From the AP:

A federal judge said Thursday that CIA interrogation videotapes may have been relevant to his court case, and he gave the Bush administration three weeks to explain why they were destroyed in 2005 and say whether other evidence was destroyed.

Several judges are considering wading into the dispute over the videos, but U.S. District Judge Richard W. Roberts was the first to order the administration to provide a written report on the matter. The decision is a legal setback for the Bush administration, which has urged courts not to get involved.

The AP also has a helpful rundown on where things stand with the other courts that have looked into the matter:

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From The New York Times:

Lawyers for Majid Khan, a detainee at Guantánamo Bay, Cuba, have challenged the Central Intelligence Agency’s assertion that videotaping of interrogations stopped in 2002, saying that Mr. Khan’s interrogations after that time were recorded on videotape.

This isn't the first time there's been a hint of this. As we noted here, another detainee has claimed to have seen cameras in the interrogation rooms, and prosecutors have indicated in a filing that there are two currently existing videotapes of interrogations.

Also, here's our rundown of Khan's case.

Just part of the Bush administration economic stimulus plan: big business for companies insuring federal workers. From The New York Times:

When Al Qaeda attacked the United States in 2001, Wright & Company was insuring about 17,000 federal employees against the legal hazards of their work. Today, that total has nearly doubled to 32,000, Wright executives say, spurred in part by a spate of lawsuits, investigations and criminal prosecutions related to mistreatment of detainees from Iraq to Guantánamo Bay, an immigration crackdown and other aftershocks of 9/11. The insurance is popular with F.B.I. agents, Secret Service officers, and Immigration and Customs Enforcement workers as well as C.I.A. officers.

“The things that help us are any negative events related to the federal government, and there have been plenty,” said Bryan B. Lewis, Wright’s president and chief executive, who holds a security clearance that allows him to discuss his clients’ secret business.

Yes, times are good.

One of the latest to draw on his policy is Jose Rodriguez, the former CIA official who ordered the destruction of the torture tapes. He's used it to pay for heavy-hitter Bob Bennett, the Times reports, though how long that's going to last him, nobody knows (Bennett charges up to $900 per hour). He's covered for up to $200,000 in fees to represent him against Congress' probe, and $100,000 in fees for the criminal probe.

There are good days in court, and there are bad days in court. From The New York Times:

A federal judge said Thursday that he was “disappointed” about how investigators from the Central Intelligence Agency handled videotapes documenting the harsh interrogation of Al Qaeda detainees, and that he was considering questioning agency officials who watched the tapes about why they made no record of them in their files.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

Actually things could have gone worse. The judge denied the ACLU's request to hold the CIA in contempt. But apparently he's not content to let the matter drop.

Not only did operations chief Jose Rodriguez order the CIA's torture tapes destroyed without authority from top CIA officials, but he then kept it quiet from Congress. That, at least, is the story that CIA's acting general counsel John Rizzo told the House intelligence committee yesterday, according to the AP.

Most of Rizzo's account doesn't really contradict what we know from prior media reports. From 2003 through 2005, White House and Justice Department lawyers (with a couple key exceptions) and top CIA officials all advised that the tapes should not be destroyed. But nobody gave an order to that effect. So when the issue arose again in November, 2005 after The Washington Post broke the CIA black sites story, Rodriguez asked again. Two CIA lawyers found that the agency had no obligation to preserve them.

But Rizzo, who's been acting general counsel since 2004, says that even after that, he advised against destroying them. And he told the committee that then-CIA Director Porter Goss "also recommended" the same. Rodriguez went ahead and ordered the tapes destroyed anyway.

Here's how "a congressional official," who's seen the some 300 pages of documentation that the CIA has so far turned over, described it to the AP:

"If you look at the documents, you get very close to a direct order (not to destroy the tapes) without it being, 'Jose, you're not going to do this,'" the official said....

The...official said the committee will try to determine whether any CIA officials suggested "with a wink and a nod" that the tapes should be destroyed, and whether Rodriguez was being forced to take the blame.

