By MATT APUZZO, Associated Press Writer
December 15, 2007
WASHINGTON - The controversy over destroyed CIA interrogation
tapes is shaping up as a turf battle involving the courts,
Congress and the White House, with the Bush administration
telling its constitutional coequals to stay out of the investigation.
The Justice Department says it needs time and the freedom
to probe the destruction of hundreds of hours of recordings
of two suspected terrorists. After Attorney General Michael
Mukasey refused congressional demands for information Friday,
the Justice Department filed late-night court documents urging
a federal judge not to begin his own inquiry.
The administration argued it was not obligated to preserve
the videotapes and told U.S. District Judge Henry H. Kennedy
that demanding information about them "could potentially
complicate the ongoing efforts to arrive at a full factual
understanding of the matter."
The documents represent the first time the government has
addressed the issue in court. In the papers, acting Assistant
Attorney General Jeffrey S. Bucholtz said Kennedy lacked jurisdiction
and he expressed concern that the judge might order CIA officials
to testify.
Congressional inquiries and criminal investigations frequently
overlap and it is not uncommon for the Justice Department to
ask lawmakers to ease off. The request for the court to stand
down is more unusual. Judges take seriously even the suggestion
that evidence was destroyed, but they also are reluctant to
wade into political debates.
Legal experts say it will be up to Mukasey, a former judge
who was only recently took over as the nation's chief law enforcer,
to reassure Congress and the courts during his first high-profile
test.
"We're going to find out if the trust Congress put in
Attorney General Mukasey was well placed," said Pepperdine
Law professor Douglas W. Kmiec, who served in the Justice Department
during the Reagan administration. "It's hard to know on
the surface whether this is obstruction or an advancement of
a legitimate inquiry."
Kennedy ordered the administration in June 2005 to safeguard "all
evidence and information regarding the torture, mistreatment,
and abuse of detainees now at the United States Naval Base
at Guantanamo Bay."
Five months later, the CIA destroyed the interrogation videos,
which involved suspected terrorists Abu Zubaydah and Abd al-Rahim
al-Nashiri
Bucholtz argued that the tapes were not covered by Kennedy's
court order because Zubaydah and al-Nashiri were not at the
Guantanamo military prison in Cuba. The men were being held
overseas in a network of secret CIA prisons. By the time President
Bush acknowledged the existence of those prisons and the prisoners
were transferred to Guantanamo, the tapes had been destroyed.
Lawmakers had reacted angrily to Mukasey's refusal Friday
to give Congress details of the administration's investigation.
He explained that doing so could raise questions about whether
the inquiry was vulnerable to political pressure and said his
department generally does not release information on pending
cases.
"It's clear that there's more to this story than we have
been told, and it is unfortunate that we are being prevented
from learning the facts. The executive branch can't be trusted
to oversee itself," according to a statement by the leaders
of the House Intelligence Committee, Reps. Silvestre Reyes,
D-Texas, and Pete Hoekstra, R-Mich.
They said "parallel investigations occur all of the time,
and there is no basis upon which the attorney general can stand
in the way of our work." Mukasey's decision, lawmakers
said, blocks congressional oversight of his department.
David Remes, a lawyer who represents a Yemeni national and
other detainees, has called for a court hearing. He says the
government was required to keep the tapes and he wants to be
sure other evidence is not being destroyed.
Even if Kennedy agrees that the government did not violate
his order, he still could schedule a hearing. He could raise
questions about obstruction or spoliation, a legal term for
the destruction of evidence in "pending or reasonably
foreseeable litigation."
Those are serious matters, but Kennedy does not necessarily
have to hold a hearing right away, said K. Lee Blalack, a Washington
defense lawyer and former counsel to a Senate investigative
committee.
"If the department takes six months on this and reports
back, nothing prevents the judge from taking up the issue then," Blalack
said.
Kmiec said much will depend on how much confidence Kennedy
has in the Justice Department. The judge also might order a
private hearing to protect national security, Kmiec said.
Zubaydah was the first high-value detainee taken by the CIA
in 2002. He told his interrogators about alleged Sept. 11 accomplice
Ramzi Binalshibh, and the two men's confessions also led to
the capture of Khalid Sheikh Mohammed, who the U.S. government
said was the mastermind behind the terrorist attacks.
Al-Nashiri is the alleged coordinator of the 2000 suicide
attack on the USS Cole in Yemen, which killed 17 sailors. Like
Zubaydah, he is now at Guantanamo.
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