Court orders Bush administration to preserve possible evidence of torture
By Carol Rosenberg | McClatchy Newspapers
A federal appeals court in Washington, D.C., issued a preliminary order on Tuesday directing the Bush administration to preserve any evidence that might show that a former Baltimore resident was tortured during his three years in secret CIA detention.
The order, by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, gave the government until Dec. 20 to respond to a court filing last week that accused the CIA of torturing Majid Khan, 27.
Khan is among 15 high-value detainees who once were held by the CIA but are now in military custody at the prison camp for suspected terrorists at Guantanamo Bay, Cuba.
Khan's lawyers requested the court action last week, after CIA Director Michael Hayden acknowledged that the agency had destroyed videotapes of the interrogations of two other Guantanamo detainees who, like Khan, had spent years in secret CIA custody.
Khan, who was a legal U.S. resident and graduated from a suburban Baltimore high school, hasn't been charged with a crime. Pentagon officials claim that he was assigned by the reputed mastermind of the Sept. 11, 2001, terrorist attacks, Khalid Sheikh Mohammed, to research "the poisoning of U.S. water reservoirs and the possibility of blowing up gas stations.''
Of the 15 captives formerly held by the CIA, only Khan has been allowed to see his attorneys.
Based on the meetings, his attorneys claimed in a 25-page motion that there was ample proof that their client had been tortured, and they asked the appeals court to order that evidence be preserved. Under the Military Commissions Act that Congress passed last year, the Washington appeals court is the only civilian court with jurisdiction to hear detainee issues.
It's impossible to verify the attorneys' claims independently. Intelligence officers blacked out major portions of their filing before it was released publicly.
In its order, the appeals court directed Defense Secretary Robert Gates to
take all measures necessary to preserve the material described in the motion for preservation of torture evidence pending the remainder of briefing on that motion and further order of the court.''
The judges issuing the order were Judith W. Rogers, Merrick B. Garland and Thomas B. Griffith. Rogers and Garland were appointed to the court by President Clinton. Griffith was appointed by the current President Bush.
(Rosenberg reports for The Miami Herald.)
CIA Destroyed Tapes Despite Court Orders
Email this Story
Dec 12, 6:53 AM (ET)
By MATT APUZZO 
(AP) Attorney David Remes speaks to reporters outside the Supreme Court in Washington in this Dec. 5,...
Full Image
WASHINGTON (AP) - 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."
(AP) Undated handout file photo provided by Judge Kessler's Office showing U.S. District Judge Gladys...
Full Image
U.S. District Judge Gladys Kessler issued a nearly identical order that July. 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 and the government has not filed a response to Remes' request.
---
Associated Press Writer Lara Jakes Jordan contributed to this report.
|
WASHINGTON (AP) - 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."
|
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 and the government has not filed a response to Remes' request.
---
Associated Press Writer Lara Jakes Jordan contributed to this report.
Just a reminder -- in the DC Madame case:
Breaking News: Federal District Judge Gladys Kessler Removed from Palfrey Case
CIA chief faces grilling amid charges of torture
WASHINGTON -- The director of the CIA failed Tuesday to quell anger in Congress over the US spy agency's destruction of videos allegedly depicting the torture of terror suspects, as a former interrogator told media that detainees underwent waterboarding.
CIA chief Michael Hayden was grilled behind closed doors by the Senate Intelligence Committee about his revelation last week that the tapes were destroyed in 2005 -- just when Congress was investigating allegations of US abuse of detainees.
After the hearing, Hayden told reporters he was unable to provide all the facts about the episode since it occurred before he took over the Central Intelligence Agency in 2006. He said he promised the committee to provide witnesses that could answer their questions.
With the White House insisting that the United States does not practice torture, Hayden will face tougher questioning on Wednesday before the House Intelligence Committee.
The chairman of the Senate Intelligence Committee, John Rockefeller, told reporters he planned to call to testify in the next few days CIA General Counsel John Rizzo, CIA Inspector General John Helgerson and probably also Jose Rodriguez, the ex-chief of the CIA's clandestine service who reportedly made the decision to dispose of the tapes.
Meanwhile in a separate case on Tuesday a federal appeals court ordered the US government to preserve evidence related to claims by Guantanamo inmate Majid Khan that he was tortured while in CIA detention.
The preliminary order said the government had to protect any evidence as it weighed assertions by Khan, a Pakistani and legal US resident of Baltimore, that he was held in secret and tortured for three years by the spy agency before he was moved to Guantanamo in 2006.
The White House reiterated, however, that the United States does not practice torture.
"I can say that any interrogations have been legal and that they have been fully briefed to the United States Congress," said spokeswoman Dana Perino when pressed by reporters to address the newest revelations.
"I am saying that the United States does not torture," she added.
The affair put the Bush administration on the defensive again over its treatment of suspects in the "war on terror" launched in the wake of the September 11, 2001 attacks.
Democrats expressed doubt and anger over the administration's explanations of the 2005 destruction of the interrogation videos.
"This latest news of destroyed tapes raises far more questions than we have answers," Democratic Senate Majority Leader Harry Reid said Tuesday ahead of the hearing.
