Obama Administration Held in Contempt for Hiding Gitmo Testimony

Yesterday, I pointed to this language from the Government’s amicus brief in the Mohawk case.

The Executive cannot be expected to persist in withholding information that a court has ordered to be disclosed; to suggest otherwise would be to invite the “unseemly” interbranch conflict that this Court declined to let unfold in Nixon.

The government would never withhold information after a Court ordered it to hand over the information. Oh no, it would never do that!!!

Only, it would do that.

Just today, in fact, Judge Gladys Kessler just held the government in contempt for totally ignoring one of her orders: to video tape the habeas testimony of Gitmo detainee Mohammed Al-Adahi.

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.

[snip]

By requiring the Government to videotape Petitioner’s direct testimony and crossexamination, 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 noncompliance with court orders.

[snip]

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;

Mind you, this is effectively just a slap on the wrist. This is just civil, not criminal, contempt. And the government does not have to make a new videotape of al-Adahi’s testimony. And Kessler did not order the government to release al-Adahi, even though she earlier ruled in his favor on the habeas petition (the government is appealing).

So, once again, the government has played games with a detainee videotape (this time, by not making it) and gotten away with it. While Kessler ruled that al-Adahi’s lawyers had not proven the government had done this intentionally, there’s a very well established pattern here of the government repeatedly ensuring that no videotape evidence from detainees exists–at least publicly.

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24 replies
  1. MaryCh says:

    So how does one hold an Administration accountable for obstruction of justice?

    I guess the preceding question would be what is required to establish a pattern and practice of obstruction?

  2. earlofhuntingdon says:

    Pretty amazing how the judge can issue a contempt citation without concluding that the failure to comply with her explicit order to tape an interview was intentional. If it were not, the government on its own, or the government on this judge’s insistence, would go back and do it.

    The government, instead, has poked a stick in this court’s eye and gotten away with the excuse: “I’m sorry, I positively, absolutely won’t do it again.” Right.

    • emptywheel says:

      We might be inching closer to real contempt. Though thus far, judges keep giving the govt the benefit of the doubt. They need to all get together, compare notes, and say “enough!”

      • bmaz says:

        They may have been headed in that direction behind Lamberth; exactly why the government suddenly got off its ass and bought off Horn. It was, from their perspective, a very smart move I think.

      • Mary says:

        This is why I’ve been pushing that, more so than a “torture commission” what we really need is to be pushing on a veractiy to the tribunals investigation. Once you start the compiliations, it isn’t pretty. Throw in the historical context – that cases from Reynolds to Korematsu involve outright lies to the court by top level DOJ lawyers or Executive branch members – and it’s less pretty.

        It also begins to make a much more compelling case for less deference and puts lawyers in the cross hairs for loss of license – something without the same SOL issues as some of their torture solicitation.

        I was taking a look at this piece at the Main Justice site:
        http://www.mainjustice.com/2009/12/09/fbis-d-c-office-chief-retiring-amid-controversy/
        and it really struck me. Cheat on an open book test, and the full weight of OPR descends pretty immediately. Strip and torture a juvenile – you’re home free. Set up a whole system and regime to facilitate kidnaps and killings – you are twice golden.

  3. darms says:

    If it was myself or another of we, the people found to be in contempt of court, I or they would likely be in jail now. Instead…

  4. perris says:

    I don’t want this man running my country anymore

    I would even participate if we got the tea baggers and the “libertarians” to join us in an impeachment movement based on this administrations actions in these cases

    I am one of those people who will stay home next election, and if we don’t primary and remove obabam I am going to serioulsy vote green and pray nadar runs again

    a republican president can do FAR LESS damage then a democratic one if we are able to maintain even one majority

    if we can’t get a differant candidate running for office next cycle then I want the republican to win

      • MadDog says:

        I’m afraid then it’s gonna be a big letdown. *g*

        Per my comment early this morning, I was prepping for another day of futility in my battle against my brother’s PC infection.

        Instead, by booting the system to run entirely off a DVD of UBCD4Win, and then running its copy of Malwarebytes’ Anti-Malware against the C: hard drive of the infected system for about 30 minutes or so, it had found the offensive critter and nuked it completely.

        Today was much more satisfying than the 5 hours I spent in front of my brother’s PC on Tuesday trying everything under the sun to clean the infection (and the additional 5 hours at home in front of a couple of my PCs researching the infection and then building the DVD of UBCD4Win).

        Needless to say, I now have another brother in my debt forever. With 7 brothers and 2 sisters relying on my techie services, I own a lot of debt. *g*

        • Mary says:

          Not a letdown at all. I liked the persistence and “dammit, I ain’t quitting” aspects. Too bad they don’t have malware programs that give you vid game sound effects as the nuke the virii.

          Looks like you found all the drone stuff. I’m sure that supply thing can’t turn out anything but great. After all, when it’s something really lethal like bombs we do so well – and it’s not like young girls have been killed in leaflet drops, etc.

          • MadDog says:

            Firstly, the UBCD4Win program process of creating the UBCD4WinBuilder.iso constructed an image that took about 760 MB, but I didn’t know what size it would be beforehand, so I took the safe route and used a blank DVD.

            One of the great features of this really great free product is the fact that you can add additional “plugins” such as your own selection of utilities or anti-virus programs, etc.

