As judge orders CIA tape inquiry, Mukasey faces first test

He had asked that the Justice Department handle the probe.

The matter of the Central Intelligence Agency interrogation tapes – and questions about who should investigate their destruction – may be Attorney General Michael Mukasey's first big challenge at the Department of Justice.

Mr. Mukasey has asked Congress and the courts to let his department and the CIA handle the initial probe. Outside inquiries might complicate Justice efforts to figure out what really happened, said Mukasey in a Dec. 14 letter to a US district judge.

But key lawmakers are not pleased about being told to mind their own business. They've vowed to defy the Bush administration and proceed on their own.

Given the tangle of constitutional checks and balances involved and that many of the facts surrounding the case remain secret, it's not clear who should have precedence here, say some legal experts.

"It's more of a political than a legal question at this point," says Andrew Kent, an associate professor at Fordham Law School in New York.

The next development in the controversy could come as early as Dec. 20, when the House Judiciary Committee has scheduled a hearing on the interrogation of detainees. Rep. John Conyers (D) of Michigan, the panel's chairman, has asked the Department of Justice to provide a high-level official to testify at the hearing.

Congressional and Executive branch investigations often proceed at the same time, asserted Representative Conyers in a letter to Mukasey.

So the administration inquiry "should not be used as a shield against proper and necessary oversight," wrote Conyers.

The tapes at issue were made in 2002, and reportedly depict hours of interrogations of at least two Al Qaeda suspects, including the use of harsh techniques such as waterboarding.

They were destroyed in 2005. The CIA has cited the concern that, if leaked, the tapes would reveal the identity of the interrogators and possibly subject them to retaliation.

Human rights groups have charged that powerful images of US interrogators engaging in harsh techniques would cause an international uproar. The tapes might also be used in legal proceedings against the interrogators and other officials.

One question is whether the tapes' destruction violated a federal court order.

In June 2005, US District Judge Henry Kennedy ordered the government to safeguard all evidence regarding possible torture, mistreatment, and abuse of detainees at the US prison at the Guantánamo Bay, Cuba, Navy base.

The Justice Department has argued that the destroyed tapes were not covered by this order, as the suspected terrorists involved – Abu Zubaydah and Abd al-Rahim Al-Nashiri – were not at Guantánamo at that time.

But Judge Kennedy has rejected the Justice Department's request that he now stay out of the matter. He has ordered administration lawyers to appear before him on Dec. 21 and explain their actions.

A second question is whether Congress should also investigate why the tapes were shredded. Both the House and Senate Intelligence Committees, as well as House Judiciary, have expressed interest in mounting their own inquiries.

The call of Capitol Hill to get involved is at least partly bipartisan. The top Republican on the House Intelligence panel has joined his Democratic counterparts in pledging to investigate the destruction of the tapes.

Rep. Peter Hoekstra (R) of Michigan charged that the intelligence community has been incompetent, arrogant, and political.

"We want to hold the community accountable for what's happened with these tapes," said Representative Hoekstra in a broadcast interview. "I think we will issue subpoenas."

Assistant Attorney General Kenneth Wainstein and CIA Inspector General John Helgerson are the lead administration officials for the executive branch probe.

They have indicated to Congress that they feel any congressional inquiry will hamper them because it may interfere with their ability to call witnesses and review documents in a timely manner.

Critics have dismissed this assertion and complained that the administration is trying to upset the constitutional system of checks and balances.

"The administration's attempt to obstruct legitimate and critical investigations into the destruction of CIA interrogation videotapes is stunning," says Anthony Romero, of the American Civil Liberties Union. "It is a bold and shameless frontal assault on the oversight roles of both Congress and the courts."

Others say that one problem for Attorney General Mukasey is that he is inheriting the mistrust generated by his predecessor, Alberto Gonzales.

"The Department of Justice's reputation recently is not all that it could be," says Carl Tobias, a law professor at the University of Richmond.

Yet judges are not equipped to lead full-scale investigations. Congress is – but it is about to go on recess. It might not get momentum to investigate the destroyed tapes until the spring. "They all have legitimate claims here," says Mr. Tobias. "But I think Congress is well within its prerogative to move forward."

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