The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes' destruction.
In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.
It was the first time the government had addressed the issue of the videotapes in court.
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. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri.
Government lawyers told Kennedy the tapes were not covered by his 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.
In court documents, acting Assistant Attorney General Jeffrey S. Bucholtz was concerned that Kennedy might order CIA officials to testify about the tapes. Bucholtz said that "could potentially complicate the ongoing efforts to arrive at a full factual understanding of the matter."
The administration has taken a similar strategy in its dealings with Congress on the issue. On Friday, the Justice Department urged Congress to hold off on questioning witnesses and demanding documents because that evidence is part of a joint CIA-Justice Department investigation.
Attorney General Michael Mukasey also refused to give Congress details of the government's investigation into the matter Friday, saying doing so could raise questions about whether the inquiry was vulnerable to political pressure.
Even if Kennedy accepts the argument that government did not violate his order, he still could demand a hearing. He could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."
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.
David Remes, a lawyer who represents a Yemeni national and other detainees, has called for a court hearing. He says the government was obligated to keep the tapes and he wants to be sure other evidence is not being destroy.