UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOHAMMED AL-ADAHI, et al., )
)
Petitioners, )
)
v. )
) Civil Action No. 05cv-280 (GK)
BARACK OBAMA, et al. )
)
)
Respondents. )
MEMORANDUM ORDER
Petitioner Mohammed Al-Adahi (“Al-Adahi” or “Petitioner”) is
a Yemeni citizen who has been detained at the United States Naval
Base at Guantanamo Bay Cuba since 2002. Al-Adahi v. Obama, Civ. No.
05-280, 2009 WL 2584685, at *1 (Aug. 21, 2009) [Dkt. No. 459]
(“Mem. Op.”). Al-Adahi filed a petition for a writ of habeas
corpus in 2005, which this Court granted on August 17, 2009. Id.
The Government was ordered to videotape Petitioner’s testimony at
the Merits Hearing, and then redact and maintain a copy of the
recording. Order at 1 (June 19, 2009) [Dkt. No. 423]. The
Government failed to videotape Petitioner’s testimony at that
Hearing. This matter is before the Court on Petitioner’s Motion
for Sanctions (“Pet.’s Mot.”) [Dkt. No. 447].
I. BACKGROUND
This Court heard Petitioner’s case at a four-day Merits
Hearing from June 22-26, 2009. Id. at *2. Because classified
information needed to be presented at the Hearing, proceedings had
to be closed to the public. To afford the public and the press an
opportunity to observe the greatest possible portion of
Petitioner’s testimony, the Court instructed “the Government,
through the appropriate agency, [to] videotape [Petitioner’s]
testimony and maintain copies of the complete testimony as given,
as well as a redacted version of that testimony.” Order at 1 (June
19, 2009). Petitioner testified via video-conference on June 23,
2009.
On July 23, 2009, the Government filed notice with the Court
that the Petitioner’s testimony had not been videotaped. Resp’t’s
Notice Regarding the Court’s June 19, 2009 Order at 1 [Dkt. No.
446]. On July 24, 2009, Petitioner filed a Motion for Sanctions,
requesting in camera production of records of every communication
maintained by the Department of Justice, the Department of Defense,
and other Government agencies that related to Petitioner’s
testimony. He also requested that, after review, the Court make
public unprivileged or no-longer-privileged communications. Pet.’s
Mot. at 2. Counsel also seeks release of Petitioner as a sanction
for the Government’s failure to comply with the Order, or, in the
alternative, an order that Petitioner be brought to Washington,
D.C. to testify in person and in public, without being subjected to
cross-examination. Id.
On August 17, 2009, when the Court granted Petitioner’s habeas
petition, the Government was ordered to “take all necessary and
appropriate diplomatic steps to facilitate Petitioner’s release
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forthwith”. Mem. Op. at *16. On September 21, 2009, the Government
filed a Notice of Appeal of the Court’s decision to release Al-
Adahi.
II. ANALYSIS
The Court may “punish,” at its discretion, “disobedience or
resistance to its lawful writ, process, order, rule, decree, or
command” through the issuance of a contempt citation.1 18 U.S.C.
§ 401(3) (2006); see also Local Rule 83.13(b) (noting the Court’s
“inherent power of discipline for conduct committed in the presence
of the Court”). Courts may issue a contempt citation when the
offending party has violated an order that is clear and unambiguous
and when the violation is proven by clear and convincing evidence.
See Armstrong v. Executive Office of the President, 1 F.3d 1274,
1289 (D.C. Cir 1993). Courts have classified contempt as either
criminal or civil, depending on the character and purpose of the
sanctions imposed. Gompers v. Buck’s Stove and Range Co., 221 U.S.
418, 441 (1911). Criminal contempt requires “both a contemptuous
act and a wrongful state of mind.” Cobell v. Norton, 334 F.3d
1128, 1146 (D.C. Cir. 2003). However, because the purpose of a
1
The Federal Rules of Civil Procedure also permit
sanctions for misrepresentation to the Court in a written filing
(Fed. R. Civ. P. 11(c)), failure to obey a pre-trial order (Fed. R.
Civ. P. 16(f)), or failure to make disclosures or cooperate in
discovery (Fed. R. Civ. P. 37(d)). Petitioner does not specify his
grounds for seeking sanctions, but because the facts do not fit
squarely within any of the sanction provisions of the Federal
Rules, the Court has construed Petitioner’s request as seeking
sanctions under a contempt order.
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civil contempt order is remedial, there is no requirement that the
offending conduct be willful. McComb v. Jacksonville Paper Co.,
336 U.S. 187, 500 (1949).
In this case, the Government does not dispute that the Court’s
Order was clear, nor does it deny that it violated the Order.
Resp’t’s Notice at 1. The Government contends that the Order was
violated “due to oversight and miscommunication” and that its
actions were “inadvertent.”2 Id. While Petitioner’s counsel
alleges the Government acted “to conceal the brutality of
Guantanamo from the American public,” they offer no evidence to
support their contention that the Government’s conduct was
intentional. Pet.’s Mot. at 2. Because the Court has no evidence
to indicate that the offending conduct was willful, criminal
contempt and punitive sanctions are not merited here.
Civil contempt, however, is appropriate. On this record,
there is no question that there is clear and convincing evidence
that the Government has violated a clear and unambiguous Court
Order. Therefore, this Court now holds the United States
Government in civil contempt.
