Legal fight breaks out over destroyed CIA tapes

The controversy over destroyed CIA interrogation tapes is shaping up as a turf battle involving the courts, Congress and the White House, with the Bush administration telling its constitutional equals to stay out of the investigation.

The Justice Department says it needs time and the freedom to investigate the destruction of hundreds of hours of recordings of two suspected terrorists. After Atty. Gen. Michael B. Mukasey refused congressional demands for information Friday, the Justice Department filed late-night court documents urging a federal judge not to begin his own inquiry.

The administration argued it was not obligated to preserve the videotapes and told U.S. District Judge Henry H. Kennedy that demanding information about them “could potentially complicate the ongoing efforts to arrive at a full factual understanding of the matter.”

The documents represent the first time the government has addressed the issue in court. In the papers, Acting Assistant Atty. Gen. Jeffrey S. Bucholtz said Kennedy lacked jurisdiction, and he expressed concern that the judge might order CIA officials to testify.

Congressional inquiries and criminal investigations frequently overlap, and it is not uncommon for the Justice Department to ask lawmakers to ease off. The request for the court to stand down is more unusual. Judges take seriously even the suggestion that evidence was destroyed, but they also are reluctant to wade into political debates.

Legal experts say it will be up to Mukasey, a former judge who only recently took over as the nation’s chief law enforcer, to reassure Congress and the courts.

“We’re going to find out if the trust Congress put in Atty. Gen. Mukasey was well-placed,” said Pepperdine University law professor Douglas W. Kmiec, who served in the Justice Department during the Reagan administration. “It’s hard to know on the surface whether this is obstruction or an advancement of a legitimate inquiry.”

Kennedy ordered the administration in June 2005 to safeguard “all evidence and information regarding the torture, mistreatment and abuse of detainees now at the” military prison at Guantanamo Bay, Cuba.

Five months later, the CIA destroyed the interrogation videos, which involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri.