Mukasey Seeks to Protect White House and DOJ With Durham "CIA Torture
Tape" Appointment
Submitted by christine on Thu, 01/03/2008 - 1:49pm. Analysis
What's Wrong With Mukasey's Appointment of Durham
A BUZZFLASH NEWS ANALYSIS
by Christine Bowman
In naming John Durham yesterday to lead an Executive Branch investigation
of the destruction of torture tapes -- tapes destroyed at a time when the
9/11 Commission was seeking full disclosure and Congress and the courts
were debating the limits of torture's legality -- Attorney General Mukasey
has guaranteed both that the investigation will be narrow in focus (as in
you can bet it will stay within the CIA and at lower levels to boot), and
far from independent of the compromised Department of Justice senior
staff, including AG Mukasey. The scapegoating of lower level CIA officers
seems a likelihood.
We're political commentators, not lawyers, at BuzzFlash, so we asked a
former Assistant US Attorney for her expert analysis. Elizabeth de la
Vega, a former US prosecutor and author of United States v. George W. Bush
et al., stressed that what matters most is not Durham's record but that he
reports to Mukasey and must play by the internal DOJ guidelines. As De la
Vega writes:
Based on his track record, John Durham appears to be an exemplary,
fearless prosecutor. Unfortunately, however, he will not have free rein in
this case. News reports have termed him an "outside prosecutor" which is
accurate only in the limited sense that Durham is from outside the Eastern
District of Virginia, which would normally have jurisdiction to
investigate matters involving the CIA. His appointment, as Mukasey
mentioned, would obviate the problems of conflicts that might arise from
attorneys in the Eastern District having undue allegiances to CIA agents
or the CIA in general.
But an appearance of conflict between AUSAs in the Eastern District
and the CIA is not the major difficulty here. The major problem -- a huge
apparent and possibly actual conflict -- is that information reported thus
far about the destruction of the tapes implicates officials at the highest
levels of the administration, possibly all the way up to Bush and Cheney.
The administration cannot investigate itself and that is precisely what
will necessarily be happening here.
Unlike Patrick Fitzgerald, whose appointment placed him in the shoes
of the Attorney General for purposes of the CIA leak investigation, Durham
will have no independent powers whatsoever. There is, legally-speaking, no
such thing as an "outside prosecutor." Durham is simply a prosecutor from
outside the Eastern District of Virginia, but he will have to follow all
of the applicable Department of Justice rules regarding approvals.
Mukasey himself stated that Durham will be reporting directly to the
Deputy Attorney General. Because this is a case involving national
security, that means, according to the U.S. Attorney's Manual, that Durham
will have to receive prior express approval from the Deputy Attorney
General -- who will likely either be the currently acting DAG Craig
Morford or the nominee Mark Filip, both of whom are the most loyal of
loyal "Bushies" -- for doing just about anything in the case: seeking a
search warrant, filing a complaint, immunizing a witness, seeking an
indictment, filing any significant court documents and, given the
significance of the case, he will be advising the DAG about every minute
development. Even more important, whomever Durham reports to will, in
turn, be reporting directly to Mukasey, so Durham will effectively be
reporting directly to Mukasey.
The way the appointment is set up, in other words, John Adams could
have been appointed to handle the prosecution and he would still be on a
tight leash -- for all practical purposes, a very inside prosecutor. Any
suggestion by Mukasey and the administration that Durham's appointment
somehow legitimizes this investigation is just another act in furtherance
of their multiple efforts to defraud the public and Congress in so many
arenas, from the false pretext for war to the cover up of the Valerie
Plame Wilson outing to the Illegal spying. I hope Congress will not be
fooled, or intimidated, yet again."
Thank you, former DOJ prosecutor de la Vega. Indeed, it's not that John
Durham lacks credentials. Though a registered Republican (according to
NPR), he has a strong record of independence and success as a prosecutor.
It is AG Mukasey's placement of the investigation and curtailment of the
scope of the investigation that guarantees failure. And it's Mukasey's
choice to use the compromised, scandal-ridden US attorney structure to
pursue a case with such far-reaching and high-reaching potential.
