- The Washington Times - Tuesday, January 8, 2008

ANALYSIS/OPINION:

Congress should create an independent prosecutor appointed by the chief justice of the United States to investigate the CIA’s destruction of interrogation videotapes in 2005.

The apparent aim was to conceal CIA torture of al Qaeda detainees; and, to obstruct a flurry of congressional investigations fueled by grim accounts and photographs of abuse, torture, rape and homicides at Abu Ghraib prison.

Attorney General Michael B. Mukasey’s selection of John H. Durham, an obscure career federal prosecutor from Connecticut, to conduct the inquiry subject to the supervision and control of himself and President Bush should be jettisoned.

Mr. Bush confronts glaring conflicts of interest that would shipwreck any Durham investigation. He may have been complicit in the CIA’s waterboarding of terrorism suspects Abu Zubaydah or Abd Rahim al-Nashir, both featured in the destroyed videotapes. Their interrogations began after the Bush administration in August 2002 authorized “a handful of specially approved interrogation techniques,” according to a Feb. 28, 2003, letter from then-CIA General Counsel Scott W. Muller to California’s Rep. Jane Harmon, then ranking Democrat on the House Intelligence Committee.

Mr. Muller evaded answering a direct inquiry from the ranking Member as to whether Mr. Bush had authorized or approved the enhanced interrogation methods. The last thing Mr. Bush wants is a prosecutor asking former or current White House, Justice Department, or CIA officials, all preoccupied with their own reputations and legal vulnerabilities: “What did the president know about the harsh interrogations and destruction of the videotapes, and when did he know it.” Even if Mr. Bush only knew after the fact, he would be guilty of failing to superintend his subordinates.

The public record establishes that the CIA broached the idea of destroying the tapes in 2003; that several White House and Justice Department officials and Mrs. Harmon advised against the destruction; that the videotapes were nonetheless destroyed in 2005 at the instruction of then-CIA Deputy Director for Operations Jose A. Rodriguez; and, that then-CIA-Director Porter Goss did not alert relevant law enforcement officials to the apparent obstruction of congressional investigations and the September 11 Commission despite the reporting obligations of the misprision of felony statute.

Even if the president was not directly implicated in criminal wrongdoing, he would still be politically scarred if Mr. Durham successfully prosecuted his subordinates for torture or endeavoring to obstruct Congress. Mr. Bush comes to the videotape destruction debacle with notoriety for condoning or encouraging lawlessness in confronting international terrorism.

Prosecutions of CIA, Justice Department or White House officials over the videotapes would fortify the belief that Mr. Bush has engendered an executive branch expectation that crimes in the name of fighting international terrorism will be forgiven or ignored.

Mr. Durham’s investigation would need President Bush’s and the attorney general’s cooperation to move forward. The lion’s share of relevant evidence is classified or subject to executive privilege or state secrets claims. But it would be off-limits to Mr. Durham unless the president waives his claims to confidentiality, which he will never do to avoid legal jeopardy or political embarrassment.

Special prosecutor Archibald Cox’s investigation of President Nixon’s complicity in the Watergate cover-up is instructive. Mr. Cox subpoenaed crucial presidential tapes. Nixon balked on the grounds of executive privilege. He fired Mr. Cox for challenging the privilege claim in federal courts. Fortunately for the Constitution and the rule of law, political pressure forced Nixon to authorize Mr. Cox’s successor, Leon Jaworski, to contest presidential privilege claims, which culminated in United States v. Nixon (1974). That Supreme Court ruling defeated presidential confidentiality. And, a mountain of incriminating evidence soon emerged from presidential tapes that forced President Nixon’s resignation.

Mr. Durham’s investigation would further flounder because plea bargains for CIA, Justice or White House subordinates, or grants of immunity to elicit incriminating testimony against higher-level officials, would be controlled by Mr. Bush and Mr. Mukasey.

Absent plea bargains or immunity grants, the Fifth Amendment privilege against compulsory self-incrimination will frustrate an investigation of suspected torture or obstruction of Congress because the key witnesses will not talk.

Congress holds the key to overcoming the ill-conceived Durham selection and Mr. Bush’s conflicts of interest. The Supreme Court’s decision in Morrison v. Olson (1988) authorizes Congress by statute to create an independent prosecutor to overcome the spectacle of the president investigating himself over the interrogation videotapes. The statute should empower the chief justice to make the independent prosecutor appointment. Further, the appointee should be empowered to challenge any presidential claim of executive privilege or state secrets; and, to negotiate plea bargains and immunity baths without interference by the president or the attorney general.

An independent prosecutor is the only vehicle for insuring a fair and meticulous investigation of suspected executive branch lawlessness, the maximum menace to the rule of law.

House Speaker Nancy Pelosi, California Democrat, and Senate Majority Leader Harry Reid, Nevada Democrat, should sponsor the urgent legislation with alacrity.

Bruce Fein is a constitutional lawyer and chairman of the American Freedom Agenda.

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