Special Counsel Needed to Probe CIA Videotape Destruction

I do not make the call for a special counsel lightly. Seldom have the facts and circumstances surrounding an investigation made a more compelling case for appointment of a special counsel.
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This past week, we learned that an administration official in the CIA had destroyed videotapes of the agency's use of severe interrogation techniques on detainees held in secret, extra-legal prisons. Responsibility for this sad stain of dishonor on America's integrity rests squarely with the president. The evidence destroyed depicted the president's policy of snatching terrorist suspects from the streets of foreign countries, hiding them away in secret prisons, and torturing them. The president has created a culture of criminal misconduct and cover up, has injected politics into the administration of justice, and has made public policy a slave to his ideology. I have called for a special counsel to conduct a thorough but unbiased investigation of this matter.

There are two circumstances under which federal law requires the attorney general to appoint a special counsel: when the investigation would present a conflict of interest for the Department of Justice and when it would be in the public interest for an independent prosecuting authority to assume responsibility for the investigation. Seldom in our history have the facts and circumstances surrounding an investigation made a more compelling case for appointment of a special counsel.

At his confirmation hearing this fall, the president's nominee for attorney general confounded legal experts and the American public by testifying that he was not sure whether waterboarding constituted torture. American military courts have condemned waterboarding as torture since the United States occupation of the Philippines in 1902. Michael Mukasey's refusal to answer directly that waterboarding is torture and violates federal law raises serious questions regarding whether he can conduct an unbiased investigation into conduct involving the waterboarding of detainees.

Unfortunately, under this administration, the Department of Justice has been riddled with ideological influence and partisan politics, from providing legal cover for the president's "alternative interrogation" policy to advising him that he had unreviewable authority under Article II of the Constitution to define the scope of his own powers. The administration has even gone so far as to hire and fire top prosecutors based on whether they were "loyal Bushies."

Moreover, the investigation necessitates that criminal investigators pose direct questions to, and demand answers of, high-ranking administration officials. We know that former White House Deputy Chief of Staff Harriet Miers was involved in the decision regarding whether the tapes should be preserved. We know that both the president and the vice president took a keen interest in the implementation of their policy regarding the detention and interrogation of terrorism suspects. And I am concerned that the president's spokesperson reported that "the president said that he does not recall being made aware of [the tapes'] existence or their destruction until [his Dec. 6, 2007] briefing."

I do not make the call for a special counsel lightly. For 34 years, 16 years as the chairman or ranking member of the Senate Judiciary Committee, I have been a supporter and steward of the Department of Justice. I still maintain the utmost respect and admiration for the career prosecutors who enforce our laws every day without bias. But when a president abandons our cherished national values of upholding the rule of law and respecting human dignity, and when he allows our system of justice to be influenced by partisan politics, the attorney general he appointed cannot preside over an investigation that goes to the heart of the administration's conduct. In such circumstances, our law requires the appointment of a special counsel.

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