Tapegate Probe Will Outlast Bush Presidency
You can't make this stuff up. The federal prosecutor chosen to lead the criminal investigation into the Central Intelligence Agency's destruction of interrogation videotapes is the same guy who helped bust up the Boston mob.
With his choice of veteran prosecutor John Durham to lead the investigation into Tapegate, Attorney General Michael Mukasey has shown that he takes this matter seriously. And by naming Durham, a bulldog who is more professional than partisan, Mukasey also ensures that the investigation will be ugly and long-lasting.
So now we wait -- for subpoenas and other requests for information and documents sent by the Justice Department to the CIA. And for the assertion of executive privilege and the "state secrets" doctrine and other national-security related defenses from the CIA -- and, probably, the White House. We wait for court hearings and backroom negotiations. We wait for recusals by Justice Department officials who offered legal opinions about the destruction of the tapes before they were destroyed. We wait for congressional whining about the pace of the investigation. And we wait for the sort of political posturing that comes with an election year.
Whether Durham, a U.S. attorney in Connecticut, can undertake a thorough investigation within the confines of the executive branch is an open question. The CIA says it will cooperate. But that's what investigatees always say. Moreover, the CIA cannot compel one of its officials to participate in a criminal investigation against his or her will. (Remember: people go to jail, agencies do not.) Each person called before Durham's investigators will have the constitutional right to cooperate or remain silent.
Then there is the "internal legal defense" angle. If CIA (and Justice Department) lawyers ginned up a rationale for destroying the tapes, and CIA officials then followed that legal advice, how can those officials ultimately be charged with a crime? How can the Justice Department charge executive branch lawyers with providing faulty legal advice?
There are plenty of questions here, and very few answers.
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