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January 3, 2008

Zelikow: This Is Not 20 Questions

Yesterday, Michael Mukasey appointed a prosecutor to begin a criminal investigation into the destruction of tapes by the CIA depicting, among other actions, interrogations of al-Qaeda terrorists using waterboarding. The destruction of the tapes came two years after a commission appointed by Congress and the President requested all relevant materials to the CIA's efforts before and after 9/11 to counter the threat from al-Qaeda. Not only did the CIA fail to provide the tapes, they never even told the 9/11 Commission they existed. In fact, the CIA told the commission -- as well as the federal court trying Zacarias Moussaoui -- that no such recordings ever existed, either through omission (with the Hamilton/Kean panel) or commission (the Moussaoui trial).

Some have questioned whether the former, at least, amounts to criminal obstruction. Former Bush administration official and 9/11 Commission staffer Philip Zelikow writes to my friends at Power Line to clarify this point:

I have been careful not to accuse anyone of committing crimes. But it is important to understand that, under the applicable federal law, this is not a parlor game of "twenty questions." Under the applicable federal criminal law, our written and very detailed requests established certain issues as being material to our investigation. Officials were obliged by law to provide any responsive information in their possession (or withhold with a claim of privilege) and they were obligated not to conceal, knowingly, any fact related to such material issues. In addition to the various discussions at staff levels, Lee Hamilton pointedly reminded DCI Tenet and his chief aides of the breadth of their obligation at a meeting, one occasioned by these very issues, on December 23, 2003.

Zelikow has this correct. Once a duly appointed commission or a court requested these kinds of materials, the CIA had a positive duty to either provide them or explain why they couldn't. Lying about it in either case constitutes obstruction, and destroying the tapes later also qualifies as obstruction as well. Zelikow and the court were not obligated to cast their requests in the form of a Sanskrit heroic poem or dance on the heads of pins until they reached the magical word combination of "Open, Sesame". They made clear the nature of the material they requested, and the CIA had an obligation to answer honestly.

Quite frankly, this is so fundamental to the rule of law that it shouldn't even be open for debate. Federal agencies of all kinds have to comply with Congress, the executive, and the judiciary; the destruction of these tapes (and the previous lies about their existence) defied all three. Unless we like the notion of bureaucracies operating with impunity, with no oversight whatsoever, and able to impose their will without restriction, then we have to object to the CIA's actions in this regard and conduct a real and credible investigation to determine whether obstruction occurred, by whom and ordered by whom.

Mukasey has done the right thing. John Durham is a good choice to conduct a credible, thorough, and fearless probe into what looks strongly like significant wrongdoing and determine its potential criminality. Conservatives -- who mistrust government power and the powerful bureaucracies it spawns -- should be the front row of the cheering section.


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