And remember that The Washington Post reported yesterday that "Rodriguez was neither penalized nor reprimanded, publicly or privately" after he ordered the tapes destroyed. Update: Now Rodriguez's lawyer is reiterating this -- and saying that Goss never objected before he ordered the tapes, either.

That's not all that Rizzo pinned on Rodriguez.

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We've heard CIA Director Michael Hayden's confusing and risible explanation for why the CIA's torture tapes were destroyed. And there have been a number of media accounts citing dozens of unanimous government officials that haven't managed to shed much light. But today's Washington Post provides about as clear of a narrative as we're likely to get on why the tapes were made, when they were made, and why they were destroyed.

Here's what they came up with: "the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee's death." CIA officials have also said that videotapes of the interrogations would have been very useful for reviewing what the detainees had said.

And here's why they were destroyed, according to the Post. The Post broke news of the CIA's black sites in November of 2005. That made CIA officials even more nervous that "the agency could be publicly shamed and that those involved in waterboarding and other extreme interrogation techniques would be hauled before a grand jury or a congressional inquiry." At the same time, the station chief in Bangkok, who'd had the tapes in a safe in the U.S. Embassy compound there for three years, was retiring and "wanted to resolve the matter before he left." So he sent a cable to CIA headquarters asking if he could destroy them.

The rest we know. Then-operations chief Jose Rodriguez checked with two CIA lawyers who said that the agency was not required to preserve them. Since no one in the administration had directly forbidden the destruction of the tapes, he went ahead and gave the station chief the go-ahead.

And no one seemed to be very upset after the deed was done: "Word of the resulting destruction, one former official said, was greeted by widespread relief among clandestine officers, and Rodriguez was neither penalized nor reprimanded, publicly or privately, by then-CIA Director Porter J. Goss, according to two officials briefed on exchanges between the two men."

The Post also has more details on the Justice Department and White House discussions about the tapes:

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

And can you tell who's missing in this tally?

Those known to have counseled against the tapes' destruction include John B. Bellinger III, while serving as the National Security Council's top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA's general counsel; and John D. Negroponte, while serving as director of national intelligence.

If you said David Addington, Dick Cheney's chief of staff, you were right. Alberto Gonzales is another notable exception. Although The New York Times has reported that Addington, who's done so much to shape the administration's torture policy, took part in discussions about the tapes, he somehow didn't make the list here. The Times also cited a "former senior intelligence official" as saying that "there had been “vigorous sentiment” among some top White House officials to destroy the tapes." But the official wouldn't specify who that was. I think we might have our winners.

House Judiciary Committee Chair John Conyers (D-MI) thinks it's nice that the Justice Department has launched a criminal investigation of the CIA's destruction of its torture tapes, but it's not good enough. John Durham may be a tough, unimpeachable prosecutor, but he'll still be reporting up the chain to Attorney General Michael Mukasey.

Arguing that the Department has a "clear conflict of interest" because "high Administration officials" are necessarily implicated -- they approved the interrogation methods documented on the tapes and were involved in the discussions about whether to destroy them -- Conyers wrote Mukasey today to formally request that he appoint a special counsel. 18 Democratic members of the committee also signed on. Conyers has consistently called for a special prosecutor to be appointed.

The letter is posted in full below. A judiciary subcommittee will be holding a hearing to hear from experts on the subject this Thursday.

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The House intelligence committee had a choice: Hear what the CIA official who actually ordered the destruction of the torture tapes has to say -- inevitably compromising the ongoing criminal investigation? Or kick the can down the road.

The House intelligence committee will deal with this later:

Jose A. Rodriguez Jr., the former Central Intelligence Agency official who ordered the destruction of interrogation videotapes in 2005, will not be required to appear on Wednesday at a closed Congressional hearing on the matter but may be called to testify later, an official briefed on the inquiry said Monday.

The House's probe goes on, though, even without its star witness. The CIA's general counsel John Rizzo will testify tomorrow, the Times reports.

