, with regard to the suggestion that I appoint a special counsel, I am aware of no facts at present to suggest that Department attorneys cannot conduct this inquiry in an impartial manner. If I become aware of information that leads me to a different conclusion, I will act on it.

Yet this statement comes from the guy who signed the material witness warrant for Jose Padilla back in 2002, a warrant that almost certainly relied on the testimony of Abu Zubaydah. Thus, even Mukasey himself has improper conflicts, to say nothing of lawyers (Stephen Bradbury, I’m looking at you) who may have given opinions authorizing the destruction of the tapes.

John Dean seems to think the ACLU’s motion to hold the CIA in contempt may be the best means from discovering what really went on.

There are three court orders that may have been violated, but one in particular strikes me as a very serious problem for the CIA. Accordingly, we may well be in the unique situation in which a pending civil lawsuit might flush out some answers, and the federal judiciary might thus embarrass the other branches into actually taking meaningful action. I say "might" because the Bush Administration thinks nothing of stiffing federal court judges who seek information, and they probably figure they can tap-dance for the federal judiciary – along with all the other inquiries — until they are out of Washington on January 20, 2009.

Nevertheless, the situation in the United States District Court for the Southern District of New York, as a result of Freedom of Information Act requests by the American Civil Liberties Union, could well force the Bush Administration’s hand. An order holding the CIA in contempt of court might get the Administration’s attention.

Let’s hope so, because it looks increasingly unlikely that the Administration will be exposed to any more oversight under Mukasey than it was under Gonzales.