An editorial in the conservative NY Sun makes this clear, as they praise
Mukasey's choice and contrast it to what transpired in the Valerie Plame
leak case.
In another Bush administration case involving the CIA, Attorney
General Ashcroft let his deputy, James Comey, appoint a Chicago
prosecutor, Patrick Fitzgerald, as "Special Counsel independent of the
supervision or control of any officer of the Department," as Mr. Comey's
letter to Mr. Fitzgerald put it. The letter delegated to Mr. Fitzgerald
"all the authority of the attorney general."
The Comey-Ashcroft default created a runaway train that the president
ultimately had to stop, using his power of clemency to stop I. Lewis
"Scooter" Libby from being sent to prison in connection with the
disclosure of the identity of a CIA official, Valerie Plame Wilson. ...
Unlike Mr. Fitzgerald, who answered essentially to no one ... John
Durham, "will report to the Deputy Attorney General, as do all United
States Attorneys in the ordinary course," Mr. Mukasey said yesterday. The
deputy attorney general reports to Mr. Mukasey, who reports to President
Bush.
Durham will be filling in for US Attorney Chuck Rosenberg, who asked to be
recused. Few have noted that Rosenberg was tapped to serve as Alberto
Gonzales' chief of staff when Gonzales was embroiled in the US Attorney
firing scandal and responding to allegations that the DOJ had become
hopelessly politicized.
Furthermore, as The NY Times points out: "Mr. Durham will report to the
deputy attorney general, an office being held temporarily by Craig S.
Morford. ..." So, actually, Acting US Attorney Durham will report to
Acting Deputy Attorney General Craig Morford. Morford, by the way, is
identified as a partisan "loyal Bushie" in his bio at Sourcewatch.
That may not matter, ultimately, if Morford is replaced by a newly
nominated Deputy Attorney General. That nominee would be Mark Filip.
BuzzFlash.com took interest when the Chicago Tribune reported in its
November 16, 2007 article on Filip's nomination that:
After clerking for [Antonin] Scalia, [Mark] Filip returned to Chicago
rather than stay in Washington and pursue the kind of career track that
traditionally leads to a choice government appointment. He did, however,
work as a volunteer Republican vote counter in Florida during the 2000
election recount.
[BuzzFlash's emphasis]
And most analysts indicate now that Filip can expect Senate confirmation
very soon.
So much for "independence." Moving on, now, to "scope."
"Justice Department officials declined to specify what crimes might be
under investigation ..." writes The NY Times, but all indicators are that
the focus is inside the CIA. This is a revealing excerpt from Mukasey's
statement: "An investigation of this kind, relating to the CIA, would
ordinarily be conducted under the supervision of the United States
Attorney for the Eastern District of Virginia, the District in which the
CIA headquarters are located." [again, BuzzFlash's emphasis]
But The NY Times also says:
Among White House lawyers who took part in discussions between 2003
and 2005 about whether to destroy the tapes were Mr. Gonzales, when he was
White House counsel; Harriet E. Miers, Mr. Gonzales’s successor as
counsel; David S. Addington, who was then counsel to Vice President *****
Cheney; and John B. Bellinger III, then the legal adviser to the National
Security Council. It is unclear whether anyone outside the C.I.A. endorsed
destroying the tapes.
So, Mukasey has decided only to investigate the CIA, even though all the
top Bush administration legal authorities weighed in on the question. And
Mukasey will use the far from independent US attorneys structure to
investigate the CIA. This is his choice, despite the obvious and deep
interest in torture issues expressed by the Congress and by a number of
justices, including those adjudicating cases at the Supreme Court.
It seems to us at BuzzFlash that only the Congress and the Supreme Court
can outrank a self-policed Executive Branch that chooses scapegoating over
investigation, and politicization over independence. Isn't the ball in
your court, John Conyers? Patrick Leahy? And John Roberts?
Oh, forget about Roberts. We know where he stands, and it's not with legal
accountability.
http://www.buzzflash.com/articles/analysis/244
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the same person." -- corrupt prison clerk heishman lying as "Osprey"
in an effort to cover-up his earlier lie that i was not an author
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