Judge hesitates to probe tape-burning

0 Comments | Deseret News (Salt Lake City), Dec 22, 2007 | by Josh Meyer Los Angeles Times

WASHINGTON -- A federal judge appeared reluctant Friday to investigate the destruction of CIA interrogation videotapes, saying the Justice Department is conducting its own inquiry.

U.S. District Judge Henry H. Kennedy heard arguments on whether he should hold a hearing on the CIA's destruction of the videotapes in November 2005. The destruction occurred five months after Kennedy had issued an order specifically telling the government to preserve "all evidence and information regarding the torture, mistreatment and abuse of detainees now" at the U.S. military detention facility at Guantanamo Bay, Cuba.

Lawyers for several Yemeni prisoners at Guantanamo told the judge that he should investigate the matter because of recent disclosures by the CIA that it had made videotapes of its interrogations of suspected senior al-Qaida leaders Abu Zubaydah and Abd al-Rahim al- Nashiri in 2002 and then destroyed them three years later.

Critics suspect the tapes contained evidence of waterboarding, which international human-rights groups have denounced as torture.

David H. Remes, a lawyer for the Yemeni men, told Kennedy that the CIA's disclosures suggest that the agency might have violated the court order because it has refused to comment on whether Zubaydah and al-Nashiri were being secretly held at Guantanamo when he issued it.

Remes also said the CIA disclosure and other information that has come to light suggest that the U.S. government might have destroyed other evidence of torture or improper treatment of detainees at Guantanamo.

"Once a party has admitted to destroying evidence, there is no reason to believe that they wouldn't continue to destroy evidence," he said.

Remes said that is pertinent to his case because those detainees might have unfairly implicated his clients in terrorist activities under duress, and he asked the judge to investigate the broader issue of potential evidence destruction at Guantanamo as well.

"Where there is smoke, there is fire," Remes said.

Lawyer Joseph "Jody" Hunt, representing the White House, told the judge that the tapes destroyed by the CIA had no bearing on the case of the Yemeni men.

"It is inconceivable that the destroyed tapes could have been about abuse, mistreatment or torture of detainees at Guantanamo Bay," he said.

The videotaped interrogations of Zubaydah and al-Nashiri were made before either of the men was taken to the detention facility in Cuba, Hunt said.

President Bush announced their transfer to the facility in September 2006, along with 12 other suspected "high value" al-Qaida detainees who had been held in secret jails overseas by the CIA.

Hunt also asked the judge to refrain from conducting his own investigation because it could influence the inquiry underway by the Justice Department and CIA inspector general. That probe will look specifically at the issue of whether the government violated any court orders, including Kennedy's, Hunt said.

If the Justice Department inquiry concludes that Kennedy's court order was violated, it would notify the judge directly, Hunt said.

Kennedy did not say when he would rule on Remes' request for an investigation into the narrow issue of whether his court order was violated or his broader request to determine whether any other destruction of evidence at Guantanamo might have occurred.

But he said that destruction of evidence would constitute a crime and that he was not an investigating magistrate such as those in France who are charged with conducting inquiries into criminal activity.

"Why should the court not permit the Department of Justice to do just that?" Kennedy asked. "It is a law-enforcement agency of this country."

Remes responded that the Justice Department inquiry is limited to the destruction of the two videotapes and not into the broader issue of whether any evidence of coercive interrogation techniques at Guantanamo that relates to his clients was destroyed.