With a full-blown criminal investigation in the works, Jose Rodriguez, the CIA official who ordered the destruction of the torture tapes, says, via his lawyer Bob Bennett, that he's not testifying about it to Congress without immunity. He'd been scheduled to speak to the House intelligence committee next week as part of their investigation.

If the committee did give him immunity, it could potentially compromise the criminal investigation. If they didn't, he'd probably spend most of his time pleading the Fifth. Bennett first signaled this course last month, when he warned that Rodriguez wouldn't cooperate with a "witch hunt."

The Washington Post adds that criminal investigators haven't given him access to records about the destruction and that "most defense attorneys would advise a client against testifying or cooperating with a congressional investigation without access to such documents."

One less thing for the administration to worry about. From the AP:

A federal judge refused on Wednesday to delve into the destruction of CIA interrogation videos, saying there was no evidence the Bush administration violated a court order and the Justice Department deserved time to conduct its own investigation.

Update: It looks like the long-held secrecy of the black sites and the existence of the video tapes may have saved the administration here. From Judge Henry Kennedy's decision (read it here):

The 2005 Order prohibits [the administration] from destroying evidence regarding any torture, mistreatment, or abuse of detainees that occurred at Guantánamo Bay. Petitioners do not assert that the destroyed tapes depict interrogations that occurred at Guantánamo Bay and respondents have represented to the court that the interrogations depicted on the tapes did not occur there. To the contrary, the videotapes were recorded in their entirety in 2002 before either of the suspected Al Quaeda operatives shown on the tapes had been at Guantánamo Bay.... Therefore, petitioners’ motion will be denied.

From Newsweek:

George Tenet, who was CIA director when the tapes were made, will be represented by former FBI general counsel Howard Shapiro. Roy Krieger, a Washington lawyer who has represented about 100 CIA employees, says that two agency officers have approached him about representation, though neither has retained him yet.

For the CIA spooks involved, cost is a serious issue. Krieger says legal expenses for each employee could reach "hundreds of thousands" of dollars; the CIA will not foot the bill. In anticipation of just such a scenario, however, the agency some years ago began encouraging its employees to purchase special liability-insurance policies from Wright & Co., a Virginia firm that specializes in coverage for government investigators. A Wright spokesman had no response to questions about whether claims have been filed for legal fees in connection with the tapes inquiry.

The CIA's initial defense for destroying the videotapes showing interrogations of Al Qaeda detainees was that they'd briefed members of Congress about their intention to do this long ago.

To which, Rep. Jane Harman (D-CA), the former chair of the House intelligence committee responded: yes, we were told, and I told them not to do it. She said that she'd made that explicit in a letter to the CIA's general counsel in February of 2003, but that the letter was classified. She asked the CIA to declassify it.

Well, the CIA declassified the letter and today she released it (I've posted it below in full). Here's the relevant excerpt:

You discussed [in a briefing the previous week] the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

The reply from the CIA's General Counsel Scott Muller later that month, also posted below, did not address this issue.

You can see a scan of Harman's letter here (pdf).

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The papers take a look at John Durham, the prosecutor Attorney General Michael Mukasey tapped to investigate whether anyone broke any laws by keeping secret and then destroying the CIA's torture tapes, and find that even if he doesn't have the same independence as Patrick Fitzgerald, he's made from the same stuff.

From The Los Angeles Times:

"Think of him as the second coming of Patrick Fitzgerald," said Jeffrey Meyer, a professor at Quinnipiac University law school in Hamden, Conn., who worked alongside Durham as a federal prosecutor for many years. "So far as I could tell, he does not have a political bone in his body. He is nothing but thorough and dogged in the way he pursues cases."

From The Washington Post:

Four friends said they could not recall him losing a case in more than 30 years as a prosecutor, almost all of it spent fighting organized crime and gang violence in Connecticut....

"He's Fitzgerald with a sense of humor," said Hugh O'Keefe, a Connecticut criminal defense lawyer who has known Durham for 20 years.

Congress and the Justice Department didn't play together very nice last year. And there may be more of that to come.

For the record, just because Michael Mukasey has ordered a criminal investigation into the CIA's torture tapes, lawmakers want everyone to know that Congress isn't backing down.

