Mukasey Must Appoint a Special Prosecutor

Yesterday, Attorney General Michael Mukasey announced that the Department of Justice has opened an investigation into the CIA's destruction of videotapes depicting the "harsh" interrogation of detainees in its custody.

It's good that Mukasey is feeling enough heat that he's forced to do something. On the other hand, he has refused to appoint an independent prosecutor and instead is allowing the DOJ to investigate itself and others in the Bush administration.

This just isn't good enough, because the Bush administration will still control the investigation. The prosecutor he named will report directly to the deputy AG - where the nominee refuses to say if waterboarding is illegal, who will then report to Mukasey - who also refuses to say if waterboarding is illegal. There is no independence.

Not only that, Mukasey has limited the investigation only to whether crimes were committed related to the destruction of the tapes. But there are other questions that need to be asked, including whether what was being videotaped is a crime and whether failing to disclose the existence of the tapes to the 9/11 commission also violated the law.

The ACLU will be sending a letter to Mukasey calling on him to appoint an independent prosecutor - one with real independence and transparency - who can undertake a comprehensive investigation into all of the potential crimes surrounding these videotapes. This is the only way Americans will be able to rest assured justice is carried out.

And as today's New York Times editorial points out , this or any other investigation does not affect the ACLU's contempt motion currently pending in district court. Last month we filed a motion asking a judge to hold the CIA in contempt for flouting a court order in our torture-related Freedom of Information Act lawsuit . While the criminal investigation proceeds, the CIA should be sanctioned for flagrantly flouting a court order.

CORRECTION: A earlier version of this post stated the New York Times' position to be that the investigation should not be used to stall our contempt motion. In fact, the Times op-ed stated that the investigation does not affect the motion.