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Judge Refuses to Order Hearing on C.I.A. Tapes

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December 21, 2007
Judge Refuses to Order Hearing on C.I.A. Tapes
By DAVID STOUT and DAVID JOHNSTON

WASHINGTON — A federal judge on Friday declined to rule immediately on
a request to compel the government to explain in detail the destruction of C.I.A.
videotapes showing the harsh interrogation of two suspected Al Qaeda operatives.

District Judge Henry H. Kennedy said he would rule later on a request by lawyers
for a dozen Yemeni prisoners being held at Guantánamo Bay, Cuba, that
he order such a hearing.

But Judge Kennedy, who heard a motion from the prisoners’ lawyers, appeared
at one point to be at least partly swayed by Bush administration lawyers that
he should not get more deeply involved while Attorney General Michael B. Mukasey
is undertaking one of the inquiries into the tapes’ destruction.

“Why should the court not permit the Department of Justice to do just
that?” Judge Kennedy asked David H. Remes, a lawyer for the detainees.

For Mr. Remes, the answer was simple. “Plainly, the government wants
only foxes guarding the henhouse,” he asserted in his motion. Considering
the government’s behavior so far, Mr. Remes argued, the Justice Department
is not entitled to a presumption that it will do the right thing.

The destruction in 2005 of the videotapes, disclosed earlier this month, has
caused a furor in the capital. Critics of the administration have seized on
the episode as further evidence that it may have a lot to hide in its treatment
of detainees. In addition to a joint inquiry by the Justice Department and the
Central Intelligence Agency’s own inspector general’s office, at
least one investigation has been begun in Congress.

Lawyers for the detainees say the destruction of the tapes may have violated
an order issued by Judge Kennedy himself earlier in 2005, and may be a sign
that other evidence was destroyed.

Government lawyers argued, in part, that the detainees’ lawyers have
not even shown convincingly that their clients were covered by Judge Kennedy’s
order of June 10, 2005, since the order applied only to prisoners who were indisputably
at Guantánamo Bay on June 10, and there is a question about the whereabouts
of at least some of the detainees on that date.

The government also asserted that Mr. Remes has failed to show that Judge Kennedy’s
order, calling for the preservation of documents concerning the “torture,
treatment and abuse” of Guantánamo Bay prisoners, addresses any
incident in which his clients were involved.

Source URL: http://www.nytimes.com/2007/12/21/washington/21cnd-tapes.html?_r=2&hp=&oref=slogin&pagewanted=print&oref=slogin