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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
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Judge Finds Pentagon in Contempt in Gitmo Case

(CN) - A federal judge in Washington, D.C., found the Department of Defense in contempt of court for not videotaping the testimony of a Guantanamo Bay detainee for the press and public.

U.S. District Judge Gladys Kessler said the agency violated her order to videotape Yemeni prisoner Mohammad al-Adahi's testimony at a June hearing. The hearing was closed to the public due to its classified nature, so Kessler directed the government to videotape the full testimony and cross-examination, and to release a redacted version for the news media and public.

In July, the Defense Department told the court that al-Adahi's testimony had not been videotaped. It claimed its actions were "inadvertent" and the error was "due to oversight and miscommunication." The following day, al-Adahi requested that the records be made public.

"[T]here is no question that there is clear and convincing evidence that the government has violated a clear and unambiguous court order," Kessler wrote. "Therefore, this court now holds the United States Government in civil contempt."

Al-Adahi said that as a sanction for the government's violation, he should "be brought to Washington, D.C. to testify in person and in public, without being subjected to cross-examination," the order states. Kessler rejected the proposal, citing logistical and security concerns, and the fact that his proposal does not cure the error, because the hearing has already passed.

The government opposed sanctions, saying the transcript of al-Adahi's hearing is available online. But, Kessler wrote, "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."

But she declined to find the Pentagon in criminal contempt or issue punitive sanctions. Because al-Adahi prevailed on his habeas corpus petition in August, he can't show prejudice or intolerable burden, Kessler said.

The judge ordered that the transcript be posted on the federal court's public information Web page for Guantanamo Bay cases and gave the government 30 days to submit a detailed explanation of the steps it's taking to avoid future "inadvertent" errors.

In September, the government appealed the court's decision to release al-Adahi.

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