Drew E. Shenkman is an Associate in our Washington, D.C. office
The U.S. District Court for the District of Columbia, in December 2009, found the Department of Defense in civil contempt for failing to videotape the habeas petition testimony of Mohammed Al-Adahi, a detainee at the U.S. Naval Base at Guantanamo Bay, Cuba, since 2002.
The ruling came on the heels of a June 2009 merits proceeding (similar to an actual trial) on a petition for a writ of habeas corpus filed on behalf of Al-Adahi, who was detained by American-led forces in Afghanistan after the September 11, 2001 terrorist attacks. Previously, to "afford the public and the press an opportunity to observe the greatest possible portion of petitioner's testimony," Judge Gladys Kessler ordered the Department of Defense (DoD)to record the proceedings by videotape. The tapes would then be made publicly available, after appropriate redaction to ameliorate the government's national security concerns.
The June 2009 proceeding lasted four days, with Al-Adahi appearing live via secure videoconferencing from a Guantanamo Bay courtroom. The court reporter transcribed the proceedings, but it was left to the DoD to videotape the testimony per the court's order. Yet, in what the government called an "oversight and miscommunication," the entire proceeding was in fact not recorded. A month after the testimony, the government filed notice with the court that the testimony had not been videotaped.
Al-Adahi moved for sanctions, demanded his immediate release and requested in camera inspection of all government communications to determine if the oversight was intentional. He also requested, in the alternative, that he be brought to Washington, D.C. to re-testify in person and in public, with his feet shackled to the floor and without cross-examination.
Judge Kessler denied Al-Adahi's requests for release and to re-testify, as well as his request for review of government communications. However, the court held the DoD in civil contempt for violating its "clear and unambiguous" order. It stated that "a picture is truly worth 1,000 words, and the full import of Petitioner's testimony cannot be gained from the cold, dry transcript alone." The court justified the ruling not only to ensure the public's right to observe as much testimony as possible, but also to "minimize damages to the public's lost opportunity to observe an actual Guantanamo Bay trial ... and to deter further non-compliance with court orders."
Judge Kessler also ordered that the transcripts of the proceedings be posted on the court's Guantanamo Bay website to "ensure maximum public access." The court also ordered the Department of Defense to submit within 30 days "a detailed explanation of all steps it has taken to ensure that such errors shall not occur in the future."
In August 2009, Judge Kessler granted Al-Adahi's habeas petition and ordered that he be returned to his native Yemen, a decision that is pending appeal. Public access to all of the court's Guantanamo Bay cases can be found on its public access website: www.dcd.uscourts.gov/public-docs/gitmo.
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