A federal judge on Friday declined to rule immediately on a request to compel the government to explain in detail the destruction of C.I.A. videotapes showing the harsh interrogation of two suspected Al Qaeda operatives.
District Judge Henry H. Kennedy said he would rule later on a request by lawyers for a dozen Yemeni prisoners being held at Guantánamo Bay, Cuba, that he order such a hearing.
But Judge Kennedy, who heard a motion from the prisoners’ lawyers, appeared at one point to be at least partly swayed by Bush administration lawyers that he should not get more deeply involved while Attorney General Michael B. Mukasey is undertaking one of the inquiries into the tapes’ destruction.
“Why should the court not permit the Department of Justice to do just that?” Judge Kennedy asked David H. Remes, a lawyer for the detainees.
For Mr. Remes, the answer was simple. “Plainly, the government wants only foxes guarding the henhouse,” he asserted in his motion. Considering the government’s behavior so far, Mr. Remes argued, the Justice Department is not entitled to a presumption that it will do the right thing.
The destruction in 2005 of the videotapes, disclosed earlier this month, has caused a furor in the capital. Critics of the administration have seized on the episode as further evidence that it may have a lot to hide in its treatment of detainees. In addition to a joint inquiry by the Justice Department and the Central Intelligence Agency’s own inspector general’s office, at least one investigation has been begun in Congress.
Lawyers for the detainees say the destruction of the tapes may have violated an order issued by Judge Kennedy himself earlier in 2005, and may be a sign that other evidence was destroyed.
Government lawyers argued, in part, that the detainees’ lawyers have not even shown convincingly that their clients were covered by Judge Kennedy’s order of June 10, 2005, since the order applied only to prisoners who were indisputably at Guantánamo Bay on June 10, and there is a question about the whereabouts of at least some of the detainees on that date.