Don't Be Fooled

It seems it is all too easy to get caught up in the holiday spirit. How else to explain the reaction of the normally astute Senator Charles Schumer to the news that Attorney General Ashcroft has finally done what the New York Times lauds as "the right thing."

Schumer is quoted in today's Times as seeing the glass "three-quarters full" in light of Ashcroft's decision to recuse himself from the investigation of the deliberate blowing of the cover of CIA official Valerie Plame, and the decision to appoint US Attorney Patrick Fitzgerald as "special counsel" to investigate that felony.

Howard Dean labeled the maneuver "too little, too late." I fear Dean is right.

Even the Times, in its "Right Thing" editorial, notes that "there are still serious questions about the investigation," namely, will Fitzgerald have "true operational independence." The odds are strongly against it.

Let not yesterday's maneuver obscure the fact that in naming Fitzgerald, who remains under the authority of Ashcroft's deputy, the Bush administration has rejected the only appropriate course -- naming a complete outsider to be special counsel.

Why has that path been rejected? One need not be paranoid to see this latest move as evidence the White House has something very sensitive to hide. Has one of their senior officials committed a felony, endangered lives, and vitiated the ability of a senior intelligence official to use her net of agents to acquire critical information on weapons of mass destruction (Valerie Plame's portfolio)?

But a fellow named Patrick Fitzgerald, like myself from Irish immigrant stock in New York City? And out of Harvard Law School? Surely, one should be encouraged, I caught myself thinking. I truly wish I could be. But I have seen far too many FBI lawyers of New York Irish stock with misplaced loyalty to the organization over the law; over the truth; over personal conscience. Respect for and fealty to hierarchy was drummed into us; individual conscience generally played second fiddle.

Past experience strongly suggests that if Fitzgerald is told to string the investigation out until after the November election, he may well oblige. If he is told to pin the blame on White House small fry willing to take the fall, he may do it.

Besides, Fitzgerald arrives on the scene months after the Ollie North memorial shredder has done its work. Recall that when it was announced that the Justice department would investigate it was made clear that the formal order requiring administration officials to save all relevant documents would come a day or two later. Imagine the heat rising from the shredder machines that weekend. And recall how the White House counsel then insisted on reviewing all documents before they could be given to the Justice department.

Last fall even the lawyers at Justice and the FBI were holding their noses. The New York Times' David Johnston and Eric Lichtblau reported on October 16 that several senior criminal prosecutors at Justice and the FBI were privately criticizing Ashcroft for failing to recuse himself or appoint a special prosecutor to investigate the crime.

But private criticism is a far cry from the more risky step of taking a strong stand against the organization's chosen course of action. And politics has become more and more important, even in the decision making of so-called career prosecutors. Besides that, the "us vs. them" mentality has gotten still stronger, and many of the Bureau's "good soldiers" remain blissfully unaware of how much they are affected by it.

So, even if Fitzgerald himself is determined to launch an "unfettered" investigation, he has this company ethic to contend with. Whether or not he keeps on John Dion, the career lawyer who has been leading the investigation, will be an indication of Fitzgerald's seriousness of purpose. It is no secret in law enforcement circles that Dion has a poor record with leaks, and is reluctant even to go to the men's room without asking permission from his superiors.