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. [0], 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 [1] makes this clear, as they praise Mukasey's choice and contrast it to what transpired in the Valerie Plame leak case.

In another Bush [2] administration case involving the CIA, Attorney General Ashcroft let his deputy, James Comey, appoint a Chicago prosecutor, Patrick Fitzgerald [3], 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 [4] and responding to allegations that the DOJ had become hopelessly politicized.

Furthermore, as The NY Times [5] 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. [6]

That may not matter, ultimately, if Morford is replaced by a newly nominated Deputy Attorney General. That nominee would be Mark Filip. BuzzFlash.com [6] took interest when the Chicago Tribune [7] 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, [8] 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 [9], Mr. Gonzales’s successor as counsel; David S. Addington [10], who was then counsel to Vice President Dick Cheney [11]; and John B. Bellinger III, then the legal adviser to the National Security Council [12]. 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 [13]? Patrick Leahy [14]? And John Roberts [15]?

Oh, forget about Roberts. We know where he stands, and it's not with legal accountability.

E [15]lizabeth de la Vega's Criminal Indictment of George W. Bush Et Al. -- A BuzzFlash Interview [15] (12/05/06)

A BUZZFLASH NEWS ANALYSIS

Technorati Tags: Analysis [21] Cover Up [22] Compromised [23] Durham [24] Mukasey [25] Torture [26] Tapes [27] Investigation [28] Filip [29] Scope [30] White House [31] Morford [32]