Attorney General Michael Mukasey today announced that a preliminary probe into the 2005 destruction of CIA videotapes has become a criminal investigation.
“Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, 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," Mukasey said in a released statement.
Mukasey noted that the Eastern District of Virginia has jurisdiction in the matter, but because U.S. Attorney Chuck Rosenberg has recused himself, a federal prosecutor from Connecticut will oversee the FBI’s investigation instead.
In his statement, Mukasey provided no explanation for the recusal. But Rosenberg last October wrote a letter to U.S. District Judge Leonie Brinkema related to the Zacarias Moussaoui case. In that letter, he stated that the CIA had admitted making "factual errors" when it had earlier said no videotapes existed of interrogations of terrorism suspects.
The New York Times reported last month that the CIA destroyed two videotapes in 2005 because officers were worried the tapes could expose agents to legal risks and retribution. At the time, Congress, a federal judge, and the 9/11 Commission were all requesting such material.
In his statement, Mukasey also said, "A preliminary inquiry is a procedure the Department of Justice uses regularly to gather the initial facts needed to determine whether there is sufficient predication to warrant a criminal investigation of a potential felony or misdemeanor violation. The opening of an investigation does not mean that criminal charges will necessarily follow.”
John Durham, the first assistant U.S. attorney for Connecticut, will serve as acting U.S. attorney for the Eastern District of Virginia for purposes of the tapes investigation. Mukasey described Durham as “a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past.” Durham will report to the deputy attorney general, “as do all United States Attorneys in the ordinary course.”
According to Mukasey, the Justice Department notified CIA Director Michael Hayden and the leadership of the congressional Judiciary and Intelligence Committees of this development earlier today.