The Justice Department on Friday urged the federal courts to stay out of the current controversy over the CIA’s public admission that it has destroyed videotapes of aggressive interrogations of terrorist suspects.
“In light oif the current inquiries by the political branches into the destruction of the tapes…, it would not be appropriate to institute a judicial inquiry,” the Department told U.S. District Judge Henry H. Kennedy of Washington, D.C. Such an inquiry is not “needed at all,” it said.
The filing (download here) came in the case of Abdah, et al., v. Bush, et al. (District Court docket 04-1254). Lawyers for detainees in that case asked Judge Kennedy to open a formal inquiry into the tapes issue.
The Justice Department insisted that the CIA’s decision in 2005 to do away with two videotapes made in 2002 did not violate an order that the judge had issued in June 2005 to preserve records about torture or abuse of individuals held at Guantanamo Bay, Cuba. The two tapes were not covered by that order because the individuals questioned on them were not at Guantanamo at the time, the document said.
The detainees, it added, “have failed to demonstrate a sufficient basis for the Court to take extraordinary measures to open a judicial inquiry in circumstances such as this, particularly where the Supreme Court has admonished that such inherent powers ‘must be exercised with restraint and discretion.’”
The government also argued that Judge Kennedy lacks jurisdiction to consider the detainees’ request. The D.C. Circuit Court, it said, had ruled in the Boumediejne v. Bush case this year that aliens held outside theU.S. have no constitutional rights they can assert.
The Boumediene case is now under review in the Supreme Court, the Department noted. “Unless and until the Supreme Court acts in a way that changes the law as set forth in Boumediene,…the law in this Circuit is clear that the Court does not have jurisdiction over the subject matter of this petition.”