Government Lawyers Deny Gitmo Connection With Destroyed CIA Tapes

Joe Palazzolo

Legal Times

In the first court hearing on the destruction of CIA interrogation videotapes, government lawyers denied that the footage bore any relevance to a dozen Guantanamo Bay detainees who are petitioning a federal judge to be released from U.S. custody.

"It is inconceivable that the destruction of the tapes could have been about the abuse, mistreatment, or torture of detainees at Guantanamo Bay," Joseph Hunt, a lawyer for the Justice Department, told U.S. District Judge Henry Kennedy Jr. at a Dec. 21 motions hearing.

Lawyers for the detainees are trying to draw a link between the tapes and their clients, 11 Yemeni prisoners at Guantanamo Bay, or at least show that the government neglected its broader obligation to preserve potential evidence when the CIA destroyed tapes of its officers using harsh interrogation methods on suspected al-Qaida operatives. The lawyers made a motion on Dec. 16 for an inquiry into the tapes' destruction, and Kennedy scheduled the hearing against the government's wishes. The Justice Department's National Security Division is conducting an inquiry of its own, as are the CIA and several congressional committees.

After listening to about an hour of arguments in a crowded courtroom in the U.S. District Court for the District of Columbia, Kennedy said he would take the matter under advisement but gave no hint as to when he might rule.

Covington & Burling partner David Remes, a lawyer for the detainees, requested the hearing soon after CIA officials disclosed this month that the tapes had been destroyed in November 2005. Earlier in 2005, Kennedy had issued an order in the Yemenis' case to preserve "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Remes argued that the government bore the burden of showing that it did not violate the order. Even if the tapes had nothing to do with his clients, he said, the CIA's decision to destroy them raised concerns about the government's general obligation to hold on to evidence that could be subject to future litigation. "Your Honor, we have to say that our point is, where there's smoke, there's fire," Remes said.

Hunt argued that the tapes depicted the interrogations of only Abu Zubaydah and Abu al-Rahim al-Nashiri, and neither was recorded at Guantanamo Bay, Hunt said.

Hunt did not question Kennedy's jurisdiction to inquire as to whether one of his orders had been violated, but he asked the judge to consider whether "it was the prudent thing," in light of the Justice Department's investigation and the Supreme Court's pending decision on whether the detainees have recourse in U.S. courts.

If Kennedy were to launch an inquiry, Remes said he would request logs of the names and statements of other prisoners at Guantanamo Bay who identified his clients, perhaps under duress.

Remes said he "wouldn't rule out the possibility" of calling administration officials in to testify, but he said he was loath to do so.

Kennedy seemed irritated by the suggestion, at one point asking Remes, "Do you dispute the proposition that what you are seeking from this court is fundamentally different than what was requested in the motion?"

Remes, refusing to concede the point, answered that he "would be delighted" if Kennedy held an inquiry that narrowly focused on whether the government violated the protective order.

Kennedy asked the government's lawyers whether the Justice Department would create a report of its findings in the CIA tapes inquiry and turn it over to the court for review.

Hunt could not say whether the Justice Department would draft a report.

"But I commit to you that, if the National Security Division concludes that there was a violation of this order, we would so advise the court," he said.