[Guest post by DRJ]
Acting on a motion by attorneys for GTMO detainees, US District Judge Henry H. Kennedy set a hearing Friday to consider the destruction of CIA waterboarding videotapes:
“A federal judge has ordered a hearing on whether the Bush administration violated a court order by destroying CIA interrogation videos of two al-Qaida suspects. U.S. District Judge Henry H. Kennedy rejected calls from the Justice Department to stay out of the matter. He ordered lawyers to appear before him Friday morning.
In June 2005, Kennedy ordered the administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”
Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department argued that the videos weren’t covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.
David Remes, a lawyer who represents a Yemeni national and other detainees, asked for the court hearing. He said the government was obligated to keep the tapes and he wants to be sure other evidence is not being destroyed. “We want more than just the government’s assurances. The government has given these assurances in the past and they’ve proven unreliable,” Remes said. “The recent revelation of the CIA tape destruction indicates that government cannot be trusted to preserve evidence.”
The Justice Department and CIA are investigating the destruction of the tapes and have urged Congress and the courts to give them space and time to let them investigate.
Remes urged Kennedy not to comply. “Plainly the government wants only foxes guarding this henhouse,” Remes wrote in court documents this week.
Kennedy did not say why he was ordering the hearing or what he planned to ask. Even if the judge accepts the argument that government did not violate his order, he still could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in “pending or reasonably foreseeable litigation.”
The judge has the power to hold this hearing and it’s not clear what the outcome will be. However, it seems clear the destroyed tapes were not made at GTMO and did not involve interrogations of GTMO detainees at the time of the interrogations. If that’s true, these tapes weren’t subject to the court’s order as the terms of the order have been reported in the news.
I’ve heard of revisionist history but if the government is sanctioned on these facts, that’s taking revisionism to a whole new level.