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Judge orders hearing on whether administration violated court order by destroying CIA videos

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Posted: December 18, 2007 2:56 p.m.
Updated: January 2, 2008 5:00 a.m.
    WASHINGTON — A federal judge on Tuesday ordered the Bush administration to defend its decision to destroy videotapes of CIA interrogations of two al-Qaida suspects.
    In a one-sentence order, U.S. District Judge Henry H. Kennedy rejected calls from the Justice Department to stay out of the matter and told lawyers to appear before him Friday at 11 a.m.
    In June 2005, Kennedy ordered the 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 weren’t 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, asked for the court hearing. He 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 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 Justice Department had no comment on Tuesday. Its lawyers are working with the CIA to investigate the destruction of the tapes and had urged Kennedy to give them time to investigate.
    Remes 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 Congress to hold off on questioning witnesses and demanding documents because that evidence is part of the 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.

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