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. But the CIA may have an out: its clandestine network of overseas prisons.
While judges focused on the detention center in Guantanamo Bay, Cuba, and tried to guarantee that any evidence of detainee abuse would be preserved, the CIA was performing its toughest questioning half a world away. And by the time President Bush publicly acknowledged the secret prison system, interrogation videotapes of two terrorism suspects had been destroyed.
The CIA destroyed the tapes in November 2005. That June, U.S. District Judge Henry H. 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."
U.S. District Judge Gladys Kessler issued a nearly identical order that July.
Officials 'well aware of their obligation'
At the time, that seemed to cover all detainees in U.S. custody. But Abu Zubaydah and Abd al-Rahim al-Nashiri, the terrorism suspects whose interrogations were videotaped and then destroyed, weren't 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 H. Remes, a lawyer for Yemeni citizen Mahmoad Abdah and others, asked Kennedy this week to schedule a hearing on the issue.
Though 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 D. 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 of the CIA advised against destroying the interrogation tapes, according to a former senior intelligence official involved in the matter who spoke on condition of anonymity because it is under investigation.
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. Abu Zubaydah's interrogation helped lead investigators to alleged 9/11 mastermind Khalid Sheikh Mohammed and Remes said Abu Zubaydah may also have been questioned about other detainees. Such evidence might have been relevant in their court cases.
"It's logical to infer that the documents were destroyed in order to obstruct any inquiry into the means by which statements were obtained," Remes said.
He stopped short, however, of accusing the government of obstruction. That's just one of the legal issues that could come up in court. A judge could also raise questions about contempt of court or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."
Kennedy has not scheduled a hearing on the matter. He gave the government until Friday to a respond to Remes' request.
The tapes were also destroyed at a time when attorneys for al-Qaida conspirator Zacarias Moussaoui were seeking interrogation videos that might help show their client wasn't a part of the 9/11 attacks.
In May 2005, U.S. District Judge Leonie Brinkema ordered the government to disclose whether interrogations were recorded. The government objected. In a modified order on Nov. 3, 2005, the judge asked whether the government "has video or audio tapes" of specific interrogations. Eleven days later, the government said it did not.
"The CIA did not say to the court in its original filing that it had no terrorist tapes at all. It would be wrong to assert that," CIA spokesman George Little said.
Last month, the CIA admitted to Brinkema and a circuit judge that it had failed to hand over tapes of enemy combatant witnesses. Those interrogations were not part of the CIA's detention program and were not conducted or recorded by the agency, the agency said.