What the Government Claims Didn’t Get Videotaped

Earlier, I reported that Judge Gladys Kessler had held the government in contempt for failing to follow her order that they videotape the habeas testimony of Mohammed al-Adahi. As part of her contempt order, she ordered the government to make the transcripts more readily available. Eventually those documents should be here. But in the meantime, I’ve liberated them from PACER (part one, part two).

The Visual Aspects Not Videotaped

The transcripts are interesting for two reasons. First, they show that the defense counsel and the Judge highlighted the filming that was supposed to be going on. Kessler emphasizes that when the hearing starts.

THE COURT: Good afternoon, ladies and gentlemen. This is the case of Mohammed Al-Adahi versus Barack Obama, CA 05-280. All counsel are present.
We are going to have videotaped testimony this afternoon I do believe from the petitioner, Mr. Al-Adahi. He will be testifying from Guantanamo.

Then, al-Adahi’s defense counsel in DC warned that those in Gitmo might be sweating on account of the lack of air conditioning.

MR. CHANDLER: A couple of minor items, Your Honor.

First, in the room in Guantanamo there is no air conditioning. Ms. Wilhelm said that may speed up her questioning. But if you see people perspiring profusely, it is because they are in the Caribbean with no air conditioning.

Then there’s an exchange between Chandler and Kessler in which the Chandler warns Kessler that al-Adahi is chained to the floor, which appears to frazzle Kessler.

MR. CHANDLER: There was a third thing I meant to call to the court’s attention, and that is that Mr. AI-Adahi is chained to the floor in Guantanamo.

THE COURT: I see. All right. Mr. AI-Adahi is now going to testify, and he does need to be sworn in. I know that he is using his religious book, the Koran, and of course that is acceptable to the court. Mr. AI-Adahi, would you please –oh, he cannot stand. I am sorry. Excuse me.

MR. CHANDLER: He can stand, he just can’t move around.

MS. WILHELM: Yes, Your Honor he can stand.

THE COURT: Oh, he can. All right. Would you please stand up.

In other words, Kessler and the defense counsel were all taking heightened note of the visual aspects of the scene, and al-Adahi’s own lawyer was arguably playing aspects of that image–the perspiration, the manacles–up for the videotape. Of course, had they actually released a videotape, that would heighten the focus on visual cues like a human chained to the floor in a sweltering room. But as it happens, the government claims that no such videotape exists.

The Bad Government Lawyering

The other notable thing about the transcripts is they reveal how weak the government’s argument is. In response to questioning from his lawyer, al-Adahi explained that he traveled in July 2001 with his sister from Yemen to Afghanistan to deliver her–she had had an arranged marriage to someone in Kandahar–to her new husband. At the wedding celebration, al-Adahi met Osama bin Laden. And then, bin Laden contacted al-Adahi to learn details of affairs in Yemen. From these two meetings and al-Adahi’s failed attempt to get weapons training in the al-Farouq camp (as well as pretty suspect evidence from another detainee at Gitmo), the government claimed that al-Adahi was a guard for bin Laden and a trainer (rather than a failed trainee) of extremists.

When the government cross-examines al-Adahi, DOJ lawyer Hunter Bennett tries hard to push al-Adahi to state two things: that he was happy that his sister’s wedding ceremony was attended by bin Laden, and that he believed in jihad generally–meaning he believed in bin Laden’s jihad. Al-Adahi draws a parallel between Congress declaring a war–thus making that war just–and a scholar issuing a fatwa.

MR. BENNETT: Q. Mr. AI-Adahi, yesterday when you were testifying you said: “Anybody who fights people in a country that they want to invade other countries, that is jihad, according to religion, not to desire.” Is that correct, sir?

A. Yes. A fatwa has to be issued from the scholar working in the same country or other country. As you call it, war against another country, we call it jihad. Your Congress will decide, but our scholar will decide. With approval of the president it is legitimate.

And when Bennett presses al-Adahi on whether his now brother-in-law, Riyadh, fought against the Russians, al-Adahi notes that the US supported that jihad.

Q. You mentioned yesterday, sir, that your brother-in-law, that your brother-in-law, Riyadh, fought in Afghanistan against the Soviets, correct?

