July 11, 2008 -- Attorney General Michael Mukasey has notified the House Judiciary Committee that he will not appoint special counsel to investigate the actions of CIA officers and agents who conducted detainee interrogations that included controversial methods such as waterboarding, which simulates drowning.
The controversial interrogation practices were authorized by lawyers from the Justice Department's Office of Legal Counsel.
In a letter to House Judiciary Chairman Rep. John Conyers, D-Mich., who had requested special counsel on the matter, Mukasey noted that "it would be unwise and unjust to expose to possible criminal penalties those who relied in good faith on those prior Justice Department opinions."
Referencing "The Terror Presidency," a book by Jack Goldsmith -- former head of the Office of Legal Counsel -- Mukasey said that the intelligence community was exposed to "cycles of timidity and aggression."
Mukasey also noted in the letter that opening a criminal investigation of the interrogators "would not only, in my judgment, be unjust but would also have potentially grave national security consequences. There could be no more certain way to usher in a new 'cycle of timidity' in the intelligence community than to tell the government's national security policymakers and lawyers that, if they support an aggressive counterterrorism policy based on their good-faith belief that such a policy is lawful, they may nevertheless one day be prosecuted for doing so."
The issue of the interrogation practices gained renewed attention when the CIA acknowledged in December that interrogation video tapes of two Al Qaeda detainees who had been waterboarded had been destroyed.
The video tapes have become a critical point in the appeal of convicted terrorist Zacarias Moussaoui. The main point of Moussaoui's appeal is that government officials withheld evidence from his defense, and that the CIA had submitted inaccurate declarations to the U.S. District Court that no recordings of detainee interrogations existed.
Shortly after being sworn in as attorney general, Mukasey appointed John Durham to serve as acting U.S. attorney in the investigation of the tapes' destruction.
A little noticed court filing in the litigation of the appeal of Moussaoui's conviction noted in court papers filed last week that Durham had recently uncovered new information in the case: "The Acting United States Attorney and his staff have very recently uncovered new information that may be relevant to the issues that were addressed ... and have been raised again on appeal."
The Justice Department has declined to elaborate on Durham's new information from that filing but it indicates the investigation into the tapes' destruction is ongoing.