That's the word from Senate Intelligence Committee Chairman Jay Rockefeller (D-WV), who says in a statement:

"We... have an obligation to continue our own congressional investigation and that is exactly what we will do.

“Our negotiations with the CIA and DOJ over the scope of our investigation are ongoing. I fully expect their continued cooperation, including relevant testimony and documents, so that the Committee can thoroughly review and publicly report on all actions related to the destruction of the tapes.”

And House intel chairman Silvestre Reyes (D-TX), whose probe has been much more aggressive, says the same:

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A statement just out from House Judiciary Committee Chairman John Conyers (D-MI) hits on Mukasey's decision not to tap Durham as a special counsel:

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. Because of this action, the Congress and the American people will be denied – as they were in the Valerie Plame matter – any final report on the investigation.

Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations.

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the Administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.

Michael Mukasey's statement on opening a full-blown criminal investigation of the CIA tapes probe is below.

Interestingly, Durham has not been tapped as a special counsel (like Patrick Fitzgerald (pdf) was) -- rather, because the U.S. attorney from the Eastern District of Virginia recused his office from the probe, Durham will be serving as Acting United States Attorney for the Eastern District of Virginia.

Update: What this means, as Marty Lederman puts it, is that Durham is neither an "outside," nor "special," nor "independent" prosecutor. "Durham will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey."

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The man Michael Mukasey chose to lead the CIA tapes probe is John Durham. Who is John Durham? Well, the short answer is a 30-year veteran prosecutor with some serious experience with tough prosecutions.

We've posted his work experience below, as passed along by the U.S. attorney's office in Connecticut, where Durham serves as the deputy.

As the AP puts it, "Durham has a reputation as one of the nation's most relentless prosecutors. He served as an outside prosecutor overseeing an investigation into the FBI's use of mob informants in Boston and helped send several Connecticut public officials to prison."

Update: From The Washington Post:

Durham is well known in New England legal circles as a tough, publicity-averse prosecutor who has specialized in organized crime cases. Former attorney general Janet Reno named Durham as a special prosecutor to investigate allegations that FBI agents and police officers in Boston had ties to mafia informants. He is a registered Republican, according to Connecticut voter records.

The Boston probe led to the 2002 racketeering conviction of retired FBI agent John J. Connolly Jr., who was the handler for gangster James "Whitey" Bulger, a former FBI informant who is now a fugitive.

Durham's history is below.

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Breaking from the AP:

The Justice Department opened a criminal investigation into the destruction of CIA interrogation videotapes and Attorney General Michael B. Mukasey appointed an outside prosecutor to oversee the case....

"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.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.

Durham is the deputy U.S. attorney in Connecticut, where he worked with Kevin O'Connor, who's currently the acting #3 at the department. We'll have more on him in a second.

Update: The AP doesn't have this quite right. Durham is not an "outside counsel."

There really wasn't much doubt about what members of the 9/11 commission thought about the CIA's failure to tell them about the videotapes of agents interrogating Abu Zubaydah and Abd al Rahim al-Nashiri.

But in today's New York Times, the commission's chairman, former New Jersey governor Thomas Kean (R), and its vice chairman, Lee Hamilton (D), make the bottom line clear. The op-ed runs under the title, "Stonewalled by the C.I.A."

The commission never explicitly asked for videotapes of interrogations of Al Qaeda detainees, they write, but "the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot" was crystal clear. When they felt unsatisfied with the information the CIA had provided about the interrogations of Zubaydah and others, the commission even sought to interview the detainees directly. After extensive back and forth, the administration denied that request -- but didn't mention that videotapes of the interrogations existed.

One of the things the Justice Department inquiry of the tapes' destruction will (or should) be looking at is whether the failure to produce the tapes to the 9/11 commission constitutes a crime. Kean and Hamilton, for their part, make a point of using the "O" word in their conclusion:

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

Why did the CIA choose to videotape its interrogations of the first Al Qaeda detainees?

