Expert: Crime of Torture Could Only Have Been Ordered by the President

Courtesy David Edwards and Muriel Kane

It was announced on Wednesday that the Justice Department has opened an official criminal investigation into the destruction of CIA torture tapes. However, rather than appointing an outside special counsel, Attorney General Mukasey has assigned an assistant US Attorney from Connecticut to handle the proceedings.

At the same time, the chairman and co-chair of the 9/11 Commission are charging in a New York Times op-ed that the CIA obstructed their own investigations in 2003-04 by not disclosing the existence of the tapes.

Constitutional expert Jonathan Turley told Keith Olbermann that as many as six criminal offenses could be involved in the 9/11 Commission charge alone, including obstruction of Congress, obstruction of justice, perjury, and conspiracy.

However, Turley emphasized that the real crime under investigation is not merely obstruction, but the actual torture documented by the tapes. “It is still, even after the last seven year, a crime to torture suspects,” Turley commented.

Turley suggested that under those circumstances, the failure to appoint a special prosecutor was a serious problem, because “the investigation will essentially be the Justice Department investigating itself. … Picking some guy in Connecticut or Cincinnati or Delaware or any other state doesn’t make any difference. His boss is Michael Mukasey. And Michael Mukasey’s boss is the president of the United States. If torture occurred, he was the guy who ordered it.”

Turley suggested that there is a reluctance throughout official Washington, not “just Republicans,” to pry into an underlying crime which is potentially far more serious than the burglary which was the start of Watergate. When Olberman asked if the investigation “could still lead to criminal culpability for the president,” Turley replied, “Most certainly it can. That original crime could only have been ordered by the president and it leads directly to his office.”

Turley finally expressed a concern that the Justice Department might try to “narrow this, define it in a way to avoid torture.” He explained, “Nobody in this town wants to talk about it because they know that there’s a lot of people in the country that like the idea of torturing these people. And that’s just a painful fact. But it’s also a painful fact that it’s a crime. And when the president says that we got some useful evidence, I don’t know if that’s true or not, but it’s immaterial. Just because it had good results or good motivations, it remains a crime.”

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