Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The Justice Department's controversial court filing on late Friday night -shhh, while everyone is sleeping! - isn't worthy of all the media attention it got over the rest of the weekend.
Neither was Attorney General Michael B. Mukasey's "nuts to you" response to legislators when they asked for updated information about the Department's investigation into Tapegate, the Central Intelligence Agency's destruction of terror interrogation videotapes.
The post-happy-hour filing came in the case of two detainees. The federal judge in this case had ordered the government back in 2005 to protect from destruction "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."
The Justice Department told U.S. District Judge Henry H. Kennedy that he should now inquire no further into Tapegate and that, even if tapes were destroyed by the CIA, they were not at the time subject to his court order because the men in question were not being held at Gitmo.
A few hours earlier, in the light of day, the attorney general politely and rather succinctly informed several key legislators that the Justice Department would not be willing to share in real-time the details of its nascent Tapegate investigation. To do otherwise, Mukasey wrote, would be to undermine his pledge of nonpartisanship which he made repeatedly to some of the very same members of Congress during his confirmation hearing a few months ago.
In the first case, the executive branch was telling the judiciary to steer clear of the controversy altogether. In the second case, the executive branch was telling the legislators to wait like the rest of us for the results of an internal investigation (at both the Central Intelligence Agency and the Justice Department) into the CIA's breach of protocol (if not of federal law). Surely this scenario - one branch telling another to get lost - is not breaking news.
What else did you expect Mukasey and Company to do? Before they know more, before the CIA coughs up any more spies to talk, officials in Justice's National Security Division cannot permit judge-authorized discovery of the matter in criminal or civil cases. And no prosecutor is going to be eager to share with a bunch of politicians the ongoing results of a pending investigation. You can imagine how secret the details of such an investigation soon would become.
So it's on all the executive branch now. At least for now. By pushing back last week, the White House and CIA and Justice Department have gained a little more time, if not a little more room, to sort out for themselves what went so wrong; how material and relevant legal and historical evidence could be so willingly destroyed. The executive branch may not have the last word on where the facts lead us here. But it has by fiat declared that it will have the first.
This means Mukasey, 66, still wet behind the ears in his new job, has to get it right the first time. He has to conduct himself like the blend of judge and lawyer that he is. The lawyer in him must aggressively-even zealously-seek the truth about how and why the tapes were destroyed. The judge in him must just as ruthlessly ensure a dignified, independent investigation which the American people can trust and respect when it is completed.
Can he do this, even if he wants to? I'm not sure. Given the history of the past seven years with these folks, there is every reason to think that deep within the recesses of the CIA (and the White House) bright, powerful people are even now plotting to block investigators (even CIA investigators) from ever really knowing for sure (or saying for sure) precisely what happened. Maybe "plotting" is too strong a word. Maybe a better word is "ensuring."
And if the pending executive branch investigations fail? If the Justice Department comes back and says it could not complete a comprehensive factual narrative because of CIA intransigence? If the CIA comes back and points a finger at one guy-hi there, Jose Rodriguez, former CIA operations director-and then whitewashes the rest? Then it will be incumbent upon the Congress, and the courts, to ensure that the other branch is held accountable.
What then? Subpoenas? Court orders? Secret deposition sessions? The "executive privilege" showdown we've all been ready and waiting for between the President and Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont? How long will that take? Surely long enough to run out the clock on this administration. That's why this first true test for Mukasey almost certainly will be his hardest.
At his confirmation hearing, Mukasey told Senate Judiciary Committee members over and over again that he would exercise independent judgment and not simply defer to the wishes of the White House. That White House now wants this all to go away, quietly, without any court cases or the concomitant public display of even more sensitive intelligence information. Most of the rest of us want a simple and unvarnished explanation about what went wrong. We'll soon see which side Mukasey really is on what he meant at his hearing when he used the word "independent."
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