The DOJ appointment of a special prosecutor has the Beltway press all aflutter. Why?

Because it’s that thing they do:

The art of the hissy fit lies in your ability to bring the entire media over to the fainting couch over even the most absurd allegations of impropriety and insensitivity. Pearl clutching and hankie wringing have become extremely important hardball political tactics, as hard as that is to believe. It’s especially effective if you can do it over some things you yourself have brought into the public square.

So, why the breathless reportage and ominous internal hand-wringing? Because avoiding the real backdrop makes for a more conflict-laden story:

Holder notified the White House that he was reluctantly leaning toward naming a prosecutor to review whether laws had been broken during interrogations — the very thing Obama had said he wanted to avoid. And the word Holder got back, according to people familiar with the conversations, was that the decision was up to him….

The just-announced review by career prosecutor John H. Durham is being closely followed by the intelligence community for clues about whether it will remain fixed on the low-level CIA employees and contractors who may have stepped out of legal bounds. Once Durham starts digging, some analysts said, the veteran prosecutor could uncover evidence that leads him higher up the chain of command in an inquiry that grows broader than the what the Justice Department outlined Monday.

What follows is a quote from Dick Cheney excoriating the probe.  With nary a mention that it was Cheney who instigated, steered and manhandled these policies into place despite their illegality.

Why is Cheney so irate? Because bluster gets him column inches without having any real fear of direct questions of his own involvement. Why? Because that just isn’t how things are done in the Beltway.  No inconvenient truths that might rock your access boat.

Here’s an inconvenient truth that press accounts fail to mention:  Why does DOJ have this investigation? Because internal CIA punted it over to them in a direct referral for investigation of potential criminal wrongdoing.

So why the review from Holder? Because when the allegations referred by CIA IG include murders, you can’t pretend you didn’t see anything worthy of investigation.  Especially with the potential of a heavy Addington thumb on the prior DOJ investigative scales.

The righting of the governmental ship will not be easy, nor will it be free from conflict. The argument is that we cannot afford to probe into illegal actions in the past because it stifles CIA and other intel activity in the present and future. It’s a legitimate fear, but not the only one. The thing that Beltway pundits ignore altogether is the mandate of the DOJ: once an investigation is passed to them for review by another executive agency, if there is evidence of wrongdoing and potential illegality at issue, they have to follow the evidence where it leads.

The CIA passed the investigative buck to the DOJ, who then took a long, hard look at the evidence presented to them and found legitimate questions of illegality just as the CIA IG’s office did in making the referral.  

All the whining in the world cannot obscure that simple truth.

These conflicts? Are not new, as Chris Hayes so ably maps out in his brilliant Church Committee reporting

Walter Pincus reports that CIA will cover the legal costs for CIA agents implicated in the investigation. Well they should, given that line agents were following policies issued from much higher above.

The question we all ought to be asking is not will the lower level folks be held to account, but rather will the higher ups pushing illegal policies? All the growly tap dancing in the world from Dick Cheney does not mask his role in this. Nor does it obscure one singularly important fact: the rule of law applies to everyone, no matter how high their power may reach.

Dick Cheney’s objection isn’t really about national security.  That Cheney bluster is about someone having the audacity to infer the rule of law might apply to him, too.

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

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