James Joyner | Tuesday, August 25, 2009[Attorney General Eric] Holder has named longtime prosecutor John H. Durham, who has parachuted into crisis situations for both political parties over three decades, to open an early review of nearly a dozen cases of alleged detainee mistreatment at the hands of CIA interrogators and contractors.
The announcement raised fresh tensions in an intelligence community fearful that it will bear the brunt of the punishment for Bush-era national security policy, and it immediately provoked criticism from congressional Republicans.
Legal analysts said the review, while preliminary, could expand beyond its relatively narrow mandate and ensnare a wider cast of characters. They cited U.S. Attorney Patrick J. Fitzgerald’s investigation of the leak of a CIA operative’s identity, which culminated with the criminal conviction of then-Vice President Richard B. Cheney’s chief of staff.
In a statement Monday afternoon, Holder cautioned that the inquiry is far from a full-blown criminal investigation. Rather, he said, it is unknown whether indictments or prosecutions of CIA contractors and employees will follow. Lawyers involved in similar reviews said that any possible cases could take years to build because of challenges with witnesses and evidence.
There are reasonable grounds to believe that serious crimes were committed as the Bush administration muddled through the early years of the War on Terror. A society that believes in the rule of law, then, should investigate such charges.
Doing so, especially in the person of a special prosecutor, however, opens up multiple cans of worms. First, it puts our intelligence agencies in CYA mode, making them even more skittish than normal. Second, it provides additional fodder for our enemies. Third, it opens up a rift between our law enforcement and intelligence communities.
I take Holder at his word that he intends only to find the truth and that he has no zeal for putting intelligence professionals or Bush officials in jail. The problem, however, is that these investigations take on a life of their own. Even prosecutors whose independence and judgment were previously thought beyond reproach seem to succumb to the enormous pressure to charge people with something. Otherwise, the tens of millions of taxpayer dollars they spend on their investigation looks like a waste and those who expected the investigation to yield criminal charges will never believe there wasn’t a cover-up.
Will Durham be any different?
Though a registered Republican, Durham generally is regarded as apolitical, and attorneys general from both parties — including Janet Reno, Michael B. Mukasey and Holder — have tapped him for their most difficult assignments. Hugh Keefe, a longtime Connecticut defense lawyer who has often squared off against Durham in court, called the prosecutor “the go-to guy for Justice whenever they get a hot case.”
[...]
Mark Califano, a former prosecutor in Connecticut, described Durham’s approach as “clinical.” He said Durham “very rarely” has walked away from a case without bringing criminal charges. “He likes to make cases when there is evidence there,” said Califano, the son of former Heath, Education and Welfare Secretary Joseph A. Califano Jr. “You’ve got to balance whether that kind of information exists. . . . You can’t move forward if you don’t have the evidence.”
[...]
“The thing about the U.S. attorney’s office in Connecticut is that they take the standard of proof beyond a reasonable doubt seriously in deciding whether to indict,” Keefe said. “If Durham can’t make a case beyond a reasonable doubt, he won’t indict.”
Also of interest:
Durham risked unpopularity a decade ago when he untangled questionable relationships among FBI agents, Massachusetts police and Boston mob kingpins. Ultimately, he turned over evidence that prompted a federal judge to dismiss several murder cases and he won a conviction against a longtime federal agent who had grown too close to organized crime figures. The investigation later attracted a mass audience in the Academy Award-winning film “The Departed.”
One wonders whether this will spawn a movie as well.
About the Author: James Joyner is the publisher of
Outside the Beltway and the managing editor of the
Atlantic Council. He's a former Army officer, Desert Storm vet, and college professor with a PhD in political science from The University of Alabama. He lives just outside the Beltway in Alexandria, Virginia with his wife and infant daughter.
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