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CIA Destroyed
Torture Tapes Despite Court Orders
By Matt Apuzzo
Associated Press Writer
12/12/07 "AP"--- - WASHINGTON — The Bush administration was
under court order not to discard evidence of detainee torture
and abuse months before the CIA destroyed videotapes that
revealed some of its harshest interrogation tactics.
Normally, that would force the government to defend itself
against obstruction allegations. But the CIA may have an out:
its clandestine network of overseas prisons.
While judges focused on the detention center in Guantanamo Bay,
Cuba, and tried to guarantee that any evidence of detainee abuse
would be preserved, the CIA was performing its toughest
questioning half a world away. And by the time President Bush
publicly acknowledged the secret prison system, interrogation
videotapes of two terrorism suspects had been destroyed.
The CIA destroyed the tapes in November 2005. That June, U.S.
District Judge Henry H. Kennedy Jr. had 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."
U.S. District Judge Gladys Kessler issued a nearly identical
order that July.
At the time, that seemed to cover all detainees in U.S. custody.
But Abu Zubaydah and Abd al-Rahim al-Nashiri, the terrorism
suspects whose interrogations were videotaped and then
destroyed, weren't at Guantanamo Bay. They were prisoners that
existed off the books — and apparently beyond the scope of the
court's order.
Attorneys say that might not matter. David H. Remes, a lawyer
for Yemeni citizen Mahmoad Abdah and others, asked Kennedy this
week to schedule a hearing on the issue.
Though Remes acknowledged the tapes might not be covered by
Kennedy's order, he said, "It is still unlawful for the
government to destroy evidence, and it had every reason to
believe that these interrogation records would be relevant to
pending litigation concerning our client."
In legal documents filed in January 2005, Assistant Attorney
General Peter D. Keisler assured Kennedy that government
officials were "well aware of their obligation not to destroy
evidence that may be relevant in pending litigation."
For just that reason, officials inside and outside of the CIA
advised against destroying the interrogation tapes, according to
a former senior intelligence official involved in the matter who
spoke on condition of anonymity because it is under
investigation.
Exactly who signed off on the decision is unclear, but CIA
director Michael Hayden told the agency in an e-mail this week
that internal reviewers found the tapes were not relevant to any
court case.
Remes said that decision raises questions about whether other
evidence was destroyed. Abu Zubaydah's interrogation helped lead
investigators to alleged 9/11 mastermind Khalid Sheikh Mohammed
and Remes said Abu Zubaydah may also have been questioned about
other detainees. Such evidence might have been relevant in their
court cases.
"It's logical to infer that the documents were destroyed in
order to obstruct any inquiry into the means by which statements
were obtained," Remes said.
He stopped short, however, of accusing the government of
obstruction. That's just one of the legal issues that could come
up in court. A judge could also raise questions about contempt
of court or spoliation, a legal term for the destruction of
evidence in "pending or reasonably foreseeable litigation."
Kennedy has not scheduled a hearing on the matter and the
government has not filed a response to Remes' request.
___
Associated Press Writer Lara Jakes Jordan contributed to this
report.
Copyright 2007, The Associated Press.
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