A. I believe that. He did not tell me that.
Q. Do you know other people who fought in Afghanistan against the Soviets?

A. When I was asked yesterday on the definition of mujahidin, I said I heard that there were men that fought against the Soviet Union, and they fought against the alliance after the departure of the Soviets. And the war was legitimate, and the international and American -everything was legitimate to America up until September incidents.

Bennett tries to change the subject from American approval for “jihad” to a belief that occupation justifies jihad. Very quickly, however, al-Adahi brings the conversation back to wars the US approved–in this case, the Yemenese Civil War in 1994, the only war al-Adahi claims he ever trained for.

Q. To go back, the fight against Russia or against the Soviets was legitimate because the Soviet military was stationed in Afghanistan, correct?

A. These people –this question should be answered by the scholar who said that jihad is legitimate.

Q. But you also said, sir, that jihad was legitimate when you testified yesterday, correct?

A. It is not me who is going to decide that jihad is legitimate by the country. It is not for me to decide. The scholar will decide. I did not participate in the Russian war or any other war.
I prepared myself in the war in 1994 in Yemen. The Yemeni people were ready for war. The whole international community saw and heard. The victory was blessed by all of the European countries, and America, and our country.

I have no idea whether al-Adahi is telling the truth or not. But the effect is clear: either out of sincere truth or superior intellect, al-Adahi (not his lawyer) kicked the shit out of Bennett’s attempts to implicate him, always bringing the question of jihad back to the wars the US supported.

Now, I have no reason to believe the government’s really weak lawyering explains why they didn’t take–or chose not to produce–the videotape Kessler ordered.

But I can see why they wouldn’t want such videotapes floating around.

22 replies
  1. earlofhuntingdon says:

    How cheerfully would any defendant be, going into a court hearing and having to testify while chained to the floor. The humiliation, the personality-breaking, is unrelenting. It says, “We’ve got you, no matter what this court may say or do,” not only to al-Adahi, but to all prisoners. No wonder the government didn’t make or can’t find the recording of the testimony.

  2. earlofhuntingdon says:

    The government, in mock Jon Stewart fashion, seems to be arguing that thought crimes are actionable. “You liked the guy, he did something we consider bad, you must be bad, too.” Tell me the government has more.

    We’ve said it before, but we are seriously into Capt. Dreyfus territory here. The government is defending its claims, not on their merits, but because they are the government’s claims, and because the government can never be wrong. George Bush did take us back in time over a hundred years, to the Gilded Age and the fears of pre-war Edwardian Europe. Mr. Obama seems content not to contest or resurrect or bring us back to the future, but to accommodate.

    • bobschacht says:

      The government, in mock Jon Stewart fashion, seems to be arguing that thought crimes are actionable.

      Brings to my mind not Jon Stewart, but “Minority Report.” I think that’s where Dick Cheney wanted to go.

      Bob in AZ

  3. Peterr says:

    I’d love to see Kessler ask for a timeline of events surrounding the video she ordered made.

    Who was the video tech? Who oversaw that person’s work? Who checked to see if the video recording process was functioning properly? Did it get recorded properly and later disappear, or did the equipment malfunction and not record it in the first place?

    If it was the latter, whose responsibility was it to maintain the equipment? Who was responsible for seeing that it was working properly? Where is the malfunctioning recorder now? Can it be examined?

    If it was the former, who took custody of the recording from the video tech? When, exactly, was it determined that it had gone missing? Who had access to it before that point?

    Lots and lots of questions, and I hope Kessler can get some DOJ/DOD folks in her courtroom and placed under oath so she can ask them — if only to make them and their bosses very, very uncomfortable.

    • emptywheel says:

      I haven’t gotten that far in the docket–she has received a partial explanation and says the plaintiff hasn’t proven the non-taping was deliberate. But she’s asking for a more complete description as part of her contempt ruling.

      • bmaz says:

        I fail to see why there is any necessity for the plaintiff to have a burden to prove intent. There was a crystal clear order in place, there were crystal clear references made to the expectation that it was indeed being videotaped on the record at the start of the proceedings and it was the government’s assigned and assumed duty to perform the videotaping. They did not; it should be their burden to demonstrate a reasonable excuse and reason that it was not intentional or a reckless disregard, not that of the plaintiff to show otherwise

        • emptywheel says:

          Kessler used intent as the justification for doing civil, not criminal contempt. (That, and probably that criminal contempt will get you into scary separation of powers issues that everyone save Lamberth seems to be shying away from).

