"Tapegate" Comes to the White House

By: Andrew Cohen
Topics: Field Notes

(CBS)

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.

The morning's big news — a New York Times story, which steers the CIA videotape scandal right into the heart of the White House and the Justice Department — is as important as it is unsurprising.

Naturally, when the touchy subject came up in 2005, the Administration's top legal officials were called upon to discuss the pros and cons of destroying material evidence about the CIA's interrogation tactics. Of course, at the center of these discussions were two presidential lackeys, then-Attorney General Alberto Gonzales and then-White House counsel Harriet Miers. And what would a controversial (and ultimately disastrous) executive branch action meeting be without the dark and ruthless presence of David Addington, then counsel to Vice President Dick Cheney?

This is precisely how this administration has fought the legal war on terrorism for the past half decade. Secret decisions about vital legal issues made without input from the judiciary and legislature. Poor judgments made by self-interested cronies or zealots for expansive presidential power. None of this is "news." We've all been here before. And no doubt over the next year we'll all be here again.

But if the Times story merely reaffirms what we kind of already knew about the administration's decision-making protocols it also significantly advances the Tapegate story in a way likely to complicate the future course of the story. It cannot now be sloughed off as a random act of senselessness by an overzealous spook. It cannot now be dismissed as a low-level (and low-brain-cell) operation. The stakes just got a lot higher.

For example, if the White House and Justice Department truly were aware of the plan to destroy the tapes, or if Miers and Gonzales actually approved their destruction, then Attorney General Michael B. Mukasey really should push to appoint a special prosecutor to investigate the matter. How can the Justice Department investigate the conduct of a former Attorney General without the existence of a conflict? You tell me.

Also, if the Times story is true, it ought to give energy and momentum to people like U.S. District Judge Henry H. Kennedy. Jr., who has scheduled a hearing for Friday to discuss whether the destruction of the tapes violated his June 2005 to preserve evidence that was relevant to a detainee case he had before him at the time. Now, federal lawyers will have a harder time standing up before him and arguing with a straight face that the Justice Department knew nothing about what happened.

And the Congress? The link from the CIA to Gonzales and Miers and Addington has enormous political ramifications as well as legal ones. Gonzales and Miers already are gone from the scene but will this latest episode finally turn some heat upon Addington, whom many regard as one of the most powerful (and heretofore least accountable) people within the entire executive branch? Will the Vice President himself have to answer questions about the judgments exercised upon his behalf? Sometimes, facts and logic arrive at the same place at the same time. They have here. The Tapegate scandal is going to get a lot nastier from here on in.

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