Civil contempt is a remedial sanction used to obtain
compliance with a court order or to compensate for damages
2
The Government claims that “[d]ue to an oversight, the
Department of Defense failed to convey the request [sic] to
videotape the testimony to the command at Guantanamo Bay, which
would have been responsible for recording the testimony.” Resp’t’s
Opp’n at 2.
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sustained as result of noncompliance. Food Lion Inc., v. United
Food and Commercial Workers Int’l Union, 103 F.3d 1007, 1017 (D.C.
Cir. 1997). Therefore, the issue before the Court is what action
is appropriate to ensure compliance with future court orders of a
like nature and to alleviate any damage sustained by the public
because of the Government’s failure to comply with the Court’s
Order to videotape Petitioner’s testimony.
Petitioner seeks an order of release as a sanction for the
Government’s conduct. Pet.’s Mot. at 2. A District Court may
impose a sanction of dismissal for misconduct pursuant to the
Court’s “inherent power to protect its integrity and prevent abuse
of the judicial process.” Shepherd v. Am. Broad. Co., Inc. 62 F.3d
1469, 1474 (D.C. Cir. 1986). Courts may invoke three basic
justifications for the use of dismissal as a sanction against
misconduct: (1) that the other party “has been so prejudiced by the
misconduct that it would be unfair to require him to proceed
further in the case;” (2) that the party’s actions have placed an
intolerable burden on the District Court; or (3) to deter similar
conduct in the future. Shea v. Donohoe Constr. Co., 795 F.2d 1071,
1074-1075 (D.C. Cir. 1975). In this case, Petitioner cannot
demonstrate prejudice, given that he prevailed on his petition for
habeas corpus;3 nor can he show any “intolerable burden” placed on
3
Furthermore, this Court has already ordered the
Government to take all necessary and appropriate diplomatic steps
(continued...)
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the Court by virtue of the Government’s failure to videotape his
testimony.
However, that is not the end of the analysis. Because of
national security concerns, most of the Guantanamo Bay habeas
corpus hearings are classified and closed to the public. There is
intense national and international interest in the conduct of these
proceedings, as the reading of any major newspaper demonstrates.
The purpose of the Court’s Order requiring the Government to
videotape Petitioner’s testimony was to ensure the maximum amount
of public accessibility to the judicial process. By requiring the
Government to videotape Petitioner’s direct testimony and cross-
examination, and then make it public after classification review,
the Court sought to ensure that the public would have an
opportunity to observe as much of the testimony as possible. Thus,
there are two other justifications for imposing sanctions against
the Government: to minimize the damages to the public’s lost
opportunity to observe an actual Guantanamo Bay trial (or “Merits
Hearing,” as it is referred to), and to deter further non-
compliance with court orders.
As to the first, the Government argues that no sanction is
needed because the public can access the testimony through the
transcript which has been placed on the Court’s official Electronic
3
(...continued)
to secure Petitioner’s release pursuant to the grant of
Petitioner’s request for a writ of habeas corpus. Mem. Op. at *16.
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Filing System (“ECF”). That rationale is not persuasive. First,
only a limited segment of the public, i.e., lawyers, litigants,
judges, and judicial staff, regularly access ECF. Second, 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.
To ensure maximum public access to Petitioner’s testimony and
to comply with the intent of the Court’s original Order, a
transcript of Petitioner’s testimony shall be posted to the U.S.
District Court Public Information Page for Guantanamo Bay Cases,
which the public can access more easily.4 Furthermore, the
Government shall submit, within 30 days from the date of this
Order, a detailed explanation of all steps it has taken to ensure
that such errors shall not occur in the future.
Petitioner also seeks an Order that he be brought to
Washington, D.C. “in chains (as he appeared at the hearing)” to
testify in person and in public, without being subjected to cross-
examination by the Government. The Court rejects this request for
several reasons. First, the logistical and security problems would
be extremely difficult to overcome. Second, such a sanction would
not be directly related to the requirement that any punishment for
civil contempt be remedial rather than pure punishment. In other
4
Available at http://www.dcd.uscourts.gov/public-docs/gitmo.
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words, Petitioner’s proposal cannot duplicate the setting and
atmosphere of the original testimony. Third, and finally, such a
sanction would not further the purpose of the Court’s original
Order which was to allow the public to witness as much of the
actual trial as possible consistent with security and secrecy
concerns.
For all these reasons, it is this 10th day of December, 2009,
hereby
ORDERED, that the United States Department of Defense is
hereby adjudged and decreed to be in civil contempt of Court for
failing to comply with this Court’s Order of June 19, 2009,
directing Respondents to videotape Petitioner’s testimony at the
Merits Hearing in this case, and then to redact and maintain a copy
of that recording; and it is further
ORDERED, that the Clerk of Court shall post a transcript of
Petitioner’s testimony on the United States District Court Public
Information Page for Guantanamo Bay Cases; and it is further
ORDERED, that Respondents shall submit, within 30 days of the
date of this Order, a detailed explanation of all steps taken to
ensure that such errors not occur in the future; and it is further
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ORDERED, that Petitioner’s Motion for Sanctions is granted in
part and denied in part.
/s/
Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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