Federal Judiciary

Pentagon held in contempt

By Akin Gump Supreme Court Practice Group

A federal judge ruled on Thursday that the Defense Department was in contempt of court, for failing to videotape testimony given by a Guantanamo Bay detainee by teleconference at a court hearing in June.  U.S. District Judge Gladys Kessler wanted the taping to be done, she wrote in a contempt ruling, in order to give the public and press at least a glimpse of “an actual Guantanamo Bay trial.”  She wrote: “There is intense national and international interest in the conduct of these proceedings.”  She imposed a mild sanction for the failure, deciding that the incident did not justify a criminal finding.

Mohammed Al-Adahi, a Yemeni national, was a witness at his habeas hearing in June, appearing electronically from Guantanamo; he appeared in chains.  The hearing was behind closed-doors, but Judge Kessler expected a censored version of a videotape — cutting out any secret information — to be made available publicly later.  His appearance, however, did not get videotaped, and lawyers for the Pentagon said that was “inadvertent” and was the result of “oversight and miscommunication.”  Al-Adahi’s lawyers, however, contended that the Pentagon had acted “to conceal the brutality of Guantanamo from the American public,” and asked for a contempt finding with sanctions.

The judge concluded that the Pentagon action was not “willful,” so said “punitive sanctions” were not merited.  Instead, after decreeing the Pentagon “in civil contempt of court for failing to comply with this court’s order,” she ordered the court clerk to post a transcript of Al-Adahi’s testimony on a website where District Court actions in Guantanamo cases are displayed within easy electronic reach of the public.

She also gave the Pentagon 30 days to provide “a detailed explanation of all steps taken to ensure that such errors not occur in the future.”

The judge declined to impose two sanctions that had been sought by Al-Adahi’s lawyers.  First, she refused an order that he be brought to Washington to give his testimony in public, appearing in chains again, and without being subjected to any cross-examination by government lawyers. Second, she declined to order his immediate release from Guantanamo Bay.  She had already ruled in August that he was entitled to be freed, but limited his relief at that time to an order to the government to pursue diplomatic AAsteps to accomplish his actual release and resettlement elsewhere.A

The government has appealed the Al-Adahi release order to the D.C. Circuit Court, and the case is now pending there.

Full post as published by SCOTUSBLOG on December 10, 2009 (boomark / email).