Checking Cheney’s story

It is all too easy to assume the worst about former Vice President Dick Cheney. His record of deception and manipulation makes it more than plausible that he improperly instructed intelligence officials to conceal from the appropriate congressional committees information about a secret Bush-era program to capture or kill terrorists.

Less clear is whether the law required this information to be shared. Under the National Security Act of 1947 and its many amendments, the director of Central Intelligence “shall keep the congressional intelligence committees fully and currently informed of all covert actions which are the responsibility” of the government. The program described by intelligence sources -- creating paramilitary teams capable of pursuing Al Qaeda leaders in Afghanistan and Pakistan -- certainly would require congressional notification if it became operational, but the sketchy reports on it so far do not definitively answer the question of whether it had grown beyond internal discussions and evolved into “covert action,” as anticipated by the act. Apparently, money had been spent on the program and effort had been expended to develop it, suggesting that notification was warranted, but the teams themselves never were on the verge of being deployed, arguing that notification might have been premature.

That sort of ambiguity -- a disputed issue of fact posed against an established statute -- demands investigation. Fortunately, this case lends itself to a sensible inquiry: The Senate Intelligence Committee, which already is probing the Bush administration’s embrace of torture, should add this topic to its agenda. The committee needs to act prudently, both to safeguard national security and to preserve the possibility of criminal prosecution. This is not the time to convene hearings or immunize witnesses. As we have noted before, that could corrupt a future prosecution, and as long as there is the possibility that crimes were committed, congressional zeal and political opportunity must give way to prosecutors who may find, in the same record, violations of the law.

Atty. Gen. Eric H. Holder Jr. appears to be moving ahead methodically. He has indicated a willingness to assign a criminal prosecutor to the persistent allegations that some operatives may have exceeded legal authority in torturing detainees. That too is the right course. If crimes have been committed, prosecutors should examine the evidence and make a sober determination about whether to bring charges. Congress, meanwhile, has the opportunity to assess Cheney’s actions and, if appropriate, to turn over its evidence to the Justice Department. Although President Obama would prefer not to look back, there is a difference between focusing on the future and turning a blind eye toward the past.