The potential obstruction of justice alleged in the controversy over the CIA's detainee torture tape destruction is a serious matter. Unfortunately, by assigning this investigation to a Justice Department employee, who works for the administration he is investigating, Attorney General Michael Mukasey seems only to be reinforcing the Bush Administration's failed accountability record.
If the recent scandal over the firing of United States attorneys has taught us anything, it is that this administration cannot be trusted to keep politics out of prosecutions, and – when administration officials are alleged to have committed crimes, we need more independence, not less.
To be clear, no one wants a return to the days of "independent counsels" like Ken Starr, who run amok as investigators in search of non-existent crimes, with the taxpayers left holding the bill. Fortunately, Congress wisely allowed the statute that gave Starr his authority to expire.
In its place, the Justice Department imposed its own regulations allowing the appointment of "special counsels" from outside the government to conduct investigations where the Attorney General and other Department officials have a conflict of interest. Unlike the independent counsel statute, the Attorney General has oversight authority to prevent special counsels from unilaterally expanding their investigations, and counsels must follow department ethics rules.
However, the counsel does not have to report to Department officials on a daily basis, and the Attorney General must report to Congress if he fires a special counsel or otherwise halts the investigation. To provide accountability and transparency, the Special Counsel must report to the Attorney General about any decisions to prosecute or not to prosecute and the Attorney General can provide that report to the Congress or the public. Unfortunately, not one special prosecutor has been appointed using these regulations during the entirety of the Bush Administration.
Following the Watergate scandal, a consensus emerged that safeguards needed to be in place to ensure outside independent investigation of the politically powerful. Following the Ken Starr investigation, a consensus also emerged that no prosecutor should be given unchecked power. Appointing an outside special prosecutor attempts to balance these needs.
John Conyers, Jr., D-Mich. is chairman of House Committee on the Judiciary.
