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Detainee Evidence Probe Weighed
Judge Told Guantanamo Information May Have Been Destroyed

By Carol D. Leonnig
Washington Post Staff Writer
Saturday, December 22, 2007

A federal judge expressed skepticism yesterday that he should order a special judicial investigation into whether the Bush administration has destroyed evidence related to suspected enemy fighters at the U.S. military prison at Guantanamo Bay, Cuba.

The issue was raised by lawyers for some of the detainees at Guantanamo, who cited as a cause for worry the CIA's recent acknowledgment that it destroyed videotapes of interrogations of two prisoners at secret detention sites.

U.S. District Judge Henry H. Kennedy Jr. had scheduled the hearing yesterday, over the government's objections, to consider whether the destruction of those tapes violated a 2005 order in which he said the government should preserve any evidence related to torture or mistreatment of detainees at Guantanamo.

Kennedy expressed concerns at the hour-long hearing about whether the destruction was linked to what happened at Guantanamo and whether a special inquiry into the possible destruction of other documents was needed. But he said at the end he would consider the request.

The Guantanamo detainees, some held for as long as six years without charges, have challenged their imprisonment, and several have alleged that their U.S. captors have tortured and abused them. David H. Remes, an attorney for several detainees, argued yesterday that the destruction of the CIA tapes signaled that the administration was willing to destroy evidence of possible torture and said that the court should find out what else could be missing.

Attorneys for Guantanamo detainees have said in recent days that the destroyed CIA tapes could be relevant if coercive interrogations of Abu Zubaida or Nashiri led them to implicate those held at Guantanamo now.

A Justice Department lawyer urged the judge to hold off, saying such an inquiry could compromise a Justice Department probe that is underway. Department lawyer Joseph "Jody" Hunt also assured Kennedy that it is "inconceivable" that the taped interrogations of two CIA prisoners are records covered by the judge's 2005 order, because they were videotaped in 2002 at sites other than Guantanamo.

Remes questioned why the court should trust the Justice Department's claim that the tapes were not relevant, particularly if the department was aware of the destruction at the time it occurred. "We now have the Justice Department saying, 'Stay out of it. We'll figure it out,' " Remes said. "I must say . . . this is like leaving the fox in charge of the henhouse."

Remes also argued that the detainees' legal cases are at a particularly fragile state, as the Supreme Court is now weighing whether the administration followed the law and objectively assessed evidence against the detainees while deciding if they were enemy combatants who could be imprisoned indefinitely.

"The court has the inherent power to preserve the status quo, by ensuring that further evidence relevant to our clients is not destroyed and to determine the extent of destruction that has already taken place," Remes said.

But Kennedy, who was appointed to the federal bench in 1997 by President Bill Clinton, said he was wary of Remes's suggestion that he undertake a wide-ranging probe of the government's preservation of evidence.

Separately yesterday, Deputy Secretary of State John D. Negroponte said he is prepared to testify before Congress about what he knew of the CIA's destruction of tapes and will cooperate with "whomever is investigating this matter." Negroponte, 68, was director of national intelligence when the tapes were destroyed and said yesterday that he was confident that "whatever record is developed will show that I dealt with this situation in an entirely appropriate manner."

Newsweek magazine reported earlier this month that Negroponte advised then-CIA Director Porter J. Goss in the summer of 2005 not to destroy the tapes.

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