By ichard B. Schmitt, Los Angeles Times Staff Writer
December 19, 2007
WASHINGTON -- Over the objections of the Justice Department, a federal judge said Tuesday he would explore whether the U.S. had violated a court order to preserve evidence when the CIA destroyed videotaped interrogations of two terrorism suspects in 2005.
U.S. District Judge Henry H. Kennedy Jr. set a hearing for Friday in Washington in response to a request from Yemeni prisoners who are challenging their detention by the U.S. at the military prison at Guantanamo Bay, Cuba.
Much of the evidence against the defendants consists of accusations by other prisoners, whom the lawyers think may have been coerced.
The issue of coercive interrogations has taken on new primacy after disclosures this month that the CIA had destroyed videotapes of interrogations of purported Al Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri.
The tapes were destroyed by a CIA official in November 2005, at a time of growing congressional and public concern about U.S. tactics in the war on terrorism, including interrogation techniques.
It was also five months after Kennedy, in the case of the Yemeni prisoners, issued an order requiring that the U.S. preserve and maintain "all evidence and information regarding the torture, mistreatment and abuse of detainees now" at Guantanamo Bay. According to court papers, government lawyers said at the time that a formal order was not necessary because they were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation."
Destroying evidence relevant to a legislative or judicial proceeding could constitute obstruction of justice. Kennedy could also sanction the government in the case of the Yemeni defendants if he found that the U.S. had violated his order.
In court papers filed last week, the Justice Department argued that the videos weren't covered by the order because at the time Zubaydah and al-Nashiri were being held in secret CIA prisons overseas. The men were later transferred to the Guantanamo Bay prison.