In June 2005, US District Judge Henry Kennedy orders 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.” US District Judge Gladys Kessler issued a nearly identical order one month later. Later that year, the CIA will destroy videotapes of the interrogation and possible torture of high-ranking al-Qaeda detainees Abu Zubaida and Abd al-Rahim al-Nashiri (see November 2005). In 2005, Zubaida and al-Nashiri are not being held at the Guantanamo prison, but at secret CIA prisons overseas. But while evidence of torture of Zubaida and al-Nashiri is not directly covered by the orders, it may well be indirectly covered. David Remes, a lawyer for some of the Guantanamo detainees, will later claim, “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 January 2005, Assistant Attorney General Peter Keisler assured Kennedy that government officials were “well aware of their obligation not to destroy evidence that may be relevant in pending litigation.” [Associated Press, 12/12/2007] In some court proceedings, prosecutors have used evidence gained from the interrogation of Zubaida to justify the continued detention of some Guantanamo detainees. Scott Horton writing for Harper’s magazine will later comment that “in these trials, a defendant can seek to exclude evidence if it was secured through torture. But the defendant has an obligation to prove this contention. The [destroyed videotapes] would have provided such proof.” [Harper’s, 12/15/2007]
December 14, 2007: Justice Department Urges Judge Not to Look into Destruction of CIA Tapes
The Justice Department urges a federal judge not to begin an inquiry into the destruction of CIA videotapes in a case involving 11 Guantanamo Bay detainees. The judge in the case, Henry Kennedy, had previously issued a ruling that evidence related to the detainees should be preserved (see June-July 2005). After attorneys for the detainees file a motion saying the CIA’s destruction of the tapes “raises grave concerns about the government’s compliance with the preservation order entered by this court,” the administration argues it was not under an obligation to preserve the videotapes and tells US District Judge Kennedy that asking for information about the tapes’ destruction could “potentially complicate” a Justice Department inquiry into it. The Justice Department also says the judge lacks jurisdiction and is worried he will compel CIA officers to testify. In addition, the destroyed tapes were made outside Guantanamo, whereas the order previously issued by the judge only directly affected material in Guantanamo. However, evidence from “a senior al-Qaeda lieutenant” is being used against one of the detainees, and this lieutenant may have been shown on the destroyed tapes, making them relevant to the case. The Associated Press calls the Justice Department’s request “unusual,” and law professor Douglas Kmiec comments, “It’s hard to know on the surface whether this is obstruction or an advancement of a legitimate inquiry.” [New York Times, 12/11/2007; Associated Press, 12/15/2007] Another law professor, Jonathon Turley, comments: “The Justice Department insists it will essentially investigate itself and then tells the court that because it is investigating itself it won’t turn over evidence of its possible criminal misconduct. It’s so circular, it’s maddening.” [ABC News, 12/15/2007] In early January 2008, Kennedy will decline to hold a hearing into the destruction, saying that the destroyed tapes were not directly related to this case, as they were not made in Guantanamo. He is also “influenced by the assurances of the Department of Justice” that its criminal investigation will cover the issue of whether the tapes’ destruction “was inconsistent with or violated any legal obligations.” [New York Times, 1/10/2008]
