U.S. District Judge Henry H. Kennedy appears inclined to back off, at least for now, from inquiring into the destruction of tapes of CIA interrogations despite his order to preserve such evidence. This is not, however, the last word for Kennedy or other judges lining up on the issue.

Kennedy called the hearing on Friday despite a demand from the Justice Department that he not “interfere” with their investigation. Kennedy seemed disinclined to take action, asking “Why should the court not permit the Department of Justice to do just that?”

There is of course ample not to do that. The Justice Department is the very party accused of contempt and obstruction. It is the institution that told judges like Judge Brinkema in Virginia that no such tapes existed when they did. More importantly, in a contempt circumstance, it is the duty of the court to make an independent inquiry. If this were a private party, it would be odd for the court to say that it wants the accused party to first investigate itself. Instead, a court issues a show cause order that tells the party that it wants to know why it should not be held in contempt. The party is then given time to muster its facts and filings. This would have been the better course for the court. Instead, the court is practically leaving a judicial matter (contempt) in the hands executive branch, which is investigating itself.

n June 2005, Kennedy handed down an order for the Administration to preserve “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”

Five months later, the CIA destroyed the interrogation videos and the Administration is relying on a technicality — the two suspects tortured in the videos were not in Cuba. However, such preservation orders are supposed to be given liberal interpretation. Moreover, the government knew that the tapes have been sought by Congress and other courts. Finally, it knew that the tapes would likely be sought in this and other cases, including in the inevitable filings of Abu Zubaydah and Abd al-Rahim al-Nashiri.

In addition to obstruction, false statements, conspiracy, and perjury, there is spoliation where there is the intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or defend a claim. This applies to “pending or reasonably foreseeable litigation.” It has been defined “the destruction or significant alteration of evidence, or the failure to preserve crucial items as evidence in pending or reasonably foreseeable litigation.” This would clear meet that standard in my view.

As for Kennedy, he will be only the first of courts to raise the issue with Brinkema being the next. Congress is also moving forward. The committee to watch is John Conyers’ Judiciary Committee and the House Intelligence Committee. The Senate’s poor record on torture makes its efforts less convincing.

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