Destroyed CIA tapes issue goes to court
on Dec 9, 2007 at 6:40 pm
Lawyers for 11 Yemeni detainees at Guantanamo Bay early Sunday asked a federal judge to begin a formal inquiry into the Central Intelligence Agency’s admission that it has destroyed two videotapes of the questioning of suspected terrorists using techniques that detainees’ lawyers believe involved torture.
 The judge was asked to hold a hearing promptly, as early as Monday morning, to go into the issue, perhaps with intelligence officials to be summoned for questioning. Lawyers for other detainees are expected to file similar requests, perhaps as early as Monday.
The first motion (download here) was filed shortly after midnight with Justice Henry H. Kennedy, Jr., in District Court in Washington in the case of Abdah, et al., v. Bush, et al. (docket 04-1254). More than two years ago, in June 2005, Judge Kennedy ordered the Bush Administration to “preserve and maintain all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay, Cuba.”
Most of the other District judges in Washington who had detainee cases before them issued similar preservation orders. After one judge did so, the attorneys made a point of forwarding the order directly to the CIA’s top officials in July 2005.
At the time of Judge Kennedy’s order, the judge said his action would not harm the government in any way because government lawyers had advised him that officials “will not destroy the information at issue.” In fact, in a filing before that judge on Jan. 12, 2005, Justice Department lawyers wrote that “there is no evidence of any document destruction in the instant case.” And, they added, the government has “numerous reasons…for ensuring the preservation of the documents in question.” They accused the detainees’ lawyers of advancing a “conspiracy theory.”
The identities of all of the detainees who were videotaped during interrogations have not been made public, but the CIA last week officially acknowledged the destruction of the videotapes some time in 2005 based on a decision made within the CIA itself. Agency lawyers had assured officials there that the methods used in the sessions were “lawful,” according to the CIA’s director, Michael Hayden. (The text of Hayden’s e-mail to agency employees about this is included as Exhibit D in the materials filed with Judge Kennedy.)
In asking for an emergency review early Sunday, the Yemenis’ attorneys said: “The revelation that the CIA destroyed these videotapes raises grave concerns about the government’s compliance with the preservation order entered by this Court. Those concerns warrant the Court’s immediate attention.”
The CIA acknowledged the destruction of the two tapes just as the New York Times, and perhaps other newspapers, were preparing to publish stories about the incident. Since the revelation, the Justice Department and the CIA have apparently begun investigations, according to press accounts Sunday morning.
Hayden’s e-mail to agency employees contended that CIA officials decided to destroy the tapes, to protect the identities of agency operatives involved, after concluding that the mateial was “no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries…”
The Hayden message does not give a date in 2005. The detainees’ request to Judge Kennedy for a preservation order was filed in court on Jan. 6, 2005, and the Justice Department responded to that motion on Jan. 12, 2005.
The developments in recent days raise the possibility of a further complication in the governments’ position in scores of detainees’ cases now pending in the D.C. Circuit Court. Much of the evidence the government used as the basis for continuing to hold the detainees at Guantanamo Bay was based, detainees’ lawyers assert, from interrogations of prisoners at the base in Cuba. If it should turn out, as lawyers suspect, that much of that evidence was obtained during torture sessions, its value could be diminished.
In asking Judge Kennedy for a preservation order, they cited FBI agents’ reports that “confirm” the allegations that torture was used at Guantanamo Bay. The reports were said to “include eyewitness accounts by FBI agents of ‘extreme interrogation techniques’ used against detainees at Guantanamo….Even the fragments that have been released contain shocking revelations.”
Lawyers in another detainee case, in asking for a similar preservation order, cited reports that a former interpreter at Guantanamo “has stated that at least one video of abuse of a detainee is missing from the records at Guantanamo.” That filing was made in July 2005.
