Thursday, February 14, 2008

Defendants' Lawyers Fear Loss of Potential Evidence at Guantanamo Bay

Defendants' Lawyers Fear Loss of Potential Evidence at Guantanamo Bay

By Josh White

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Lawyers representing military detainees at Guantanamo Bay have expressed concern that the government has violated a federal court order by losing or erasing several years' worth of digital video recordings that could shed light on the legality of detainee treatment.

The concerns are based in part on a recent court filing by Guantanamo's commander, Rear Adm. Mark H. Buzby, who said video surveillance recordings in several areas of the facility have been automatically overwritten and no longer exist.

"In January 2008, it was brought to my attention that such . . . [recording] systems may have been automatically overwriting video data contained on recording devices, at predetermined intervals," Buzby wrote. "That is, only a specified number of days' worth of recorded data could be retained on the recording devices at a time."

Defense lawyers said the admission suggests that the military has not complied with a 2005 court order to preserve such evidence, even if the deletion of the recordings was inadvertent. They claim that the tapes were of potential use at forthcoming court hearings and trials, a view supported by a Seton Hall University report slated to be released today.

The report, "Captured on Tape," asserts that officials at the facility recorded more than 20,000 interrogations at Guantanamo Bay. It cited FBI statements and military investigative reports as a basis for concluding that video cameras were in interrogation booths and tapes existed.

"All interrogations are videotaped," said an April 13, 2005, report by the Office of the Army Surgeon General on operations at Guantanamo Bay, cited in the Seton Hall study. Pentagon officials declined to discuss the report or comment on the videotaping.

Military officials familiar with interrogations at the prison of a group of 14 high-value detainees over the past 16 months - including five of the six charged with criminal conspiracy on Monday - said those sessions were monitored through video cameras but not recorded. But they declined to comment on any taping of hundreds of others at the prison.

Noting that the CIA has admitted destroying videotapes of aggressive interrogations of two detainees, the authors of the Seton Hall report said the military and other government agencies present at Guantanamo have "identical motives to destroy taped investigations." They added: "The taped interrogations recorded at Guantanamo Bay are equally important to evaluating the reliability of the evidence against a detainee."

Buzby's declaration, filed in federal cases Friday and yesterday, said the video recordings were part of a surveillance system used to monitor the camps and were mostly of mundane operations. But lawyers for the detainees said they worry that the overwriting could mask important evidence.

David H. Remes, a Washington lawyer who represents Guantanamo detainees, said the overwriting of video recordings is a clear violation of the court's order.

"We'll simply never know whether these videotapes recorded torture or other abuse of our clients, because the tapes no longer exist," Remes said, referring to what he said could be considered evidence. "The government was under an affirmative obligation to preserve it. The fact that they were on automatic pilot with respect to these overrides doesn't get them off the hook."

Joshua Colangelo-Bryan, a New York lawyer who represents detainees at Guantanamo, said his clients reported seeing video cameras - some mounted, some hand-held - during their interrogations. "I don't have any problem with them videotaping interrogations, as long as they aren't discarded to protect wrongdoing," Colangelo-Bryan said. "We just don't know."

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