WASHINGTON – 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 coequals to stay out of the investigation.
The Justice Department says it needs time and the freedom to probe the destruction of hundreds of hours of recordings of two suspected terrorists. After Attorney General Michael 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 Attorney General 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 was only recently took over as the nation's chief law enforcer, to reassure Congress and the courts during his first high-profile test.
"We're going to find out if the trust Congress put in Attorney General Mukasey was well placed," said Pepperdine 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 United States Naval Base at Guantanamo Bay."
Five months later, the CIA destroyed the interrogation videos, which involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri
Bucholtz argued that the tapes were not covered by Kennedy's court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.
Lawmakers had reacted angrily to Mukasey's refusal Friday to give Congress details of the administration's investigation. He explained that doing so could raise questions about whether the inquiry was vulnerable to political pressure and said his department generally does not release information on pending cases.
"It's clear that there's more to this story than we have been told, and it is unfortunate that we are being prevented from learning the facts. The executive branch can't be trusted to oversee itself," according to a statement by the leaders of the House Intelligence Committee, Reps. Silvestre Reyes, D-Texas, and Pete Hoekstra, R-Mich.
They said "parallel investigations occur all of the time, and there is no basis upon which the attorney general can stand in the way of our work." Mukasey's decision, lawmakers said, blocks congressional oversight of his department.
David Remes, a lawyer who represents a Yemeni national and other detainees, has called for a court hearing. He says the government was required to keep the tapes and he wants to be sure other evidence is not being destroyed.
Even if Kennedy agrees that the government did not violate his order, he still could schedule a hearing. He could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."
Those are serious matters, but Kennedy does not necessarily have to hold a hearing right away, said K. Lee Blalack, a Washington defense lawyer and former counsel to a Senate investigative committee.
"If the department takes six months on this and reports back, nothing prevents the judge from taking up the issue then," Blalack said.
Kmiec said much will depend on how much confidence Kennedy has in the Justice Department. The judge also might order a private hearing to protect national security, Kmiec said.
Zubaydah was the first high-value detainee taken by the CIA in 2002. He told his interrogators about alleged Sept. 11 accomplice Ramzi Binalshibh, and the two men's confessions also led to the capture of Khalid Sheikh Mohammed, who the U.S. government said was the mastermind behind the terrorist attacks.
Al-Nashiri is the alleged coordinator of the 2000 suicide attack on the USS Cole in Yemen, which killed 17 sailors. Like Zubaydah, he is now at Guantanamo.