Relying on Justice Department assurances that it is conducting a criminal investigation, U.S. District Judge Henry H. Kennedy, Jr., refused on Wednesday to open a judicial probe of reports that the Central Intelligence Agency in 2005 destroyed videotapes of aggressive interrogation techniques of individuals held by the U.S. government on suspicion of terrorism.  In a three-page order (found here) in Abdah, et al., v. Bush, et al. (docket 04-1254), the judge said that he had been told at a December hearing by a Justice Department lawyer that the criminal investigation will include the question of whether there has been any violation of court orders to preserve evidence about abuse of prisoners in U.S. custody.

Those “assurances,” the judge said, include a promise to notify the judge if the Department finds a violation of any legal obligations, including Kennedy’s own evidence-preservation order issued in June 2005.  While the lawyers for the detainees before him “argue that the court should not place much stock in the assurances of the Department of Justice,” Judge Kennedy said that there is a presumption that public officers properly carry out their duties.  That presumption, he added, “is especially warranted with respect to the newly-appointed Attorney Genereal and Department of Justice lawyers.”

Moreover, the judge said, he had been offered no evidence “to rebut this presumption.”

The judge’s opinion also noted that he had been told by government lawyers that the videotapes did not involve interrogations that occurred at Guantanamo Bay — the only place where his preservation order applied.  It appears that the destroyed videotapes were made at secret overseas CIA sites.

In a footnote, the judge refused to open a broad inquiry into whether the government, in destroying these and possibly other videotapes, had violated a more general obligation to preserve all evidence.  The detainees’ lawyers had not raised that issue in their plea now before him, Judge Kennedy wrote, so he would not consider it.

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