U.S. District Judge Henry Kennedy Jr. has ordered a hearing on whether the CIA violated a court protective order when it destroyed videotaped interrogations in 2005.
The order, issued this morning, is a blow to the Bush administration, which had asked Kennedy to stay out of the matter, saying that a court inquiry would interfere with current investigations by the CIA and the Justice Department into the tapes’ destruction. The Justice Department has continued to resist a congressional inquiry using the same argument. The hearing is scheduled for Dec. 21 in the U.S. District Court for the District of Columbia.
Lawyers for several detainees at Guantanamo Bay requested the hearing days after CIA Director Michael Hayden, responding to press reports, publicly admitted that the CIA had destroyed hundreds of hours of videotape of CIA officers using harsh interrogation methods on two suspected al-Qaeda members.
In documents filed yesterday, Covington & Burling’s David Remes, a lawyer for the detainees, urged Kennedy to move forward with an inquiry, saying that the administration’s attempt to shut out the political and judiciary branches amounted to “the government [wanting] only foxes guarding this henhouse.”
“We’re hoping to establish a procedure to review the government’s handling of the evidence in our case. We’re grateful to judge Kennedy for considering the matter,” Remes said in an interview today.
In June 2005, Kennedy ordered the government to preserve "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantánamo Bay." Five months later, the CIA destroyed the interrogation videos, which featured CIA officers using coercive methods on suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri.
Government lawyers, in documents filed last Friday, argued that the order did not extend to the tapes because detainees’ lawyers had not shown that Zubaydah or al-Nashiri were imprisoned at the naval base in Guantánamo Bay, Cuba, at the time Kennedy issued it.
Detainees' lawyers said that the destruction of the tapes, regardless of the timing, puts the burden of proof on the government to show that the order was not violated.