"Who was responsible for destroying the tapes? Was something being covered up? The possibility of obstruction of justice is very real," he said.
Representative Jane Harman said the timing of the tapes' destruction raised grave questions about a possible cover-up.
"My first reaction is that it was a very bad decision and there will not be a way to explain it away,"Harman told PBS television on Tuesday.
"2005 was a time when both Intelligence Committees were looking at the subject of interrogations policy...And it was a time when several courts -- federal courts -- were asking for all relevant information from our intelligence community with respect to interrogations," she said.
The Justice Department and the CIA's internal watchdog have opened a preliminary inquiry into the affair amid expectations a full-blown investigation will follow.
The tapes reportedly show harsh interrogation methods, including "waterboarding," a form of simulated drowning that human rights groups, lawmakers and a former CIA employee describe as torture.
Retired agent John Kiriakou, who led a CIA team that captured and interrogated Al-Qaeda suspect Abu Zubaydah, said using the "waterboarding" technique was torture, but was necessary and yielded crucial information.
"I have no doubt that the information gleaned from Abu Zubaydah stopped terror attacks and saved lives," he told CNN news on Tuesday.
The technique involves covering a suspect's mouth with material and pouring water over it, prompting a choking sensation that feels like drowning. Kiriakou said the method broke Zubaydah in about 30 seconds.
Hayden has denied the use of torture and said the tapes, intended as an internal check on how interrogations were carried out, were destroyed to prevent any leak that could identify and endanger CIA agents.
Kiriakou told NBC news Tuesday that the decision to use waterboarding "was made at the White House with concurrence from the National Security Council and Justice Department."
Copyright 2007 Agence France-Presse. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Lawmakers launch waterboarding investigation
By Andy Sullivan Tue Dec 11, 6:42 PM ET
WASHINGTON (Reuters) - U.S. lawmakers on Tuesday began investigating why the CIA destroyed videotapes that recorded al Qaeda suspects undergoing waterboarding, while a former interrogator said the controversial technique yielded important information but amounted to torture.
CIA Director Michael Hayden testified behind closed doors to the Senate Intelligence Committee, which has launched one of several investigations to determine if the agency broke any laws when it destroyed the tapes in 2005.
"There are other people in the agency who know about this far better than I, and I have committed them to come on down and answer all the questions the committee might have," Hayden said after the hearing.
Many countries, U.S. lawmakers and human rights groups have denounced the simulated drowning technique as torture. Reports of its use, as well as harsh treatment of terrorist suspects, have damaged the U.S. image around the world.
The full House of Representatives could vote as early as Wednesday to outlaw waterboarding. Drafted by negotiators for the House and Senate Intelligence committees, the measure would require U.S. interrogators to comply with the Army Field Manual, which bans interrogation methods seen as torture.
A former CIA interrogator said waterboarding has saved lives in the war against al Qaeda.
John Kiriakou, who now works in the private sector, told several U.S. news outlets that suspected al Qaeda lieutenant Abu Zubaida started cooperating after being waterboarded for less than a minute by CIA officials in 2002.
Kiriakou said he now believes waterboarding is torture.
Critics have charged that the CIA destroyed the tape of Abu Zubaida, along with that of another al Qaeda suspect, to hide illegal torture. The agency has said it destroyed the tapes in 2005 to protect the interrogators from possible retaliation.
It is believed that the CIA has not used waterboarding since 2003.
The Washington Post reported that a judge had ordered the tapes to be preserved as possible evidence in a lawsuit filed by prisoners at the U.S. Guantanamo Bay naval base in Cuba, where the United States holds captured terrorism suspects.
SEVERAL INVESTIGATIONS
Hayden is scheduled to testify to the House Intelligence Committee on Wednesday. The Justice Department and the CIA have started a joint preliminary investigation. Leaders of the Senate Judiciary Committee have also urged the Justice Department to explain what it knew of the tapes.
Attorney General Michael Mukasey did not rule out investigating the White House and the Justice Department.
"We'll find out what the facts are and if there's law to be applied it'll be applied," Mukasey said at a news conference.
Homeland Security Secretary Michael Chertoff declined to say whether he knew about the tapes when he headed the Justice Department's criminal division between 2001 and 2003.
At a separate Senate hearing, a U.S. legal adviser at the Guantanamo Bay prison did not rule out using evidence collected from waterboarding in military trials of detainees there, irritating some lawmakers.
"Torture is prohibited under U.S. law," Air Force Brig. Gen. Thomas Hartman told a Senate Judiciary subcommittee. But when California Democratic Sen. Dianne Feinstein asked whether that meant that evidence from waterboarding was not used, he replied: "No ma'am, I didn't say that."
Delaware Sen. Joseph Biden, a Democratic presidential candidate, called on the White House to preserve all records relating to the destroyed tapes.
President George W. Bush said he didn't know about them.
"My first recollection of whether the tapes existed or whether they were destroyed was when Michael Hayden briefed me," Bush told ABC News. "It will be interesting to know what the true facts are."
(Additional reporting by Susan Cornwell, Thomas Ferraro and Tabassum Zakaria; editing by David Alexander and David Storey)
No comments:
Post a Comment