Washington Post editorial
Monday, April 26, 2010, p. A14
There is always a tricky balance when Congress investigates a matter that is also the subject of a criminal prosecution. Congressional investigators understandably want access to witnesses and evidence. Government officials, especially in law enforcement, understandably don’t want to divulge anything that might complicate their case. The easy solution — putting off the congressional inquiry until the conclusion of criminal proceedings — frustrates lawmakers’ ability to conduct a timely inquiry. This always difficult balance gets even trickier when the congressional inquiry centers on the government’s role in the matter being investigated. The inevitable battles over access to documents and witnesses get snarled in questions about whether refusal to provide the requested material is motivated by legitimate concerns or by the instinct for bureaucratic self-preservation.
This classic tug of war is playing out now in a dispute between the Senate Homeland Security and Governmental Affairs Committee and the Obama administration over the panel’s investigation into last fall’s shooting at Fort Hood, Tex. The committee’s chairman and ranking Republican, respectively Sens. Joseph I. Lieberman (I-Conn.) and Susan Collins (Maine), have taken the dramatic step of subpoenaing the Defense and Justice departments. The committee is looking into what advance warning the Army or others had about the risks posed by the accused Fort Hood shooter, Maj. Nidal M. Hasan.
The committee is clearly entitled to some, if not all, of the evidence it seeks. In response to a request for Maj. Hasan’s personnel records, the Defense Department told the committee that its "long-standing" practice is to provide that material only to the Senate Armed Services Committee, because of its role in confirming promotions. That is no excuse for denying the Homeland Security committee access.
Likewise, the confidential annex prepared by the Defense Department’s internal review board, which was shared with the Armed Services Committee, should also be turned over to the Homeland Security panel. And the committee is entitled to the summaries and transcripts of witness interviews. If the review board, which is not part of the prosecution team, can be trusted with this information, so can the committee.
Direct witness interviews of FBI and Defense Department agents who investigated Maj. Hasan’s potential terrorist ties before the shootings are a harder call because of the risk of interfering with the criminal case. The risk may be remote; the committee’s interviews would be conducted in closed depositions. Despite the administration’s assertions, there are clear precedents for having a congressional inquiry interview line agents even when a criminal prosecution is pending; the case of Zacarias Moussaoui is the most pertinent example. Moreover, the FBI deputy director — not a part of the prosecution team — has already interviewed the agents whom the committee is seeking to question. Still, the more prudent path would be to start with documents first and proceed carefully from there.
Maj. Hasan is accused of killing 13 people, a horrendous crime for which he should be severely punished if convicted. But there is every reason to think that the system also went badly wrong. If congressional inquiries are stymied every time there is a pending criminal case, fixing the flaws for the future will be that much harder.