When Congress reconvenes next week, one issue it will face is the role it should play in overseeing the CIA and other intelligence agencies.
The CIA's admission last month that it destroyed videotapes of detainees being interrogated triggered an investigation by the House Intelligence Committee. Attorney General Michael Mukasey last week ordered a criminal investigation along the same lines. The parallel inquiries may now raise the question of which is more important.
The case of the destroyed CIA videotapes raised concerns in Congress and in the Justice Department for different reasons. Congressional leaders were unhappy the agency destroyed the interrogation tapes without telling them. Silvestre Reyes of Texas, chairman of the House Intelligence Committee, has scheduled a hearing into the matter on Jan. 16.
"There are a number of questions we have about what created the situation we're in today; that is, why the committee was not informed about the debate within the agency about potentially destroying the videotape," Reyes said.
Democratic and Republican staffers already have spent four days at the CIA reviewing about 300 pages of e-mails, cables and other documents pertaining to the interrogation tapes and the decision to destroy them. Acting CIA General Counsel John Rizzo has voluntarily agreed to testify at next week's hearing.
In the meantime, the Justice Department is moving ahead with its criminal investigation.
Stephen Saltzburg of George Washington University Law School said the destruction of the interrogation tapes could have been a crime even if no court had ordered that the tapes be preserved.
"It is possible to obstruct justice before an investigation begins if the person who is destroying evidence has reason to believe there will be some kind of formal proceeding and the intent is to make sure this evidence is not available," Saltzburg said. For example, if an agency official had been worried the tapes could provide evidence that the government relied on torture to obtain information it used in the prosecution of terrorism detainees.
The Justice Department investigation, however, could soon clash with the congressional inquiry. The House committee, for example, has subpoenaed Jose Rodriguez, the former CIA official who ordered that the interrogation videotapes be destroyed.
With a criminal investigation now under way, Rodriguez's lawyer is expected to advise him to exercise his right against self-incrimination. In that case, the House committee could offer Rodriguez immunity to get his testimony, but that might impede the criminal investigation.
Reyes said his committee will consider its oversight responsibility versus the Justice Department's prosecution responsibility. He won't say what the committee will do, but he's not promising to stay out of the Justice Department's way.
"Just like we would not expect Justice to comply with a request from us that might compromise their role, we certainly are not going to agree to do anything just simply because the Department of Justice asks us," Reyes said.
Saltzburg, who served as an independent counsel in the Iran-Contra investigation 20 years ago, said the controversy over the destruction of the interrogation videotapes is so important that the congressional oversight committees may move ahead with its inquiries regardless of the impact on the criminal investigation.
"Now, I think Congress is of a mind to say that oversight matters, that Congress has a role to play in deciding what kinds of interrogation techniques are permissible, and that may be, in terms of American credibility and the world view of the United States, that may be more important for Congress to get this right than prosecuting every single person who might possibly be prosecuted for a crime that could be discovered," Salzburg said.
The announcement of the Justice Department investigation, in fact, raised some eyebrows on Capitol Hill.
Treating the destruction of the videotapes as the unauthorized — even criminal — act of a rogue official, could "mask" the issue of the administration's responsibility for CIA interrogation policies, one Democratic source said.