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Secrets, Lies and Destroyed Videotapes

4838237It's been a good day for proponents of government transparency, a good day but no more than a productive start toward unraveling some of the most important secrets of our legal (and sometimes illegal) war on terrorism.

First, the Justice Department early Monday was forced to admit to a federal judge that the Central Intelligence Agency has destroyed at least 92 videotapes, some of which may contain images of "enhanced interrogation sessions" with detainees. Spies routinely destroy evidence of their own work. That's often what makes them good spies. But the scope and timing of the destruction of the evidence warrants far more public attention than it has so far received.

Although there is usually great separation between truth and fact when it comes to the intelligence community, it looks quite clearly as though CIA officials during the Bush Administration deliberately deceived the 9/11 Commission, and the federal courts, by destroying tapes that had been formally requested by those bodies. Could the courts hold the CIA and/or its officials at the time in contempt for such conduct? If not, are there any other remedies available that would create some sort of future disincentives to such conduct? The Obama Administration must decide—and the sooner the better.

Next, later on Monday, the Justice Department voluntarily released (PDF) nine sensitive memos, written by Office of Legal Counsel officials during the first half of the Bush presidency, which also focused upon the nation's response to the legal war on terrorism. These memos will help historians, and modern-day experts, define some of the now-shadowy contours of the official justification for terror-law initiatives like the government's domestic surveillance and rendition programs. Watch for important stories about these topics in the coming days and weeks as the new information is distilled by journalists and others.

In the meantime, the release of the OLC memos begs the question of whether the Obama Administration intends to take any affirmative formal measure—like the creation of a Torture Truth Commission—to identify the many legal and procedural mistakes that were made during the first years after the terror attacks upon America. It's one thing to publish outdated legal memos, some of which were dismissed as soon as they were distributed. It's another thing to engage in a meaningful investigation into the government's response to terrorism so that we can avoid some of the same problems in the future.

Of course, such an investigation didn't make much of a difference to those CIA officials who destroyed tapes that were subject to a court order or Commission or Congressional subpoena. That's why it is so important for civil libertarians in and out of office, who have pushed so hard to get the Obama Administration to come this far, should keep pushing even harder. The American people are still due a far fuller accounting than they have received so far about what former officials did, and did not do, in their name.

Andrew Cohen is a CBS News legal analyst.

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