Court probe opened on CIA tapes dispute
In a new echo of the Supreme Court’s 2004 ruling that Guantanamo Bay detainees have legal rights to challenge their captivity, a federal judge on Thursday ordered a limited inquiry into the government’s destruction of videotapes of Central Intelligence Agency interrogation of war-on-terrorism suspects. Lawyers for a Yemeni national who asked for that judicial probe had contended that the tapes may well include accusations against him — information that should have been kept for use in court review under Rasul v. Bush (2004) of his prolonged detention.
U.S. District Judge Richard W. Roberts, silently refusing a Justice Department request to take no action while a Department criminal investigation of the tapes’ destruction proceeds, and putting aisde a Department claim that he has no jurisdiction to act, ordered government officials on Thursday to file a written report by Feb. 14 on whether any evidence that the judge had ordered preserved has been “destroyed or otherwise spoliated.” The judge’s order can be downloaded here.
The case involves Hani Saleh Rashid Abdullah, an electrician from Yemen, who was captured in Karachi, Pakistan, on September 11, 2002, during a series of raids by U.S. forces in search of suspected members of the al Qaeda terrorist network. Abdulllah’s lawyers contend that he went to Pakistan to further his studies of the Koran, while U.S. officials contend he went there for weapons training in al Qaeda camps.
When a military panel (a Combatant Status Review Tribunal) decided on July 29, 2004, that Abdullah was an “enemy combatant” who had to remain detained at Guantanamo, among the evidence it relied upon were statements made by “an al Qaeda associate” implicating Abdullah in al Qaeda activities.
Abdullah’s lawyers have told Judge Roberts that they believe that evidence could have been recorded on a CIA videotape that has since been destroyed. Here are the links they cite for that assertion: at least one of the tapes, the government has said, showed interrogations of Abu Zubaydah, one of 14 “high value” terrorist suspects held at secret CIA sites overseas for a time but now at Guantanamo; after Zubaydah’s arrest in March 2002, interrogation of him led U.S. forces to stage the raids in Karachi on September 11, 2002, when two other “high value” detainees — as well as Abdullah — were captured during a firefight. According to Abdullah’s lawyers, in comments that Judge Roberts pointed to in his order, “it is very likely that Abu Zubaydah and those captured on September 11, 2002, were asked directly about Abdullah, because of the time and place of his arrest, in addition to being questioned about other details” of evidence that Judge Roberts had ordered preserved.
Judge Roberts, relying partly on the Rasul decision, had issued an order on July 18, 2005, at Abdullah’s request, requiring government officials “to preserve and maintain all evidence, documents and information, without limitation, now or ever in [their] possession, custody or control, regarding” Abdullah. His lawyers want a chance to challenge that evidence in court to contest the military’s finding that he is an “enemy combatant.” They also want any evidence that may have been obtained from another al Qaeda figure, identified in court papers as “X.” Abdullah had tried to have that figure appear before the military panel, but officials said he was not available.
After government officials disclosed in December that two CIA videotapes, including tapes involving Zubaydah, had been destroyed in 2005, Abdullah’s lawyers asked Judge Roberts to open an inquiry into whether his order to preserve evidence had been violated. Abdullah’s counsel said they did not seek “a full blown evidentiary hearing” but only a “compliance report.” on whether the judge’s order has been obeyed, and what steps officials took to comply with it.
The judge, in his order Thursday, concluded that Abdullah’s counsel had “made a colorable showing that information obtained from Abu Zubaydah during 2002 likely included information” about Abdullah, “and was therefore subject to the preservation order.”
While declining a request to summon government witnesses to testify, Roberts ordered a report by Feb. 14 “detailing what [officials] have done since the preservation order was entered in July 2005, and what they are now doing, to ensure compliance with the July 28, 2005 preservation order, and the nature of any evidence potentially subject to the preservation order that has been destroyed or otherwise spoliated.”