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New challenge on CIA tapes

Lawyers in a second Guantanamo Bay detainee case filed a plea in federal court in Washington Monday, asking that the Central Intelligence Agency be ordered to explain destruction of two tapes showing aggressive questioning of detainees. In a motion filed with U.S. District Judge Richard W. Roberts in the case of Abdullah v. Bush (docket 05-23), the attorneys said that they had notified the CIA directly of the judge’s order forbidding destruction of potential evidence in July 2005 — four months before agency officials ordered the destruction of the tapes.

The new motion can be found here; a copy of the letter to the CIA, found here, was attached as an exhibit to the motion.  The attorneys said they expected the Justice Department to oppose the request for a “report on compliance” with Judge Roberts’ 2005 order (download here).

Although congressional committees, the Justice Department and the CIA are all pursuing investigations into the tapes’ destruction, the actions in federal court — the first was filed just after midnight Sunday — appeared to be moving much faster. Judge Roberts and the judge who received the first challenge, Judge Henry H. Kennedy, Jr., were expected to get prompt replies from the Justice Department.  (UPDATE Wednesday Dec. 12: Judge Kennedy has ordered the government to respond by Friday.)

In the Abdullah motion filed Monday (and cleared for release in the afternoon), argued that “inquiry into the scope of this likely spoliation of evidence should best come from the Court rather than from [Justice Department] counsel seeking ‘assurances’ from the very agency which has confessed to destruction of evidence.”

The attorneys reminded Judge Roberts that they had complained of government “illegal behavior” — “including destruction of evidence” — before he issued his evidence-preservation order.  “Out of an abundance of caution,” the attorneys recalled, they sent the order to the CIA on July 22, 2005.

According to news accounts in recent days, the CIA decided internally to destroy the two tapes in November 2005.

In asking Judge Roberts to order a compliance report, attorneys for Abdullah also requested that CIA officials and any official of other agencies “who has personal knowledge of all evidence potentially subject to the Court’s preservation order” be made available for questioning at a hearing — “subject to such security procedures as the Court may deem justified.”