CIA I: Why a Constitutional Showdown Is Necessary In the Torture Tapes Scandal

Things are not off to a propitious start for those of us who believe that the destruction of those Central Intelligence Agency torture tapes should be thoroughly investigated. And that if people with big offices and fancy titles aren't taken down then it will have been a failure.

This is not a case of rushing to judgment -- as in prematurely assigning guilt in what is a criminal investigation in key respects.

But mine certainly is a minority view in the face of overwhelming praise for Michael Mukasey although the new attorney general has said and done nothing to merit it beyond naming veteran federal prosecutor John H. Durham as a so-called outside counsel to look into why the CIA destroyed tapes of the 2002 interrogations of two Al Qaeda operatives despite being explicitly told to preserve them.

In fact, what Mukasey has not said and done is downright troubling.

The bar is set so low after the ruinous tenure of former AG Alberto Gonzalez that when U.S. District Judge Henry Kennedy decided this week to hold off on pursuing his own investigation over the legality of the destruction of the tapes it was spun as an expression of confidence in Mukasey and not whether it was the right thing to do.

The fawning reaction of CBS News legal correspondent Andrew Cohen was typical:

"Can you imagine such respect and deference from the federal bench during the end of the reign of error of . . . Gonzales? No way. By the end of his tenure at Justice the federal judiciary was bunching up its robes in disbelief at assurances from federal prosecutors. This brief order from Kennedy backs the judiciary out of a looming constitutional showdown with its sister branch and gives both Mukasey and Congress the opportunity to take the first crack at getting to the bottom of this disturbing development."

Cohen fails to note that those federal judges with wardrobe problems played into the White House's hands by not lowering the boom on Gonzo for his serial misdeeds well before he slunk back to Texas, let alone putting heat on some of the same Bush administration bigs who are now implicated in Tapegate.

Or that the September 11 Commission was told to take a flying leap when it requested all CIA documents related to Al Qaeda prisoners, something that the spy agency knew it could do with impunity since President Bush had fought creation of the commission in the first place and was only marginally cooperative when he eventually caved in to the outrage that greeted his initial refusal.

The aforementioned people with big offices and fancy titles include Gonzalez when he was White House counsel; Harriet Miers, his successor as counsel; David S. Addington, who was then counsel to Vice President Cheney, and Jose Rodriguez, the former head of the CIA's clandestine service who ordered that the tapes go bye-bye.

In echoes of the Ollie North affair, lawyers for Rodriguez told Congress this week that he won't testify without a promise of immunity.

Granted that there always is a good deal of back and forth in the initial stages of any Washington investigation when the stakes are high. But there is too much going on – or not going on – here beyond the feel-good media pronouncements of Mukasey's righteousness.

During his nomination hearings, Mukasey's responses regarding torture were . . . well, tortured and he said he'd review the whole issue if he was confirmed stat. If he's doing so it has escaped my notice.

Then after he was confirmed, Mukasey refused to appoint an independent prosecutor with broad powers like Patrick Fitzgerald in the Wilson-Plame leak investigation although the destruction of the tapes makes the destruction of a CIA agent's career seem almost quaint by comparison.

The Bush presidency has been one big constitutional crisis, so if it takes a constitutional showdown to make sure that the investigation is on the right track, so be it.

You can bet the ranch that the executive branch is working hard behind the scenes to protect its own bunch of lawbreakers. The Justice Department is creating the appearance of playing softball when this scandal calls for hardball. And the judiciary is not asserting its powers.

Which leaves it up the Legislative branch to insist that politics will not trump the rule of law. That means that Rodriguez must testify without a grant of immunity. To do so otherwise is akin to a murderer facing no repercussions for testifying about his own crime.