The Bush administration was under court order not to discard 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. The CIA may have an out, however, in its clandestine network of overseas prisons.
While judges focused on Guantanamo Bay and tried to guarantee that any evidence of detainee abuse would be preserved, the CIA was performing its toughest questioning half a world away. By the time US President George W. Bush acknowledged the secret prison system, interrogation videotapes of two terrorism suspects had been destroyed.
The CIA destroyed the tapes in November 2005.
In June the same year, US District Judge Henry 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."
US District Judge Gladys Kessler issued a nearly identical order that July.
At the time, that seemed to cover all detainees in US custody. But Abu Zubaydah and Abd al-Rahim al-Nashiri, the terror suspects whose interrogations were videotaped and then destroyed, were not at Guantanamo Bay. They were prisoners that existed off the books and apparently beyond the scope of the court's order.
Attorneys say that might not matter. David Remes, a lawyer for Yemeni national Mahmoad Abdah and others, asked Kennedy this week to schedule a hearing on the issue.
Although Remes acknowledged the tapes might not be covered by Kennedy's order, he said: "It is still unlawful for the government to destroy evidence and it had every reason to believe that these interrogation records would be relevant to pending litigation concerning our client."
In legal documents filed in January 2005, Assistant Attorney General Peter Keisler assured Kennedy that government officials were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation."
For just that reason, officials inside and outside the CIA advised against destroying the interrogation tapes, said a former senior intelligence official involved in the matter who spoke on condition of anonymity.
Exactly who signed off on the decision is unclear, but CIA Director Michael Hayden told the agency in an e-mail this week that internal reviewers found the tapes were not relevant to any court case.
Remes said that decision raises questions about whether other evidence was destroyed.
He stopped short, however, of accusing the government of obstruction. That is just one of the legal issues that could come up in court.
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