Judge reluctant to probe CIA’s destruction of tapes

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 Jr. heard arguments on whether he should hold a hearing on the CIA’s controversial destruction in November 2005 of the videotaped interrogations of two terrorism suspects. The tapes were destroyed five months after Kennedy had specifically ordered 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 Yemeni prisoners at Guantanamo told the judge that he should investigate the matter because of recent disclosures by the CIA that the agency had made videotapes of its 2002 interrogations of suspected senior Al Qaeda leaders Abu Zubaydah and Abd al-Rahim al- Nashiri and destroyed them three years later.

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

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

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.

He said that was pertinent to his case because any detainees tortured during questioning might have unfairly implicated his clients under duress. Remes 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.

Attorney Joseph “Jody” Hunt, representing the White House, told the judge that the tapes destroyed by the CIA had no bearing on the Yemeni men’s case.

“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 man 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 Qaeda detainees who had been held in secret overseas jails 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 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 whether his court order was violated, or the broader request to determine whether evidence from Guantanamo was destroyed.

But Kennedy noted 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 was limited to the destruction of the two videotapes -- not into the issue of whether any evidence of coercive interrogation techniques at Guantanamo that relates to his clients was destroyed.

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josh.meyer@latimes.com