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Foxes OnlyHow not to investigate the destruction of the CIA tapes.

By Emily Bazelon
Posted Monday, Dec. 17, 2007, at 5:22 PM ET

(Continued from page 1)

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.

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Emily Bazelon is a Slate senior editor.
Photograph of Michael Mukasey by Tim Sloan/AFP/Getty Images.
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Remarks from the Fray:

I can't help but wonder if this executive branch strategy isn't designed to simply stall any potentially big revelations until sometime next fall. Say, after the elections. The current administration is probably perfectly happy to see a "very thorough" investigation as long as it is out of office before the proverbial sh*t hits the fan. There is always hope that a new administration, Republican or Democrat, will decide that fighting an "old battle" over the tapes isn't worth the effort. After all, a new Democratic president will need to "win over" the DOJ and CIA, and might decide it isn't worth aggravating them for nil political capital. As for a Republican president, well, I wouldn't hold my breath waiting for them to jump on the issue either.

Delay and obfuscate. The voters have a relatively short attention span, and if they get POd the day *after* the election it is too late. Plenty of time for them to forget before the next election. A very thorough, and long, investigation indeed.

--fozzy

(To reply, click here.)

In light of this information about when the tapes were destroyed and what they may have contained, I wonder if Mukasey's reluctance to take a stance on waterboarding may have been because he had already been told that he would be facing the issue of the tapes?

Yeah I know it sounds a bit far-fetched, but at the same time the administration could not afford to risk hiring on someone like Mukasey and then have him bite the proverbial hand upon finding out he was embroiled in yet another "missing tapes" controversy. Were I in the White House, I would have given him a very private "top secret" briefing that essentially gave him a heads-up that he might be having to deal with issues like waterboarding on some taped interrogations and that some of the tapes had been destroyed.

Properly couched, someone like Mukasey - a "true believer" - would probably agree that was just the way things had to be to avoid the "democracy as a suicide pact" that all the "true believers" seem to fear. Of course this makes Mukasey vested in the effort to find no criminality associated with the destruction of the tapes. And that in turn fits with the current behaviour.

--degsme

(To reply, click here.)

(12/20)

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