As an outsider it seems to me the system is broken if a flight crew (or airline) can accidentally or intentionally overwrite the tapes, which contain critical evidence. Clearly ATC was aware of the incident. Why not provide ATC with authority to ground the plane until the tapes are pulled? No doubt this is not normally part of their domain or routine practice, but not sure who else can be trusted. I certainly don't trust the airline or the pilots who were involved in a near miss.