CIA Tapes: Will New AG Do The Right Thing?

Cohen: Michael Mukasey's Independence Will Be Tested By His Handling Of CIA Tapes Case

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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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.”

[dgwooster]

Quatrops,
Great post. After reading yours, I didn''t need to respond to him.

[quatrops]

Judging by the content of his posts, commonsence1 picked a real misnomer for his pseudonym! First of all, the checks and balances work only when enforced, and prior to 2006 that wasn''t a possibility for the minority party. After 2006, poor Democratic leadership and the skilled hand of Karl Rove (one of the few people competent at his job on the Bush "team") delayed impeachment until the possibility became moot.

So, commensence1 thinks torture is a great idea for America to practice in its conflicts. Out of what dank, putrid cave did he crawl? What is his rationale for demeaning ourselves this way? Why, of course, the terrorists do it! They also punish rape victims and cut off the hands of a 12-year-old who filches a piece of chocolate. Would commonsence1 have us copy those practices also?

It looks to me like he bought the wet-his-pants fear package the neo-con cowards have been marketing. You don''t belong here, sicko ! You don''t have the courage to be an American.

[crater7]

THE HEADLINE IS A TRICK QUESTON.

RIGHT?

DO THE RIGHT THING, NOW THIS IS UNCHARTERED "TERROR"-TORY FOR THIS ADMINISTRATION.........

DO THE RIGHT THING. I''M STILL LAUGHING........

[yongamerica]

commonsence1 - the administration has shown itself to be very liberal - LIBERAL AT REMOVING THE CHECKS AND BALANCES SET BY THE CONSTITUTION. LIBERAL AT REMOVING PRIVACY RIGHTS AFFORDED BY THE CONSTITUTION. LIBERAL AT MISUSING THE WAR POWERS ACT. LIBERAL AT ABUSING HUMAN RIGHTS. AND VERY VERY LIBERAL WITH THE LIES LIES LIES!

[bareemperor]

Did the last AG in the Department of Injustice do the right thing?

Yes, for his Bo$$...

[hillaryin08]

The Democrats funded the war again. I guess this is not news.

[king77shaw]

9/11 school:

1) how many days did Larry Silverstein own the WTC before it was demolished?

2) who was the presiding judge in the insurance case that awarded Silverstein 7 billion dollars for the supposed terrorist attacks and subsequent destruction of the WTC?

3) who was attorney general of NYC who on 9/11 detained and then quietly released (weeks later) multiple Mossad agents who were acting suspiciously (celebrating the collapses, "documenting" the event, trace explosives found in their van..)


ok, the envelope please ...

1) 50 days

2) Michael Mukasey, yes, our Attorney General ...

3) Michael Chertoff, our FEMA director..

[secundus2]

It seems to me Mukasey has already shown his independence. He say that the Justice Dep''t. is capable of investigating this issue. One of his tasks is to restore the Justice Dep''t.''s standing. What did you expect him to say, "all the career people in this agency are hopeless, let the Congress do it instead." The partisan wrangling there is endless; they can''t even pass the simplest legislation. Mukasey will do a patient and thorough investigation, but the politicians and the media will try to prevent that from happening; they prefer trial by the Evening News or the Internet headline. When his inquiry is finished, then evaluate what he has accomplished or not accomplished.

[creeper00]

"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."

Oh, come on! This White House is NOT interested in finding out what went wrong...anywhere. What this give them is a little more time to plan the cover-up.

[neoconrcrazy]

muck-assey is a bush hired gun - justice in the hands of a neocon zionist -

what do you expect?

and who pushed this rubber-stamp through?

SCHUMER 6 FEINSTEIN ! Are they Senators or israeli lobbyists ?