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Immunity Off-Limits
Washington Post
January 12, 2008

IN ONE respect, Jose A. Rodriguez Jr. is a lucky guy, despite being the focus of media and law enforcement attention for allegedly authorizing the destruction of CIA tapes that may have depicted the harsh interrogation of two al-Qaeda suspects. The silver lining for Mr. Rodriguez, a former chief of clandestine operations at the CIA, is that he is represented by Robert S. Bennett, a savvy lawyer with a long and bipartisan track record of successfully representing high-profile Washington figures, including former president Bill Clinton.

Mr. Rodriguez has been subpoenaed to appear before the House intelligence committee next week, and Mr. Bennett has said he won't allow his client to testify without immunity -- as any lawyer worth his salt would do, especially when the Justice Department has already launched its own investigation. Generally, when a witness testifies before Congress under a grant of immunity, prosecutors are not allowed to use the testimony unless they can prove they obtained the same information independently. This is a difficult hurdle to clear and a major reason that courts threw out the criminal case against Iran-contra defendant Oliver L. North.

There is no indication that the committee is poised to grant Mr. Rodriguez immunity, and we urge the committee to stand its ground and rebuff Mr. Bennett's request.

There is reason to believe that the Justice Department under Attorney General Michael B. Mukasey will proceed diligently with its investigation. Mr. Mukasey recently ratcheted up the department's CIA tapes inquiry into a full-blown criminal investigation and named as lead lawyer John H. Durham, a veteran prosecutor with an impressive record on tough cases involving organized crime and public corruption. The pressure on Mr. Mukasey and the department to provide a thorough and above-reproach investigation increased on Wednesday, when Judge Henry H. Kennedy of the U.S. District Court for the District of Columbia declined to conduct his own investigation into the tape destruction. Judge Kennedy is presiding over the cases of detainees at Guantanamo Bay who are challenging their detention and treatment and who argued that the content of the tapes could be relevant to their cases; the judge deferred the matter while the Justice Department is investigating.

Parallel congressional and criminal investigations are not uncommon, but Congress should continue to tread very carefully. Nothing, however, should stop lawmakers from continuing to press ahead aggressively with an examination of past and current Bush administration policies on detentions and interrogations.

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