Is administration covering up torture?

OPINION:

John Durham, the federal prosecutor appointed by Attorney General Michael Mukasey to conduct a criminal investigation of the destroyed “coercive interrogation” videos by the CIA of two captured terrorists, is widely and justly respected for his 25-year service in the Justice Department. But, since he will report to a deputy attorney general who then reports to Mr. Mukasey, Mr. Durham will not be fully autonomous, with powers equivalent to those of an attorney general.

Accordingly, when Mr. Durham seeks the power to go as high as necessary to find the ultimate source for the CIA to engage in torture (as waterboarding is defined in our law), the result will be as ACLU legal counsel Christopher Anders told Reuters (Jan. 6) that “Mukasey has kept Durham on a leash.”

With approval of “the leash,” The Wall Street Journal, in an editorial (Jan. 4) notes that, “Mr. Durham will at least have some political supervision as he assesses whether genuine crimes were committed.” But this investigation’s mission is to dig into the thicket of Justice Department political involvement in the origins of these crimes and name those accountable without regard to political considerations.

Unintentionally, a New York Sun editorial (Jan. 3) opposing the appointment of a fully independent counsel reveals why Mr. Mukasey acted to keep the investigation well within the Justice Department family. Mr. Durham, says the Sun, ” ’will report to the deputy attorney general, as do all United States attorneys in the ordinary course.’ The deputy attorney general reports to Mr. Mukasey, who reports to President Bush.” But it was Mr. Bush who, on Feb. 7, 2002, issued an Executive Order that Common Article 3 of the Geneva Conventions, signed by this country and prohibiting “cruel treatment and torture” of detainees, does not apply to captured (or suspected) members of al Qaeda. Moreover, on July 20, in another executive order, he authorized the continuance of the CIA program of secret detention and the coercive interrogation included in the destroyed CIA videotapes.

Therefore, shouldn’t a thorough, independent investigation of those tapes lead to a subpoena of the president to testify on his justification in law for those executive orders? Would Mr. Mukasey allow Mr. Durham to send that subpoena? The attorney general already supports the president’s special wartime authority in certain national security matters: Mr. Mukasey told an American Bar Association panel in December he agrees with Mr. Bush that the telecommunications companies that cooperated with the National Security Agency’s lawless, warrantless spying on our phone calls should be exempted from prosecution. It was the president who revised our rule of law to, at first, secretly give the NSA the power to illegally subvert citizens’ privacy in this way.

But there is a way to provide credibility to a criminal investigation of the destroyed CIA tapes in full context. Constitutional lawyer Bruce Fein, who served in the Reagan Justice Department and is chairman of the American Freedom Agenda, tells me: “The flaw in the current arrangements [by which Mr. Durham will conduct the investigation] is that the attorney general is still entrusted with determining whether to invoke state secrets or executive privilege to withhold critical evidence from the prosecutor. It would be like President Nixon determining what evidence to give Archibald Cox or Leon Jaworski investigating Watergate.

“That is why,” Mr. Fein continues, “I have called for Congress to create a new version of the lapsed independent counsel statute that would apply to situations when the executive branch is investigating itself, and a clear conflict of political interest arises.”

He adds: “This new statute would make the independent counsel appointed by a three-judge panel as before. That independent counsel could not be dismissed except for egregious misbehavior, and any dismissal would be subject to judicial review.” Mr. Fein then gets to another vital provision that would indeed ensure this criminal investigation would be independent. “Most important,” he says, “the independent counsel would enjoy authority to challenge in federal courts any state secrets privilege or executive privilege claim interposed by the president or the attorney general to block access to relevant information. The independent counsel could be made permanent for the general category of executive branch conflict of political interest cases or be special for the videotape interrogation case alone. And the statute should also make it a crime for the executive branch to retaliate or demote any government official cooperating with the investigation.”

Sen. John McCain, Arizona Republican, strongly objects to torture and certainly believes in the separation of powers. He could introduce a bill creating this statute that would really get to the bottom and the top of the CIA’s destruction of those videotapes, leading to a probe of the administration’s other practices of torture.