        • bmaz says:

          Well I dunno, maybe, but I still don’t get the discussion of the plaintiff not proving intent. It was a throwaway term by plaintiff’s counsel; any lawyer in that position would have called the failure intentional – it is like a cop saying a dwi suspect has the “odor of alcohol” or “bloodshot and watery eyes” – just terms that are rote and always said no matter what the real circumstances. But the plaintiff counsel is not in the head of the defendant, couldn’t “prove” the assertion, and the court merely had to make its own determination in that regard. I am just not particularly crazy or comfortable with the insinuation that the plaintiff had some burden in this regard. I am probably being chippy I guess, but that is how it strikes me.

    • Stephen says:

      I believe the same procedure would or should have been applied to the mystery of all the WH missing emails. Put all the worker bees and contractor employees under oath and start drilling.

  4. earlofhuntingdon says:

    You’re right, al-Adahi kept his cool. He answered tightly and kept to facts he knew personally, while being chained to the floor and interrogated by a foreign government’s prosecutor.

    Mr. Bennett, on the other hand, seemed inept in this excerpt. The logic to his line of questioning seemed to be this. Al-Adahi approved of armed resistance by Afghans against the Russian invaders. He, therefore, approved of armed resistance against the US military. He must have committed some act in furtherance of that belief. That action was somehow illegal under applicable international or local law.

    Mr. Bennett seems to be missing a few facts and entirely missing their causal link, if any. The entire international community supported Afghan resistance to the 1979 Russian invasion, the US most spectacularly. Emotional support for a 30 year-old war does not establish emotional support for the current war. It does not come close to estbablishing that al-Adahi acted to support that resistance – even if he wanted to – or that that action, if there had been any, would violate the law. Resistance, per se, to a US occupying army is not illegal.

    An equally valid characterization is that a famous Islamic personality appeared at a public wedding, he was charismatic and I was in awe of him, just like American teenagers or groupies are in awe of a pop star or government leader. Being in awe doesn’t establish intent, ability to act, and action, or that such action violates then existing law.

    Moreover, al-Adahi’s disciplined answers meant that Bennett didn’t build the links in his chain or bind them together, not with this testimony.

    • JTMinIA says:

      “The entire international community supported Afghan resistance to the 1979 Russian invasion…”

      IIRC, the Russians weren’t too keen on the resistance. Maybe we should just render al-Adahi to Moscow and let Putin deal with him. Torture is like a bicycle: you never forget how to use it and a fish doesn’t need one. I’ll bet some of Putin’s old buddies could do better than Bennett.

  5. orionATL says:

    Quick question

    Regarding the lack of leadership the federal judiciary cpuld be providing
    Our society but is not,

    Why the hell didn’t judge kessler order the prisoner unchained for the deposition/judicial questioning?

    “counsel, see that the defendent is unchained and provided a comfortable chair from which to testify.”

    Is such a demand by a federal district judge really to
    Much to expect of our federal judiciary?

    • bmaz says:

      Eh, I am not sure that would really be in her purview with the subject in a military facility under care, custody and control of the military personnel at that facility. Could she have attempted something i this vein; sure, but it is not surprising in the least that she did not.

  6. timbo says:

    My guess is that the non-taping became deliberate…like after someone actually looked at the Geneva Convention and realized that taping a prisoner of war being humiliated might be a violation. Or…maybe that’s too shallow an explanation…

    • bobschacht says:

      I think you’re exactly right: the tape would probably have proven that war crimes had been committed- there were things that the tape would show that the transcript would not.

      Bob in AZ

  7. orionATL says:


    Leadership does, it does not second guess.


    No one

    But the request would set off a chain
    Reaction of behaviors.

    And then the next
    A demand

    And the

    That’s how
    Revolutions begin .

  8. Chief says:

    I do not know when the hearing where he was chained to the floor took place. If it was very recent, my recollection is that Gitmo is not that steamy in December. I spent a lot of time in and out of Gitmo in the early 60s. Summer months are moderately bad, tho not nearly as hot as the Red Sea and the Suez Canal. Winter months are moderately nice. H-m-m-m-m, one must wonder why the “profuse sweating” mustn’t one.

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