So, the DOJ's total comment on this important probe apparently is its statement attributable to Public Affairs Director Matthew Miller:
In January 2008, Attorney General Michael Mukasey appointed Assistant United States Attorney John Durham to investigate the destruction by CIA personnel of videotapes of detainee interrogations. Since that time, a team of prosecutors and FBI agents led by Mr. Durham has conducted an exhaustive investigation into the matter. As a result of that investigation, Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes.
That's the official word. Now, let's examine why Durham's results are disturbing:
First, the "harsh interrogations" involving waterboarding at issue are also suspected to be "torture" under longstanding international definitions. Historically, torture can be a war crime. The iconic Nuremberg War Crimes Commission may seem far away in time and space. But Chief U.S. Prosecutor Robert Jackson interrupted his Supreme Court duties for the task. As a plain-speaking and eloquent U.S. attorney general, he earlier provided inspirational guidance to the nation's prosecutors by urging an all-out commitment to fairness.
So, it's a big deal on the world stage -- and in conflict with our highest traditions -- if authorities intentionally whitewash culpability in a torture probe.
Second, a government whose CIA agents apparently escape responsibility for destroying evidence remains shameless in throwing the book at private defendants. For example, the Connecticut U.S. attorney's office is still seeking to imprison Spadoni for deleting files from his office computer in 1999. That obstruction of justice count is the only one remaining from his decade-long ordeal after the appeals court vacated his substantive convictions.
Finally, the Justice Department's public relations techniques illustrate lack of accountability and transparency. This is a bipartisan problem. Mukasey, Holder and their staffs portray their internal investigations as tough, thorough, transparent and independent. The reality is the opposite.
These problems go far beyond the CIA videotape and political purge investigations. On Sept. 23, USA Today published an investigative series entitled, "Misconduct at the Justice Department." The paper documented 201 criminal cases since 1997 "in which judges determined that Justice Department prosecutors -- the nation's most elite and powerful law enforcement officials -- themselves violated laws or ethics rules."
One of those was the Durham case, U.S. v. Washington, where the trial judge found prosecutorial misconduct. USA Today's synopsis did not name Durham, but his role is specified in the judge's opinion and in a Connecticut Law Tribune report on June 23, 2003, entitled, "Attorney's Trial Tactics Impugned: Judge Tosses Conviction."
In fairness, let's note that many prosecutorial decisions are complex, with unpredictable results. Also, prosecutors, the FBI, CIA and other law-enforcers protect the public against grave tangible threats, of course. Therefore, our system provides, appropriately enough, immunity from sanctions (and most of the time even embarrassment) in all but the most extreme situations.
Here, any defendants would doubtless have mounted an aggressive defense. CIA clandestine officer Jose Rodriguez, who destroyed the tapes, "is truly an American hero," according to Robert Bennett, his powerhouse Washington attorney. Bennett further told NPR Justice Department reporter Carrie Johnson, "He's a patriot and all he did was protect his people and his country."
That leads to another consideration. A court's finding of an error or lapse shouldn't unduly tarnish successes over an otherwise positive career. Criticism of authorities needs to have a sense of proportion, just as their actions should have when directed at the public.
Those who have worked with Durham and Dannehy, for example, can point to many examples of impressive work. As the top special prosecutor in a previous case examining a federal law enforcement scandal, Durham led the team that convicted John Connolly, a once-illustrious FBI agent.
Massachusetts Chief U.S. District Judge Mark Wolf (for whom I was law clerk two decades ago) started the probe after he became suspicious of FBI and prosecutorial misconduct in a series of mob cases. The judge held in-depth hearings in the late 1990s. Durham then won racketeering and obstruction of justice convictions. Connolly was also sentenced last year for conspiracy to commit murder.
Wolf, a special assistant to Attorney General Edward Levy in the late 1970s who helped his boss create DOJ's Office of Professional Responsibility, is one of several chief federal judges who wrote Holder in 2009 urging him to be more active in ensuring that law enforcement personnel comply with the law.
Regrettably, these and many other reform efforts are disappointing in their results so far. But inaction can't be the alternative. Misconduct by authorities is a disaster for those whose freedom is at stake, and for those committed to a fair and credible justice system.
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