Hearing Ordered on Tape Destruction

A Federal Judge ordered a hearing into the destruction of videotapes of CIA interrogations of terrorism detainees. Judge Henry Kennedy, Jr. ordered Justice Department lawyers to appear before him on Friday to answer questions about the tapes and whether they were covered by a protective court order issued in connection with a lawsuit filed on behalf of Guantanamo Bay detainees.

Judge Kennedy had issued an order in the summer of 2005 directing the government to preserve all evidence pertaining to the cases of sixteen detainees. Lawyers for the detainees requested the hearing. The Justice Department asked Judge Kennedy to stay out of the matter, but the judge sided with arguments made by lawyers for the detainees. In his request for a hearing, David Remes, a lawyer for the detainees, said, "Plainly the government wants only the foxes guarding this henhouse."

The CIA recently acknowledged that the tapes were destroyed in November of 2005, months after the court order was issued. Agency personnel have said that the destruction was legal because they did not picture interrogations taking place at Guantanamo Bay, and thus were not covered by the order. The CIA maintains that the destruction was necessary to protect the identity of CIA interrogators, whose faces may have been visible on the tapes.

Mr. Remes is concerned that information about his clients could have been provided during interrogation like those depicted on the tapes. If so, he says, that may make the tapes relevant to the detainees' case even though it is known that none of his clients' interrogations were recorded on them.

"We hope to establish a procedure to review the government's handling of evidence in our case. We're grateful to Judge Kennedy for giving us that opportunity.

The C.I.A.'s destruction of the videotapes raises concerns about the government's handling of all the evidence in other cases."

It seems clear that the destruction of the tapes was not in direct violation of Judge Kennedy's order. However, Mr. Remes' argument about questionable handling of evidence in likely to win sympathy from the court. Regardless, as far as in known, the tapes have been irrevocably destroyed. If the judge rules that the action was harmful to Mr. Hermes' clients, it is difficult to imagine what remedy the court might impost that will change that basic fact.