The CIA Tapes Prosecutor is Neither "Outside" Nor "Special," Nor "Independent" [View All]

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Wednesday, January 02, 2008

The CIA Tapes Prosecutor is Neither "Outside" Nor "Special," Nor "Independent"

Marty Lederman

Initial reports are that the Attorney General appointed an "outside" counsel to oversee the criminal investigation of the CIA tape destruction. But there's nothing really "outside" about John Durham. He's a career DOJ prosecutor, the number two official in the U.S. Attorney's Office in Connecticut. As the Attorney General explained today (see statement below), the case would ordinarily be handled by the U.S. Attorney for the Eastern District of Virginia, but that U.S. Attorney requested that his office be recused from the matter "in order to avoid any possible appearance of a conflict with other matters handled by that office." (Hmm . . . what might that mean? That the investigation deals with whether there was obstruction of justice in cases being prosecuted by the E.D. Va., perhaps?)

Therefore, the AG appointed Durham to to serve as "Acting United States Attorney for the Eastern District of Virginia" for purposes of this matter. Durham will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey. This is not like the Scooter Libby case, in which the "special" prosecutor was guaranteed substantial independence from Main Justice. (That's not surprising -- it's not apparent why the AG, and Main Justice, should not have ultimate supervision over the case.)

Statement by Attorney General Michael B. Mukasey Regarding the Opening of an Investigation Into the Destruction of Videotapes by CIA Personnel]

“Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation as outlined below.

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