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Destroying CIA tapes didn't violate order, administration says

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  • NEW: Administration argues CIA tapes not covered by court order
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WASHINGTON (CNN) -- The Bush administration argued Friday that the CIA's destruction of videotapes that showed the interrogations of two al Qaeda suspects did not violate a court order because the suspects were not at Guantanamo Bay, Cuba.

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David Remes, an attorney who represents Guantanamo Bay detainees, asked the court to investigate.

U.S. District Court Judge Henry Kennedy, who had ordered the hearing earlier this week, said he will consider the government's arguments. The hearing lasted about an hour.

Kennedy had issued a court order in June 2005 that said "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay" must be preserved.

Joseph Hunt, an administration attorney, said the men in the videos were held at secret locations and did not fall under the category of those who were "now at" Guantanamo in Cuba.

"It is inconceivable that the destruction of the tapes could have violated the order," Hunt told the judge.

The administration's legal team also argued that if the judge were to open a public investigation into the tapes, it would "compromise the Department of Justice inquiry into the matter."

But David Remes, who represents 11 other prisoners argued that "where there is smoke there is fire."

He said he is concerned the government may have destroyed videos of other interrogations as well, and added "the government is not entitled to the presumption of regularity."

Remes asked the judge to investigate whether other tapes have been destroyed. He admitted that the request goes beyond the motions he filed in 2005 on behalf of his clients that led to Kennedy's previous court order.

According to The Associated Press, Kennedy sounded reluctant to initiate an independent inquiry.

"Why should the court not permit the Department of Justice to do just that?" Kennedy asked, according to the AP.

In an emergency request filed Monday, lawyers for a group of prisoners held by the U.S. military at Guantanamo Bay urged the judge to step in now.

They accused the White House of blocking outside inquiry into the tapes and trying to ensure that only federal agencies implicated in the destruction would carry out an internal inquiry.

The CIA admitted earlier this month to videotaping the interrogations of al Qaeda suspects Abu Zubaydah and Abd al-Rahim al-Nashiri in 2002. The tapes reportedly show rough interrogation techniques, including the use of "waterboarding," which simulates drowning.

CIA Director Michael Hayden said the tapes were destroyed in 2005 because, he said, national security could have been compromised by revealing the identities of the interrogators.

The administration argues that the tapes of the two interrogations were technically not covered by Kennedy's order to preserve evidence because Zubaydah and al-Nashiri were not held at Guantanamo at the time of the order.

But lawyers for several other Guantanamo prisoners fighting their detention in federal courts said the government defied similar orders to preserve evidence that could clear their clients of wrongdoing. Video Watch President Bush discuss case »

Legal experts expect Kennedy to use Friday's hearing to establish whether further hearings are necessary in the case.

In another development relating to the interrogation of Zubaydah, the CIA has asked the Justice Department to investigate whether former agency officer John Kiriakou illegally disclosed classified information about his capture and interrogation, government officials said.

Kiriakou last week spoke with media agencies, including CNN. He said U.S. interrogators drew valuable information from Zubaydah by "waterboarding" him. Kiriakou also said the procedure amounts to torture and should be retired.

Kiriakou said he was not present when other agents used the technique on Zubaydah, but that he was told the al Qaeda suspect lasted 30 or 35 seconds. Kiriakou said he himself was subjected to the treatment during his training, and lasted about five seconds before having to stop. E-mail to a friend E-mail to a friend

CNN's Kelli Arena, Paul Courson, Ted Barrett and Pam Benson contributed to this report.

Copyright 2007 CNN. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed. Associated Press contributed to this report.

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