WASHINGTON – The Bush administration must answer questions about the destruction of CIA interrogation videos of two Al Qaeda suspects, a federal judge said, rejecting the government's efforts to keep the courts out of the investigation.
U.S. District Judge Henry H. Kennedy on Tuesday ordered Justice Department lawyers to appear before him Friday at 11 a.m. to discuss whether destroying the tapes, which showed two Al Qaeda suspects being questioned, violated a court order.
The Justice Department has urged Congress and the courts to back off, saying its investigators need time to complete their inquiry. Government attorneys say the courts do not have the authority to get involved in the matter and could jeopardize the case.
For now, at least, Kennedy disagreed. Attorneys in unrelated cases, meanwhile, began pressing other judges to demand information about the tapes.
In June 2005, Kennedy ordered the Bush 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 were not 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 Yemeni detainees at Guantanamo Bay, 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 the government cannot be trusted to preserve evidence."
Kennedy did not say why he was ordering the hearing or what he planned to ask. Even if the judge accepts the argument that the 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 New York Times reported Tuesday night on its Web site that at least four top White House lawyers took part in discussions with the CIA between 2003 and 2005 about whether to destroy the tapes, according to current and former administration and intelligence officials the newspaper did not identify.
Alberto Gonzales, the former attorney general who served as White House counsel until early 2005, was among those who took part, the officials said, along with David Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John Bellinger III, who until January 2005 was the senior lawyer at the National Security Council, and Harriet Miers, who succeeded Gonzales as White House counsel.
One former senior intelligence official told the Times there had been "vigorous sentiment" among some top White House officials to destroy the tapes. Other officials asserted that no one at the White House advocated destroying the tapes, the newspaper said. Those officials added that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.
Also Tuesday, lawyers for a man convicted of terrorism charges alongside Jose Padilla asked a federal judge in Miami to force the government to turn over any remaining evidence regarding Zubaydah's interrogation. Prosecutors have acknowledged that Zubaydah provided information identifying Padilla as an Al Qaeda operative working on a purported "dirty bomb" plot, leading to his May 2002 arrest at Chicago's O'Hare International Airport.
Lawyer Ken Swartz said information about his client, convicted terrorism supporter Adham Amin Hassoun, might be found in those interrogations.
In a third case, this one involving another Guantanamo Bay detainee, attorney Jonathan Hafetz of the Brennan Center for Justice asked U.S. District Judge Gladys Kessler in Washington to schedule a hearing. Kessler's order, filed in July 2005, is almost identical to Kennedy's, and Hafetz says he worries key evidence was destroyed.
The Justice Department had no comment on Kennedy's decision to hold a hearing. Its lawyers are working with the CIA to investigate the destruction of the tapes and urged Kennedy to give them space and time to let them investigate.
Remes had urged Kennedy not to comply.
"Plainly the government wants only foxes guarding this henhouse," Remes wrote in court documents this week.
The Bush administration has taken a similar strategy in its dealings with Congress on the issue. Last week, the Justice Department urged lawmakers to hold off on questioning witnesses and demanding documents because that evidence is part of a joint CIA-Justice Department investigation.
Attorney General Michael Mukasey also refused to give Congress details of the government's investigation into the matter Friday, saying doing so could raise questions about whether the inquiry was vulnerable to political pressure.
Kennedy served as a federal prosecutor during the Nixon and Ford administrations until he was named a federal magistrate judge in 1976. President Jimmy Carter appointed him to be a local Washington judge and President Bill Clinton appointed him to the federal bench.