The short answer provided by The New York Times piece this weekend, based on "interviews with two dozen current and former officials," proves misleading. And there are a host of competing theories to sort through. But in the end, it´s really not so complicated.

The story's straightforward headline, "Tapes by C.I.A. Lived and Died to Save Image," is based on the idea that the videotaping was "prompted in part by worry about how [the agency´s interrogation methods] might be perceived — by Congress, by prosecutors, by the American public and by Muslims worldwide," as the Times puts it. According to this theory, the CIA was trying to cover its ass by showing that it was keeping to authorized techniques. That same fear was behind the drive to destroy the tapes.

But the bulk of the reporting of the piece tends towards a very different interpretation. There were plenty of reasons to want to videotape the interrogations, and one simple reason to want them destroyed. Buzzy Krongard (yep, that Buzzy) -- one of the very few CIA officials who spoke to the Times on the record -- puts it best:

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It was one of the high points of recent CIA history, and that's saying a lot: CIA Director Mike Hayden ordered an investigation of CIA Inspector General John Helgerson. On top of ordering a scathing review of the CIA's pre-9/11 counterterrorism performance, Helgerson -- legally tasked with being an independent internal watchdog -- stuck his nose into the agency's detentions, interrogations and renditions programs, angering many inside the agency. Hayden struck back.

Now the probe is over, the Los Angeles Times' Greg Miller reported yesterday, and the IG's relationship to the agency has changed in some nebulous fashion. The CIA isn't releasing what's changed, exactly, but Miller reports that agency officials -- including, presumably, those under investigation -- now have "a greater ability to defend their actions and present their views."

The investigation was criticized on Capitol Hill and by former agency officials as an attack on the independence of the inspector general.

The senior intelligence official disagreed with that characterization: "We have no interest in trampling upon the independence of the I.G. It's not our interest, not our goal." ...

"This has always been a straightforward management review," said CIA spokesman Mark Mansfield. "The aim has been to make the office even more efficient and effective as well as making its procedures more transparent and understandable to employees."

And what a coincidence! The changes come just in time for Helgerson's joint probe with the Justice Department into the 2005 destruction of the CIA's interrogation videotapes!

Just out from the AP:

A federal judge appeared reluctant Friday to investigate the destruction of CIA interrogation videotapes while the Justice Department is conducting its own inquiry.

U.S. District Judge Henry H. Kennedy is considering whether to delve into the matter and, if so, how deeply. The Bush administration is urging him to back off while it investigates.

"Why should the court not permit the Department of Justice to do just that?" Kennedy asked at a court hearing.

The hearing marked the first time that administration lawyers spoke in public and under oath about the matter since the CIA disclosed this month it destroyed the tapes of officers using tough interrogation methods while questioning two al-Qaida suspects.

Now here's an interesting development in the CIA tapes case. Yesterday, the James Madison Project -- a good-government, anti-secrecy non-profit -- filed suit in federal court to get the CIA to disclose documents related to the 2005 destruction of the interrogation videotapes. Apparently the JMP recently filed a Freedom of Information Act request for the documents, and the lawsuit is to expedite the processing of that FOIA.

Here's a statement from JMP's executive director:

The public deserves to know the truth underlying the CIA’s questionable conduct in destroying the interrogation videotapes of terrorist suspects, and that those responsible are held accountable for any improper or unlawful activities.

Par for the course from a goo-goo lawyer, right? Well, here's the interesting thing. JMP's executive director is Mark Zaid. Zaid is the attorney for John Kiriakou, who led the 2002 interrogation of Abu Zubaydah, and who also told ABC News that Abu Zubaydah was tortured by his interrogators. Kiriakou is currently under criminal investigation by the Justice Department to determine whether he illegally disclosed classified information in his ABC News interview. So if the CIA ends up executing the FOIA in any expeditious way, it might be handing those documents over to the lawyer for a man it sought to have prosecuted -- though, if they suggest illegality in the actual interrogation, they might prove problematic down the road for Kiriakou.

However, Zaid tells us, the lawsuit has nothing to do with his representation of Kiriakou. He filed the FOIA before Kiriakou retained him, he says.