                    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


                                        -2-
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.

                                -3-
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.

                                         -4-
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...)

                                     -5-
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.

                                         -6-
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.


                                           -7-
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




                               -8-
     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




                               -9-
