The controversy over destroyed CIA interrogation tapes is turning into a battle involving the courts, the US Congress and the White House, with the administration of US President George W. Bush telling its constitutional coequals to stay out of the investigation.
The Justice Department says it needs time and the freedom to investigate the destruction of hundreds of hours of recordings of two suspected terrorists. After Attorney General Michael Mukasey refused congressional demands for information on 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 save the tapes and told US District Judge Henry 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 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 only recently took over as the US' 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 Kmiec, who served in the Justice Department during the administration of former US president Ronald Reagan. "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 Guantanamo. The men were being held overseas in a network of secret CIA prisons. By the time Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.
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