            Secondly, in building my image, I decided to take advantage of one of UBCD4Win’s build features to update some of the standard anti-virus packages with their latest in virus definitions prior to creating the image.

            The reason I did this was to avoid having to do the virus definition updates after I had booted the target system from the DVD. I thought it would save time, and potentially avoid “installation” problems.

            Using a technology that is based on WinPE, one assumes that “installation” of other programs while running under WinPE might be problematic (i.e. the booting CD-DVD is “read-only”, “permissions” are not available to have “write access” to the target system’s hard drive(s), etc.).

            Again, I didn’t know how big the virus definition updates were going to be, so I played safe by burning it to a DVD.

            But, I do want to assure you Bob that, yes, you can indeed use a CD for this programs. Burning to a DVD was the safer route for me.

  5. MadDog says:

    OT – From MSNBC:

    U.S. officials say top al-Qaida leader killed
    Pakistan denies any Predator attack in mountainous province

    A high-ranking al-Qaida figure was killed Thursday in an attack by a drone aircraft in northwest Pakistan, U.S. officials told NBC News.

    The officials did not identify who was killed, except to say that it was not al-Qaida’s supreme leader, Osama bin Laden. If the report is confirmed, it would be the first time coalition forces had killed a top al-Qaida figure in almost a year…

    • Mary says:

      I thought that was a nice counterpoint to Obama’s peace prize acceptance – having someone killed while you’re picking it up – and hey, maybe even the “right” someone.

      And the military fessed up yesterday or the day before or so that the “beast of kandahar” is their updated, better than predator, drone.

      • MadDog says:

        …And the military fessed up yesterday or the day before or so that the “beast of kandahar” is their updated, better than predator, drone.

        I hadn’t seen that. Any linky? I’m still wondering why the need for a stealth drone unless it’s to foil the Pakistani radar eyes.

        • MadDog says:

          Did some googling and found it:

          US Air Force confirms ‘Beast of Kandahar’ drone

          And:

          Air Force Finally Acknowledges ‘Beast of Kandahar’ Stealth Drone Plane

          “Why does the U.S. need to have a super secret stealth UAV in Afghanistan?” he asked. “The Taliban and Al Qaeda don’t have radar seeking missiles we know of, so Predators and Global Hawks should work fine. This may mean then that Afghanistan is being used as a base of operations to fly covert surveillance missions over Iran, who do have radar based ground-to-air missiles.”

          Iran? Possibly, but I still think Pakistan airspace is its playpen.

          • MadDog says:

            And another new drone story:

            US to use missile-firing drones to supply troops in Afghanistan

            The US military plans to use drones to resupply troops fighting in Afghanistan, it emerged today.

            Faced with the task of delivering vast amounts of hardware by land and air to accompany the troop surge into Afghanistan in the coming months, the military has acquired several drones to test whether they can drop supplies into inaccessible war zones…

            …While the US military says that it is not yet clear if the drones will prove to be an effective means of supplying troops, the intention is to see if they can support or even replace military helicopters, which struggle in the high altitude of Afghanistan’s mountains.

            The drones also have another advantage over helicopters. Because they fly at far higher altitudes they are out of range of militants’ anti-aircraft fire…

            I would still be leery of drones flying overhead. What are they gonna be dropping on me? Bombs or MREs?

    • Jeff Kaye says:

      “Top Al Qaeda” leaders are like No. 2 in the old Prisoner TV show. There’s always another one waiting in the wings.

      The timing was nice… the day of Obama’s Nobel speech. Here is a gift of one of your “vicious adversaries”, oh noble leader, one we shot down by remote control missile, because we are so humane. We are so humane we offer this blood sacrifice to you on the day of your greatest triumph, for we are for peace.

      What a monumental speech, to receive the prize for “peace,” and tell the world:

      I understand why war is not popular, but I also know this: The belief that peace is desirable is rarely enough to achieve it. Peace requires responsibility. Peace entails sacrifice. That’s why NATO continues to be indispensable….

      • MadDog says:

        Sooner or later I’m betting there will be a “tragic” mistake in using Predator/Reaper/Sentinel UAVs to kill people.

        The “wrong” people will get killed. I’m not saying that this hasn’t already occurred, but that they’ve not yet killed the “right” wrong people that would generate your typical 2-day outrage on CNN et al.

        I would love to believe it would generate more than outrage. Stuff like real introspection and evaluation of the ethics, morality and legality of targeted, state-sanctioned, state-implemented, robotic killings.

        But you know as well as I do that it’s more likely to be viewed/voiced as “horses out of the barn, so why bother shutting the door” by our esteemed punditry and national “leaders”.

        And so it goes…

      • bobschacht says:

        Actually, one of the sources I heard on the news today identified the probable “top” Al Qaeda leader as #3, who’s sort of the CEO(?) of Al Qaeda, i.e., the one in charge of daily operations. Apparently, they’ve been able to snag at least half a dozen of the #3’s in the past 5 years or so. It sounds like the #3’s are the highest ranking officers who *must*, as part of their job, operate somewhat more openly in order to be effective.

        Bob in AZ

        • Jeff Kaye says:

          Guess this is something you don’t want to hear:

          “Congratulations. We are promoting you. Today you become No. 3 man at Al Qaeda.”

          “No, no,” I can imagine someone saying. “I am not worthy. Take Ahmed here. He is much more deserving of No. 3 than me.”

          Forgive the black humor…

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