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Given the Justice Department’s infamous 2002 “torture memo” justifying the use of “cruel, inhuman or degrading treatment” of prisoners (since partially disavowed), can that same department be viewed as an independent prosecutor in probing cases of prisoners who are badly injured or die during U.S. interrogations? That’s a question Senate Democrats are likely to pose to acting Deputy Attorney General Paul McNulty when his confirmation hearing begins Feb. 2. Before being nominated for Justice’s No. 2 post, McNulty, as U.S. attorney for the Eastern District of Virginia, oversaw the team of prosecutors who received 19 referrals of prisoner abuse from the Central Intelligence Agency and the Department of Defense. According to a recently released letter from Assistant Attorney General William Moschella to Sen. Dick Durbin (D-Ill.), two of the investigations have been dropped for insufficient evidence, and the other 17 remain under investigation. A DOJ official says the cases’ complexity and the number of foreign witnesses account for the lengthy investigations. McNulty, says one Democratic staff member, is also likely to be asked whether he had a role in formulating DOJ policies on the rendition of prisoners and the National Security Agency’s domestic spying program. But so far, at least, there appears to be little doubt McNulty will easily win confirmation. “How involved had he been in the legal advice given to the president?” asks the Democratic staffer. “Those are questions that would naturally be asked from anybody coming from inside [the DOJ].” In the meantime, McNulty’s staff has been slowly taking shape. Already on board as associate deputy attorney generals: William Mercer (as principal ADAG), who will also remain U.S. attorney for the District of Montana; Ronald Tenpas, who recently stepped down as U.S. attorney for the Southern District of Illinois; and Lee Lieberman Otis, a former general counsel at the Department of Energy. Moving with McNulty from Alexandria are his chief of staff, Michael Elston, counsel Mark Grider, and longtime adviser Frank Shults.
Jason McLure can be contacted at [email protected].

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