A Job for Justice

Wednesday, December 19, 2007

LAST WEEK, Attorney General Michael B. Mukasey all but insisted that the House Intelligence Committee shut down plans to investigate the destruction of CIA tapes allegedly depicting a terror detainee being waterboarded. Mr. Mukasey also rebuffed a request by Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) and ranking member Arlen Specter (R-Pa.) for information about the Justice Department's involvement in the tapes matter. Mr. Mukasey explained that the Justice Department, which had opened a preliminary inquiry, "has a long-standing policy of declining to provide non-public information about pending matters."

Lawmakers complained bitterly. Given the administration's track record of subterfuge and obfuscation, they understandably worried that Mr. Mukasey's declaration was an attempt by the Bush administration to circumvent legitimate congressional oversight. The burden is on Mr. Mukasey to prove them wrong.

Yet Mr. Mukasey was right, even if not as emphatic as he should have been in recognizing lawmakers' legitimate interests, in insisting that the Justice Department be allowed to proceed first -- and at arm's length from Congress. It is far too early to tell, but the destruction of the tapes could under certain circumstances constitute a crime, and only the Justice Department can ensure that those responsible are held legally accountable. A congressional misstep could undermine that effort.

While a typical criminal investigation proceeds from the ground up, with prosecutors combing through documents and interviewing lesser players first, congressional hearings are more likely to immediately call "star" witnesses. For example, the House Intelligence Committee was originally hoping to hear this week from Jose A. Rodriguez Jr., the CIA official who was identified in news reports as ordering the destruction of the tapes. Such testimony could have damaged a fledgling criminal investigation, allowing other players to align their stories. Plus, few, if any witnesses, are likely to testify without grants of immunity, which would seriously complicate the Justice Department's ability to bring charges against them. Remember Oliver North?

In their letter last week to Mr. Mukasey, Mr. Leahy and Mr. Specter asked entirely legitimate questions: "Did Department officials or attorneys communicate views on the advisability or legality of destroying the tapes? What communication has the Department had with the White House about the existence, plan to destroy, and destruction of the videotapes?" But each of these questions goes to the core of the Justice Department's probe. If a grand jury is empaneled, Mr. Mukasey and the Justice Department would be legally constrained from disclosing such information. Mr. Mukasey, however, should keep lawmakers informed generally about the progress of the investigation and report back quickly if he concludes that no laws were broken. There is still an important debate to be had about how the tapes were handled -- and what they allegedly depicted -- even if their destruction does not meet the legal definition of a crime.

Mr. Mukasey should be given some, but not unfettered, leeway. He should reconsider whether the department's Criminal Division or Public Integrity Section may be better suited than the National Security Division, which deals regularly with the intelligence agencies, to handle this investigation. The attorney general must also tread carefully when examining the Justice Department's possible role in the matter. Mr. Mukasey was right to reject calls for the immediate appointment of a special prosecutor, but he should think again if preliminary inquiries suggest the department was more deeply involved than first suspected.

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