During his Senate confirmation hearing, Michael Mukasey refused to opine about whether water boarding constitutes torture. Mukasey knew the Bush administration had admitted water boarding prisoners, and that torture is a war crime under the U.S. War Crimes Act. Mukasey was shielding his future bosses from criminal liability as war criminals. Now the Department of Justice, under Mukasey, is investigating the destruction of the tapes.
Justice Department regulations call for the appointment of an outside special counsel when (1) a criminal investigation of a person or matter is warranted, (2) the investigation or prosecution of that person or matter by a United States Attorney's Office or litigating division of the Department of Justice would present a conflict of interest for the Department, and (3) under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. When these three conditions are satisfied, the attorney general must select a special counsel from outside the government. (28 C.F.R. 600.1, 600.3 (2007).)
When he was a federal judge, Michael Mukasey issued the material witness warrant for Jose Padilla. The warrant was based partly on information from Abu Zubaydah. It is not clear whether Mukasey knew Zubaydah's statements were obtained by torture. But since he issued the warrant, Mukasey has a real or apparent conflict of interest. He has said it is premature to appoint an outside special counsel. But like the Nixon administration, the Department of Justice cannot be trusted to investigate itself. Congress should be pressured to pass a new independent counsel statute.
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