Federal courts had prohibited the Bush administration from discarding evidence of detainee torture and abuse months before the CIA destroyed videotapes that revealed some of its harshest interrogation tactics.
Normally, that would force the government to defend itself against obstruction allegations. But the CIA may have an out: its clandestine network of overseas prisons.
While judges focused on the detention center in Guantanamo Bay, Cuba, and tried to guarantee that any evidence of detainee abuse there would be preserved, the CIA was performing its toughest questioning half a world away. And by the time President Bush publicly acknowledged the secret prison system, interrogation videos of two terrorism suspects had been destroyed.
The CIA destroyed the tapes in November 2005. That June, U.S. District Judge Henry H. Kennedy Jr. had ordered the Bush 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.”
U.S. District Judge Gladys Kessler issued a nearly identical order that July.
At the time, that seemed to cover all detainees in U.S. custody. But Abu Zubaydah and Abd al-Rahim al-Nashiri, the terrorism suspects whose interrogations were videotaped in 2002 and destroyed three years later, weren’t at Guantanamo Bay. They were prisoners who existed off the books – and apparently beyond the scope of the court’s order.
Attorneys say that might not matter. David H. Remes, a lawyer for Yemeni citizen Mahmoad Abdah and others, asked Kennedy this week to schedule a hearing on the issue. Kennedy gave the government until Friday to respond.
Exactly who signed off on the decision is unclear, but CIA Director Michael V. Hayden told the agency in an e-mail this week that internal reviewers found the tapes were not relevant to any court case.
Meanwhile, Hayden acknowledged Wednesday that the CIA failed to keep key congressional committees adequately informed of the agency’s decision to destroy the tapes.
“I think that it’s fair to say that, particularly at the time of the destruction, we could have done an awful lot better in keeping the committee alerted and informed as to that activity,” Hayden said after a threehour meeting with the House Intelligence Committee on the tapes controversy.
The Los Angeles Times contributed to this story.