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Destroyed CIA Tapes Argued In Court

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By JOSH MEYER, Los Angeles Times

Published: December 22, 2007

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 destruction of the tapes 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 Friday 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 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 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 suggest that the government might have destroyed other evidence of torture or improper treatment of detainees at Guantanamo.

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.

Kennedy did not say when he would rule.

The judge said destruction of evidence would constitute a crime and he is 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."

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