Will John Durham be as independent as Michael Mukasey should have been?

The law, lawyers, and the court.
Jan. 3 2008 6:20 PM

The Inside-Outsider

Can the CIA tapes investigation truly be an independent one?

When John Durham was named yesterday to head the federal investigation over CIA torture tapes, Attorney General Michael Mukasey accidentally unleashed a slew of adjectives that haven't been used since, well, since Michael Mukasey was nominated to be attorney general.

Newspaper accounts of Durham were quick to label him as "tough," "apolitical," and a Washington "outsider" who "avoids the spotlight." If those descriptors sound awfully familiar, it's because they were precisely the words used just a few months back to describe Mukasey himself. At the time of his nomination, Mukasey was also widely celebrated as a man more devoted to separating right from wrong than to partisan politics. He, too, was lauded as tough yet fair. But as we soon learned at his confirmation hearings, and again when he told Congress and the federal courts to stay out of the CIA tapes investigation, even the most independent-minded and apolitical souls can somehow morph into David Addington once they've sipped the Bush administration's Kool-Aid. Those adjectives are starting to lose their luster.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Advertisement

Whether Durham will prove more like Mukasey or more like Patrick Fitzgerald—the dogged special prosecutor in the Valerie Plame case—is the question on everyone's mind today. That alone may prove the difference between a government whitewash and a serious investigation into the 2005 destruction of CIA tapes showing brutal interrogations of al-Qaida prisoners.

In the Los Angeles Times today, Durham is described as the "second coming of Patrick Fitzgerald," although the LAT is also quick to point out that Durham is being granted far less independence than Fitzgerald had. Over at Balkinization, Marty Lederman argued last night that "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 ... [and he] will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey." Taking the same tone, a statement last night from Rep. John Conyers Jr., chairman of the House judiciary committee, chided Mukasey for having "stepped outside the Justice Department's own regulations and declined to appoint a more independent special counsel in this matter." Conyers decried both the lack of any final report on the investigation and the narrow scope, which "appears limited to the destruction of two tapes," as opposed to the alleged torture on the tapes. Based on Mukasey's charge to him, Durham's investigation will stop at government obstruction and false statements, without ever probing the torture itself.

An editorial today in the New York Sun celebrates the fact that Durham, unlike Fitzgerald, will answer to the attorney general. The alternative is a "runaway train" like the Scooter Libby prosecution. Far better, continue the editors,that"the executive branch is handling its own affairs, which is as it should be under the separation of powers." Of course, many of us find it hard to feel sanguine at the prospect of the executive branch "handling its own affairs" insofar as that generally involves obscuring or immunizing its own lawlessness. And at least thus far, that's an exercise in which Mukasey himself has appeared willing to participate. But Mukasey has taken the important step of appointing a prosecutor, and Durham differs from Mukasey in a few important ways.

The first warning we had that Mukasey might not look askance at imperial proclamations from the executive branch came with his curious op-ed shortly before his nomination to replace Alberto Gonzales as AG. Judge Mukasey had overseen the earliest part of the Jose Padilla terror trial and had pushed back against the Bush administration long before most federal judges believed that was warranted. Yet by August of 2007, Mukasey had apparently concluded that "current institutions and statutes are not well suited" to terrorism cases. In the strangest conversion ever, it seems that when the rest of the country was coming to understand that the Bush administration was playing fast and loose with judges, Mukasey was suddenly becoming skeptical about courts. That makes Mukasey the one jurist in America who trusts the president more today than he did in 2002, even in light of the government's shameless manipulation of the Padilla case.

John Durham, as the Washington Post points out today, has little experience with either national security or executive-power cases. And given that Mukasey's very experience in those areas seemed to allow him to arrive at precisely the wrong conclusions about the trustworthiness of the Bush administration, that may not be a bad thing. If Durham is truly more passionate about right versus wrong than he is about right versus left, he may not be as quick as Mukasey was to give up on the efficacy of America's court system.

And Durham appears to be more than merely apolitical. He appears to be zealous in his ability to smoke out wrongdoing, even when it's the alleged good guys who have been doing the wrong. Durham's career-making prosecution was, after all, an appointment by Janet Reno to go after criminal conduct by the FBI and other government agents who had apparently been in bed with mobsters in Boston for decades. In this fascinating 2001 profile in the Hartford Courant,Durham is described as nonpartisan, incorruptible, and totally devoted to the integrity of the justice system. He was able to go after corrupt federal agents precisely because his belief in the system transcended his devotion to the government.

To be sure, Durham faces challenges in his CIA investigations that will make the Boston prosecution look like a day at the ballpark. Both the CIA and the White House will throw as much sand in his eyes as they possibly can, and if Harriet Miers can be prevented from testifying about fired U.S. attorneys, you can bet the White House won't make it easy for Durham to investigate allegations of lies and obstruction. The fact that Durham ultimately answers to Mukasey is hardly comforting, either.

But maybe it's enough just to note a slight trend: When it comes to saying no to the president, Mukasey is exponentially braver than Gonzales was, and when it comes to exposing government misconduct, Durham may well prove braver than Mukasey. At a press conference about the Boston prosecution, Durham was asked by a reporter whether the Department of Justice truly had "the stomach to pursue this investigation to its conclusion," even if that meant further eroding the FBI's credibility. Durham's response at the time: "The government absolutely has the stomach." Here's hoping his stomach can stay that strong.