Destruction of CIA Tapes Defended

By Dan Eggen
Washington Post Staff Writer
Sunday, December 16, 2007

The Bush administration has told a federal judge that its 2005 destruction of CIA interrogation videotapes did not violate a court order because the captives in question were being kept in secret prisons at the time, not at the military detention facility at Guantanamo Bay, Cuba.

In court papers, the government also urged U.S. District Judge Henry H. Kennedy Jr. not to seek further information about the tapes to avoid interfering with the inquiries of the Justice Department and the CIA's inspector general.

"In light of the current inquiries by the political branches into the destruction of the tapes that occasioned petitioners' motion, it would not be appropriate to institute a judicial inquiry," according to the filing by Acting Assistant Attorney General Jeffrey S. Bucholtz and two federal prosecutors.

The motion, which was filed late Friday night, is the first courtroom statement by the Bush administration since the CIA disclosed that videotapes of coercive interrogation techniques used on two "high-value detainees" were destroyed in November 2005.

The filing follows the Justice Department's request that Congress delay its inquiries into the tapes, saying the administration cannot provide witnesses or documents without jeopardizing its own investigation. Attorney General Michael B. Mukasey also told lawmakers that he could not provide any details about the probe or the Justice Department's role in the tapes' destruction.

As part of a civil lawsuit challenging detentions at Guantanamo Bay, Kennedy issued an order in June 2005 requiring the preservation of evidence "regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guant¿namo Bay, Cuba." Attorneys for a group of Yemeni detainees had asked Kennedy to hold a hearing on whether the tapes' destruction violated that order.

Federal prosecutors said the order clearly did not apply to the prisoners whose interrogations were recorded, Zayn al-Abidin Muhammed Hussein, also known as Abu Zubaida, and Abd al-Rahim al-Nashiri, because neither was at Guantanamo Bay at the time. Instead, both were held in secret locations by the CIA until their transfer to Guantanamo Bay in late 2006 -- about a year after the tapes were destroyed.

Bucholtz and the prosecutors also contend that any court inquiry into the tapes would disrupt ongoing investigations into the incident, and that Kennedy does not have jurisdiction over the matter, in any case.

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