Overshadowed by the Iowa Caucuses frenzy, the announcement hasn’t caused many ripples…yet. It is “the first indication that investigators have concluded on a preliminary basis that C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which recorded the interrogations in 2002 of two operatives with Al Qaeda and were destroyed in 2005… The tapes were never provided to the courts or to the Sept. 11 commission, which had requested all C.I.A. documents related to Qaeda prisoners. The question of whether to destroy the tapes was for nearly three years the subject of deliberations among lawyers at the highest levels of the Bush administration.”
The new Attorney General has assigned John H. Durham, a veteran federal prosecutor from Connecticut, to lead the criminal inquiry along with the FBI. Durham was not appointed as a special counsel, a step sought by some Congressional Democrats, and will have less authority than a special counsel. But the genie may be out of the bottle now. The chair and vice chair of the September 11 commission have said they believe the tapes were deliberately withheld from the commission. “Those who knew about those videotapes—and did not tell us about them—obstructed our investigation.”
LOOKING BACK: Remember the photos from Abu Ghraib, incarcerations at Guantanamo Bay and secret prisons with the denial of habeas corpus, and more recently the secret Department of Justice memos countenancing torture. Remember that President says, “This government does not torture people.” Remember that the Administration’s term for their techniques is “enhanced interrogation,” for which the translation in German is “Verschärfte Vernehmung,” the exact term used by the Gestapo to describe what came to be known as the “third degree.” You don’t remember? Check out the hyper-links. Mr. Mukasey and Mr. Durham have an opportunity to take the first steps back toward the rule of law. Watch them carefully.