Judge eases back on tapes probe
on Feb 14, 2008 at 4:41 pm
A federal judge on Thursday refused to drop altogether or put on hold a probe into possible destruction of videotaped evidence that may bear upon the legal rights of a Guantanamo Bay detainee, but did narrow somewhat the scope of the judicial inquiry. U.S. District Judge Richard W. Roberts kept in force an order to Justice Department attorneys to file a report on any evidence relating to detainee Hani Saleh Rashid Abdullah, a Yemeni national, that might have been erased when the Central Intelligence Agency decided to destroy videotapes of interrogations of war-on-terrorism suspects. The judge did give the government more time — until March 17 — to file a new report. The judge’s order can be found here. An earlier post discussing his probe is found at this link.
Judge Roberts is the only federal judge known to be going forward with at least a limited inquiry into whether government officials violated court orders when tapes of interrogations were destroyed by the CIA some three years ago. A number of judges had ordered government officials not to destroy evidence that might figure in court review of Guantanamo detainees’ challenge to their captivity. Judge Roberts issued such an order in the Abdullah case in July 2005. His new order on Thursday rebuffed, at least in part, a broad suggestion by the Justice Department that his inquiry would interfere with a Justice Department criminal investigation into whether any laws were broken by the videotapes’ destruction.
Expressing some discontent with government officials’ response to an order he issued Jan. 24 opening his inquiry in the Abdullah case (Abdullah v. Bush, District Court docket 05-23), Judge Roberts suggested that some parts of the response did not provide the answers he had sought, and other parts of it may have actually been misleading. Nevertheless, he said, “to reduce the possibility of interference with the ongoing criminal investigation,” he would not require the government now to tell him what had been done between July 2005 and January 2008 what they had done to obey his 2005 order to preserve evidence. That is the time period that the Justice Department has told him is the focus of the criminal investigation on the fate of the CIA tapes.
When he opened his inquiry last month, he posed three questions — what had been done to obey the preservation order between July 2005 and January 2005, what was being done now to assure that order was obeyed, and “what is the nature of any evidence” potentially subject to his preservation order “that has been destroyed or otherwise spoliated.” He asked for answers to those inquiries by Feb. 14 — today. The Justice Department on Feb. 8 did file a report, including a fairly detailed description of the scope of the criminal investigation, along with statements by government officials on what they were doing now to preserve potential evidence. But, at the same time, the Department asked the judge not to require any further report, particularly as it might bear on what was done after July 2005 to save evidence, and it asked the judge to stay the order so far as it required any information about destruction of CIA tapes.
The judge’s order did not go nearly that far. It did withhold the requirement for a report on past compliance efforts, but insisted on a report on identifying any evidence possibly covered by his preservation order that might have been destroyed. That is the report due March 17.
