Let Congress, courts probe CIA tapes case

The Bush administration has taken a heads-we-win, tails-you-lose approach to the scandal over the destruction of CIA interrogation videos. First, the Justice Department asked a federal court to halt a pending inquiry partly because Congress was already looking into it. Then it turned around and urged Congress to shut down its investigation until the CIA and Justice were finished with theirs. As convenient as this would be for an administration that prefers to operate in secrecy, both the courts and Congress have an obligation to conduct independent inquiries.

Pattern of secrecy

If the administration gets its way, the story of the videotapes' destruction would remain forever a matter of mystery and conjecture. This would conform to a years-long pattern in which anything remotely related to the war on terror -- wiretapping, the treatment of detainees, the ''rendition'' program -- has been stamped secret. The courts and Congress have had a hard time trying to exercise oversight and properly addressing issues of legality.

In the case of the CIA videotapes, there are two issues, and it's hard to say which is worse for the administration. The first is what Was on the videotapes: Were at least two al Qaeda operatives subjected to unlawful interrogation methods, i.e., torture? The second is whether the destruction itself violated the law.

Some lawmakers knew of the existence of the videotapes. All say they advised against destroying the tapes. Published reports say former Attorney General Alberto Gonzales and White House Counsel Harriet Miers were among those consulted. It is not clear what advice they gave, but the involvement of such prominent officials underscores the need for Congress to find out who ordered the destruction and why.

Judge makes right call

The judicial inquiry is equally serious. In 2005, U.S. District Judge Henry H. Kennedy issued an order requiring the administration to preserve evidence in a lawsuit brought on behalf of 16 prisoners at Guantánamo Bay, Cuba. A violation of that order could represent obstruction of justice. In view of reports about possible Justice Department or White House involvement, Judge Kennedy has been right to insist that administration lawyers appear in court today to discuss whether the destruction violated his order.

On Thursday, the CIA agreed to turn over to Congress documents related to the destruction of the tapes, reversing its earlier position under threat of subpoena. Now Congress must be careful to avoid the possibility that its investigation will produce testimony that would complicate, if not impede, the prosecution of witnesses who testify on Capitol Hill with or without grants of immunity.