The Bush administration has made its position clear in legal filings and now gets a chance to say it to a judge in open court: Hold off on inquiring about the destruction of CIA videotapes that showed suspected terrorists being interrogated.
U.S. District Judge Henry H. Kennedy ordered the hearing Friday over the objection of the Justice Department after lawyers raised questions about the possibility that other evidence also might have been destroyed.
Kennedy, appointed to the trial court by President Clinton, is considering whether to delve into the matter and, if so, how deeply.
The hearing marked the first time that administration lawyers were to speak in public and under oath about the matter since the CIA disclosed this month it destroyed the tapes of officers using tough interrogation methods while questioning two al-Qaida suspects.
Kennedy is presiding over a lawsuit by Guantanamo Bay prisoners who are challenging their detention. The judge had ordered the government not to destroy any evidence of mistreatment or abuse at the Navy base in Cuba.
Because the two suspects — Abu Zubaydah and Abd al-Rahim al-Nashiri — were being held overseas in secret CIA prisons, however, they are likely not covered by the order.
The tapes could be covered by a more general rule prohibiting the destruction of any evidence that could be relevant to a case. For example, if the tapes showed Zubaydah discussing any of the detainees in Kennedy’s case, their destruction could have been prohibited.
Lawyers for both sides have filed classified documents regarding the tapes. That means there is a good chance Kennedy already knows whether the videos are relevant to his case.
If the judge believes the CIA destroyed the tapes to keep them from being used in court, he could side with the detainees’ lawyers and order the government to disclose all the evidence it has collected, including any other evidence in addition to the tapes that has been destroyed.
He could order government officials to testify in court about the tapes, which were created in 2002 and destroyed in 2005.
The government has strongly urged against this move, saying it would disrupt a joint Justice Department-CIA investigation into the tapes. In court documents, acting Assistant Attorney General Jeffrey S. Bucholtz was concerned that Kennedy might order testimony that “could potentially complicate the ongoing efforts to arrive at a full factual understanding of the matter.”
A congressional investigation is under way too. The CIA invited Capitol Hill investigators to the agency’s Virginia headquarters Thursday to begin reviewing documents and records relating to the videotapes.
Kennedy could side with the Justice Department and agree there is no evidence the government acted improperly and, therefore, no reason to order anything else. Or he could say he lacks the authority to act because the videotapes were not related to his case.
Kennedy was as a federal prosecutor during the Nixon and Ford administrations until he was named a federal magistrate judge in 1976. President Carter appointed him to be a judge in the District of Columbia’s courts and Clinton named him to the federal bench.