Someone may ultimately get convicted of something in connection with the destruction of CIA videos showing the torture of two terrorism suspects, but if so it will be along the lines of lying to Congress or criminal contempt, not anything having to do with torture.

That’s because the Military Commissions Act of 2006 amended the War Crimes Act of 1996 to immunize U.S. government employees against prosecution for doing the things the videos are supposed to have documented. They couldn’t be used as evidence in a prosecution for war crimes, at least not in this country, because for now, at least, no one can be prosecuted for war crimes. Accordingly their destruction couldn’t be considered obstruction of justice, since that’s a crime that requires the possibility of justice in the first event.

Congress could repeal or amend the Military Commissions Act to remove the immunity provision, but that would require an effort by the Democratic majority of a sort that they’re apparently constitutionally (the temperament, not the document) unequipped to undertake.

It appears that no one in the CIA or the White House ordered that the videos be preserved. It’s possible that Dick Cheney’s chief of staff, David Addington, encouraged their destruction, just as other administration lawyers apparently encouraged, but didn’t order, their preservation. But unless someone can show that Addington did so with the purpose of foiling an investigation, of which there weren’t any at the time, or of defying a court order compelling the Justice Department to produce materials that might have included the videos, so what? At least four members of Congress—the Gang of Four, consisting of the chairs and ranking minority members of the House and Senate intelligence committees—knew about the videos and did nothing to preserve them either. If Addington is guilty of something, so are they.

Congress has made torture effectively legal. That should be a much larger scandal than the question of who was or wasn’t involved in destroying the evidence of an unprosecutable crime. In the end, investigations into the videos will result in nothing other than very large legal bills for a number of people; enough to ruin the small fry while leaving others unscarred. And meanwhile, Congress continues to enable the administration’s adventures in illegal war, surveillance and who knows what else. Their time would be far better spent on rectifying those oversights (yes, pun intended) than on pursuing what will prove to be a pointless excercise in chest-beating.