If Wainstein is part of the story of whether the government directly violated the judges' preservation orders, then like Helgerson, he shouldn't be in charge of the initial probe of the tapes. What's more, the National Security Division of DoJ was created by the Bush administration to work with the intelligence agencies. It's on the team, not separate from it, as investigators should be. Why isn't this a job for the FBI, where Mukasey could presumably find plenty of people who know how to poke and prod and had absolutely nothing to do with the CIA's decision-making, and so don't appear to have a stake in the mess they're supposed to shovel through?
The government's rationale for keeping any inquiry into the tapes out of court rests on its claim that no one has shown that Abu Zubaydah was at Guantanamo. But the lawyer for the detainees who asked for a hearing on this, David Remes, didn't ask the judge in his case to hold a hearing because he represents Abu Zubaydah. He supported his request to Judge Henry H. Kennedy to hear him out on the significance of the tapes with a classified filing. We don't know what's in there, or course, but the suggestion is that there could be a direct link between the tortured confessions on the destroyed tapes and the ongoing detention of Remes' clients. Perhaps Zubaydah or the other man tortured on tape talked about specific detainees or acts that allegedly involve them.
When Mukasey became attorney general this fall, he was supposed to usher in a new era at the Justice Department. Nothing that's happened so far in the fallout over the tapes has the whiff of petty (and not so petty) partisan corruption that Gonzales stood for. But the structural problems with the internal DoJ investigation are disquieting. And the Keep Out message to Congress and the courts bears the familiar and tiresome marks of a Bush administration executive power grab. "The government is trying to force Congress to leave the matter entirely to Justice Department and the CIA, both of which are implicated in the destruction of the tapes and deeply interested parties," Remes wrote to Judge Kennedy. "Plainly the government wants only foxes guarding this henhouse." It's time for the foxes to slink back to their dens.