How long will the CIA torture tape investigation last?

Newly confirmed attorney general Michael Mukasey has announced a Justice Department probe into the destruction of CIA interrogation videos showing the torture of terrorism suspects. The reaction from some people who would like to see someone—anyone—in the Bush administration pay for something—anything—the administration has done is one of cautious optimism, with emphasis on the nature of the federal prosecutor heading the investigation, John Durham, who has apparently never lost a case and has experience dealing with federal agencies.

That optimism, however cautious, is misplaced.

What Mukasey announced is a preliminary inquiry with a very narrow focus: was the destruction of the videos a crime? The announcement provides no context, but it necessarily excludes some possibilities. The destruction took place long after the 9/11 commission closed up shop, so there can’t be any connection with having failed to provide them to the commission. Mukasey famously refused an opinion during his confirmation on whether waterboarding is torture, so it’s unlikely he’s investigating whether or not the CIA destroyed evidence of torture.

The most probable arena is whether or not the videos should have been turned over by court order to the Zaccarias Moussaoui defense team or the lawyers for various Guantanamo inmates. But the CIA says that internal reviews found the videos irrelevant to any court cases, and without the videos for evidence, any prosecutor would have a tough time proving that they were relevant and that the CIA knew, or should have known, they were relevant.

One of the secrets to never losing a case is never bringing charges you’re not sure you can prove. Patrick Fitzgerald, the prosecutor who convicted Scooter Libby and who has a none-too-shabby record himself, didn’t bring a case against anyone higher up the food chain than Libby because the Cheney aide successfully obstructed the investigation. Fitzgerald made clear that he thought Cheney was guilty of something, but that he couldn’t make a case without truthful testimony from Libby.

So here’s a prediction: current White House officials won’t be any more cooperative than Libby was, or Rove with his eternally flexible testimony, the CIA won’t do much better, and this investigation will either die still-born or last at least 382 days from today.

That’s no reflection on Durham. Fitzgerald’s success, though, such as it was, rested on his independence; he was a genuinely autonomous agent, an independent prosecutor, while Durham is simply a subsitute for the Washington prosecutor who recused his office from the case. He still has to answer to Mukasey. Fitzgerald specifically sought and received authority to pursue crimes arising from his investigation, such as the perjury and obstruction of justice offenses committed by Libby; there’s no guarantee Durham will receive the same latitude, or that even if he does, it won’t be granted selectively, allowing him to pursue, say, CIA officials but not White House or Justice Department ones.

Even without any interference from Mukasey, the case invites every possible difficulty. Much of the information surrounding it is classified. Everyone is thoroughly lawyered up. The CIA will be pointing fingers at the White House, and of course the reverse applies as well. Congress is conducting investigations that may well pollute the Justice Department one, particularly if Congress immunizes the testimony of any CIA figures.

Of course the very fact that there’s an inquiry, however narrow, preliminary or lambent, provides the White House an excuse to refuse public comment on any aspect of the videos. A happy coincidence, no doubt.

The only avenue for holding anyone in the administration responsible for their crimes remains, as always, impeachment.