Justice for the CIA
By DAVID B. RIVKIN JR. and LEE A. CASEY
January 17, 2008; Page A17
Last week, a federal judge in Washington, D.C. refused to open his own inquiry into the CIA's 2005 destruction of videotapes showing the interrogation of high-level al Qaeda prisoners. In rejecting this demand by lawyers for various Guantanamo Bay detainees, Judge Henry H. Kennedy Jr. noted that there was no evidence that the Bush administration had violated court orders, and that he fully expected the Department of Justice to investigate the matter, following the facts "wherever they may lead."
Attorney General Michael B. Mukasey has tasked one of his most experienced prosecutors, John Durham, First Assistant United States Attorney from the Eastern District of Connecticut, to lead the investigation. In doing so, he has resisted the all-too-predictable calls by Congressional Democrats for the appointment of an "independent" or "special" prosecutor -- a move that would have transformed what should be a routine inquiry about obstruction of justice allegations into a political football.
America's largely unhappy experience with special prosecutors began with the May, 1973 appointment of Harvard Law professor Archibald Cox to investigate Watergate. The scandal had already engulfed a number of Nixon administration officials, and the trail soon led Cox inexorably towards the Oval Office itself. Nixon ordered his dismissal as part of the "Saturday Night Massacre" on Oct. 19, 1973. Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus -- who had promised Congress they would not fire Cox -- both resigned.
As a result, the Justice Department's third-ranking official, Solicitor General Robert H. Bork, carried out the president's order. On his own initiative, however, Mr. Bork also acted to preserve Cox's investigative papers and kept his team intact within the department. Less than two weeks later, a new special counsel was appointed in the person of Leon Jaworski.
But the unique circumstances of Watergate did not warrant Congress's overbroad response: The Ethics in Government Act, creating the office of Independent Counsel, in 1978.
Under this independent counsel law, the attorney general was required to seek a special prosecutor's appointment (by a special court in Washington, D.C.) whenever he or she could not say there were "no reasonable grounds to believe that further investigation or prosecution" of certain high-level government officials was warranted. The predictable result was a prosecutor with virtually unlimited resources and commission to target particular individuals.
This was exactly the type of prosecutorial danger that Attorney General (later Associate Justice of the Supreme Court) Robert Jackson warned of in a famous 1940 speech: "Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone."
Throughout the 1980s and 1990s America was, in a series of independent counsel investigations targeting Republicans and then Democrats, treated to a practical demonstration of how well-founded were Jackson's fears. Dozens of lives were disrupted or destroyed by the process. For the GOP, the low point doubtless came when an Iran-Contra independent counsel announced the indictment of former Reagan administration Defense Secretary Caspar Weinberger four days before the 1992 presidential election. For Democrats, the nadir of the independent counsel experience was surely in 1998, when the Whitewater special prosecutor demanded a sample of President Clinton's "genetic material" to test against the stains on Monica Lewinski's blue dress.
The independent counsel law was, thankfully, allowed to expire in 1999 and was not reauthorized. However, special counsels can still be appointed under Justice Department rules which -- if taken to an extreme -- can effectively recreate the independent counsel office. This was the case most recently with the appointment of a special counsel to investigate the supposed "leak" of CIA employee Valerie Plame's identity. Ironically, then it was the CIA demanding an investigation -- even though Ms. Plame clearly was not a covert agent whose identity was protected under the law.
The CIA is now the target of demands for a special prosecutor, because its officials allegedly destroyed evidence and thereby obstructed justice. Whether the interrogation videotapes at issue contained "evidence," required to be preserved under the law, is very much an open question.
Published reports indicate that the videotapes showed, among other things, the "waterboarding" of Abu Zubaydah -- the man believed by U.S. authorities to have masterminded the 2000 attack on the USS Cole. It is unclear that any judicial order reached this material, or that it was in any way relevant to any pending investigation.
Even if it did, the tapes' destruction would not necessarily warrant prosecution. Ordinarily, a prosecutor would have to account for a range of considerations, including the overall strength of the case, available resources, other priorities, and whether bringing the matter to trial would do more harm than good to the national interest -- particularly when classified information is at the case's core and the identities of truly covert American operatives are likely to be exposed.
An independent counsel is far less apt adequately to weigh these considerations. This is because his or her whole purpose (and the measure of success) is to investigate or prosecute a particular individual or individuals. By tasking a career Justice Department prosecutor, fully subject to the department's ordinary rules and procedures, to handle this investigation, Attorney General Mukasey has brought the proper perspective back into the process.
It may well be that Mr. Durham will find serious wrongdoing and decide to pursue a prosecution. If he does, it will have been a decision motivated by the regular considerations of a normal prosecutor -- not by the relentless demands of today's politics of destruction.
Messrs. Rivkin and Casey served in the U.S. Justice Department.
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