STEVE INSKEEP, host:
The president's legacy will also include significant changes to the nation's intelligence agencies and Congress is facing the question of how it should oversee those 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.
And NPR's Tom Gjelten reports that these parallel inquiries may now raise the question of which is more important.
TOM GJELTEN: 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 January 16th.
Representative SILVESTRE REYES (Democrat, Texas): There are a number of questions that 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.
GJELTEN: Democratic and Republican staffers have already 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. The acting CIA general counsel, John Rizzo, has voluntarily agreed to testify at next week's hearing.
Meanwhile, the Justice Department is moving ahead with its criminal investigation. Stephen Saltzburg of the George Washington University Law School says the destruction of the interrogation tapes could be a crime, even if no court had ordered that the tapes be preserved.
Professor STEPHEN SALTZBURG (George Washington University School of Law): It is possible to obstruct justice before an investigation begins, if the person who is destroying evidence has reason to believe that there will be some kind of a formal proceeding and the intent is to assure that this evidence is not available.
GJELTEN: If some agency official had been worried, for example, that 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 has subpoenaed Jose Rodriguez, the former CIA official who ordered that the interrogation videotapes be destroyed.
With a criminal investigation now underway, Rodriguez's lawyer is expected to advise him to take the Fifth, exercising his right against self-incrimination. In that case the House Committee could offer Rodriguez immunity to get his testimony, but that might then impede the criminal investigation.
Chairman Reyes says 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.
Rep. REYES: Just like we would not expect justice to comply with a request from us that might compromise their rule, we certainly are not going to agree to do anything just simply because the Department of Justice ask us.
GJELTEN: Stephen Saltzburg, who served as an independent counsel in the Iran-Contra investigation 20 years ago, says the controversy over the destruction of the interrogation videotapes is so important that the congressional oversight committees may choose to move ahead with their inquiries regardless of the impact on the criminal investigation.
Prof. SALTZBURG: Now, I think Congress is of a mind to say that oversight matters, that Congress has a role to play in deciding what kind 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.
GJELTEN: The announcement of the Justice Department investigation, in fact, raised some eyebrows in Capitol Hill. Treating the destruction of the videotapes as the unauthorized, even criminal act of a rogue official, in the words of one Democratic source, could mask the issue of the Bush administration's own responsibility for CIA interrogation policies and procedures.
Tom Gjelten, NPR News, Washington.
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