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.


http://www.buzzflash.com/articles/analysis/244