Two leading Democrats, Jane Harman and Jay Rockefeller admitted that they knew that the CIA intended to destroy the tapes of interrogations of a leading al-Qaida figure, but never knew for sure that the destruction was carried out. The startling news raises serious questions of acts of malfeasance by the Bush Administration and nonfeasance by Democratic members.

In his defense of this breathtaking decision to destroy evidence being sought in federal courts, Gen. Hayden claimed:

“The tapes posed a serious security risk,” Hayden wrote. “Were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from al-Qaida and its sympathizers.”

The important thing to remember is that in 2002, many people were publicly discussing criminal charges for those who carried out the president’s orders to torture suspects. I testified in Congress about criminal acts that appear to have been ordered by the President and wrote about the fact that both illegal surveillance and torture are criminal offenses. Indeed, Administration officials complained about such threats for its employees. The decision appears to have been to destroy the evidence — despite the fact that the tapes were being sought by federal courts and would most certainly be sought in future proceedings in Congress and the courts.

These Democratic members appear to have had knowledge of both the official use of torture (which is a crime) and the stated intention to destroy evidence (which is also a crime). Yet, again, they remained totally silent and passive. They remained silent and passive even while courts were lied to by the government in high-visibility cases. They remained silent and passive even as a public debate swirled around these very issues.<

Moreover, if Democratic members knew, so did the President of this plan. It now remains up to the untainted Democrats to act and demand answers from everyone, including their own party. This is a matter that raises serious criminal allegations that run from officials engaged in torture to government lawyers engaged in false statements to a president who ordered the commission of an act defined as a war crime. While the Democrats have struggled to protect the President from a confrontation on torture (as with the Schumer and Feinstein vote on Mukasey), they will now need to protect themselves against their own constituents.

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