Over the objections of the Justice Department, a federal judge said Tuesday he would explore whether the U.S. had violated a court order to preserve evidence when the CIA destroyed videotaped interrogations of two terrorism suspects in 2005.
U.S. District Judge Henry H. Kennedy Jr. set a hearing for Friday in Washington in response to a request from Yemeni prisoners who are challenging their detention by the U.S. at the military prison at Guantanamo Bay, Cuba.
Much of the evidence against the defendants consists of accusations by other prisoners, whom the lawyers think may have been coerced.
The issue of coercive interrogations has taken on new primacy after disclosures this month that the CIA had destroyed videotapes of interrogations of purported Al Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri.
The tapes were destroyed by a CIA official in November 2005, at a time of growing congressional and public concern about U.S. tactics in the war on terrorism, including interrogation techniques.
It was also five months after Kennedy, in the case of the Yemeni prisoners, issued an order requiring that the U.S. preserve and maintain "all evidence and information regarding the torture, mistreatment and abuse of detainees now" at Guantanamo Bay. According to court papers, government lawyers said at the time that a formal order was not necessary because they were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation."
Destroying evidence relevant to a legislative or judicial proceeding could constitute obstruction of justice. Kennedy could also sanction the government in the case of the Yemeni defendants if he found that the U.S. had violated his order.
In court papers filed last week, the Justice Department argued that the videos weren't covered by the order because at the time Zubaydah and al-Nashiri were being held in secret CIA prisons overseas. The men were later transferred to the Guantanamo Bay prison.
Government lawyers also said that a judicial inquiry would be "unnecessary and potentially disruptive" in light of a pending Justice Department inquiry into whether crimes were committed when the tapes were destroyed. The department's national security division, in conjunction with the CIA inspector general, is conducting a preliminary investigation.
Citing that inquiry, the department last week informed senior congressional leaders that neither it nor the CIA would cooperate with congressional investigations into the destruction of the tapes.
"Plainly the government wants only foxes guarding this henhouse," the defense lawyers in the Yemeni cases said in a filing with the court Monday. Some congressional leaders have said they intend to pursue their own investigations without the agencies' cooperation.
The decision by Kennedy, a 1997 appointee of President Clinton who once ruled that the Bush White House had to preserve backup e-mails sought in a lawsuit about possible violations of federal records laws, was a setback for the department, which has sought to limit the escalating furor over the tapes.
"Obviously, if accusations against our clients have been obtained by torture, their credibility would be seriously undermined," said David Remes, a Washington lawyer for the Yemeni defendants. "The government has shown here, with the destruction of the CIA tapes, that it is prepared to destroy evidence of its own misconduct, and where there is smoke, there is fire."
White House Press Secretary Dana Perino declined to answer questions about the order, referring reporters to the Justice Department.
A spokesman for the Justice Department, Erik Albin, declined to comment.
Also on Tuesday, Sen. Edward M. Kennedy (D-Mass.) asked the FBI to turn over any copies of recordings it had of the two interrogations. An FBI spokesman said the bureau would review the request, although a senior FBI official said the bureau had never received copies of the tapes.
Times staff writer Josh Meyer contributed to this report.