Broad court inquiry on CIA tapes doubtful
on Dec 21, 2007 at 1:58 pm
UPDATE Saturday a.m.  The transcript of Friday’s hearing can be found here.
A federal judge in Washington, D.C., reacted skeptically Friday to a request to make a sweeping inquiry into whether government agencies have mishandled or destroyed evidence that may bear upon whether detainees at Guantanamo Bay, Cuba, have been tortured or otherwise abused. But U.S. District Judge Henry H. Kennedy Jr. gave no clear hint of whether he might do something short of a broad probe of the Central Intelligence Agency’s public admission that it has destroyed two videotapes of harsh interrogation techniques on two Al-Qaeda terrorism suspects.
Whether the judge does anything immediately may be influenced by two promises he sought and received from a Justice Department lawyer: that the government’s internal probe of the tapes destruction will include an inquiry into whether any court orders to preserve such evidence have been violated, and that, if such a violation turns up, the judge will be told so that he can decide whether to pursue it as a judicial matter in addition to any possible criminal prosecution that the Department might pursue.
The Justice Department lawyer, Joseph Jody Hunt, also made a point of assuring the judge that the government was not questioning his jurisdiction to probe whether there had been a violation of the judge’s own evidence-preservation order, issued on June 10, 2005, before the CIA destroyed the videotapes. Hunt continued to argue, though, that Kennedy has no jurisdiction to provide any relief to Guantanamo Bay detainees on their challenge to continued detention — a point that the judge at least temporarily seemed to concede, although he noted that the issue was under review now by the Supreme Court in the Boumediene v. Bush cases (06-1195 and 06-1196).
During a 55-minute hearing at the U.S. Courthouse at the foot of Capitol Hill in Washington, Judge Kennedy showed some displeasure that lawyers for Guantanamo detainees were now asking him to make a broader inquiry than they had originally proposed on Dec. 9 after first learning of the destruction of the CIA tapes. “What you are seeking,” the judge told detainees’ lawyer David H. Remes, “is something fundamentally different from your motion filed on Dec. 9.” The judge indicated that he had called Friday’s hearing only on the original plea, to start an inquiry into whether his 2005 preservation order had been violated.
In later filings since the Dec. 9 motion was offered, detainees’ counsel had sought a broader inquiry, into whether the destruction of the CIA tapes indicated that the government may have generally been irresponsible about preserving evidence that the detainees would need in court to challenge their continued imprisonment. Remes said he thought those later filings had put the government on notice that the detainees were seeking more than they had originally asked.
But Remes also sought to assure the judge that, even if the judge were to go beyond his own preservation order and its possible violation, the detainees’ counsel would be seeking only “an extremely modest” overall inquiry that would not necessarily require that government officials in on the tapes destruction, or who gave legal advice about it, be summoned to court to testify and be questioned.
The judge stressed at the opening of the hearing that he had not yet ruled on whether he would make any kind of inquiry into the videotapes’ destruction, and agreed to hold the session just to find out what such an inquiry would seek to accomplish, and what it would entail.
Government lawyer Hunt urged the judge, as the Department had earlier in a court filing responding to the detainees’ motion, not to go ahead with any inquiry. Hunt said that might influence how potential witnesses reacted when summoned to testify in the government’s internal criminal investigation and might damage that probe.
The judge showed some sympathy for the need at this point to defer to the government’s own probe.  He asked Remes: “Why should the court not permit the Department of Justice to do this?…The Department of Justice has said it will investigate. Why shouldn’t the court permit the Department of Justice to do that? It is the law-enforcing agency.” He said that a violation of his court order “is like a crime; some say it is a crime.”
Remes replied that the detainees were not asking the judge to “compete” with either the government’s internal investigation, or the planned inquiry by several congressional committees. Those investigations, he said, were limited to the destruction of two videotapes and possibly one audiotape, but the court inquiry the detainees want would be broader in order “to protect the integrity” of its orders and “the integrity of the judicial system.”
The judge at the close gave no indication when he would rule.
