IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1717

NOTICE Of Respondents' Response To Order To Show Cause In Batarfi v. Gates, 05-CV-409 (EGS) by BARACK H. OBAMA, ROBERT M. GATES (Attachments: # 1 Exhibit)(Warden, Andrew)

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Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) AYMEN SAEED BATARFI, et al., Petitioners, v. ROBERT M. GATES, Secretary of Defense, et al., Respondents. Civil Action No. 05-CV-409 (EGS) RESPONDENT'S RESPONSE TO ORDER TO SHOW CAUSE On Wednesday, April 1, 2009, the Court directed Respondent to show cause no later than 12:00 p.m. on Friday, April 3, 2009, why the Government and its attorneys should not be held in contempt for failure to comply with the Court's September 22, 2008 Order to produce exculpatory information by October 6, 2008. See Transcript (April 1, 2008) at 4-5. Specifically, the Court directed Respondent to explain why a medical record of a detainee-witness relied upon by Respondent was not disclosed in response to the Court's September 22, 2008 Order. The Court also requested an explanation as to why Respondent took the position that the medical record was only "inadvertently produced," and whether the document has been produced in other Guantanamo habeas cases. The Government and its counsel should not be held in contempt. Contempt is an extraordinary remedy reserved only for clear and convincing violations of unambiguous court orders. Contempt is not appropriate in this case because the Government and its attorneys have worked diligently and in good faith to produce information concerning credibility of the detainee- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 2 of 16 witness. As explained more fully in the accompanying declaration of Terry M. Henry, the Government and its counsel have taken comprehensive steps to produce information concerning the credibility of the detainee-witness as that information has come to their attention. This is not a case in which the Government attempted to "hide the ball" concerning potential problems with the reliability of a witness. To the contrary, Respondent has been forthcoming about the potential credibility problems associated with the detainee-witness and has produced a variety of documents to Petitioner's counsel in this case, as well as the other cases in which this detainee is a witness, that potentially undermine the reliability of the detainee-witness. These documents include information disclosing the issue raised in the detainee-witness' medical record at issue in the Court's Order. Indeed, Respondent's prior disclosure of information undermining the credibility of the detainee-witness was much more explicit and likely far more helpful to Petitioner's case than the medical record at issue. The medical record of the detainee-witness was produced inadvertently when, for reasons unknown to Government counsel, it was included with the Petitioner's medical records produced in this case. The detainee's medical record was not produced earlier because the search for exculpatory information in response to the Court's September 22, 2008 Order did not include a review of the witness' medical file. At the time that search was conducted, the credibility issue reflected in the medical record had not come to the attention of counsel responsible for the search, so they did not have reason to believe that exculpatory information about this detainee would be located in his medical file. It was not until additional information was gathered in response to Judge Hogan's Amended Case Management Order, in December 2008, that the full picture regarding the detainee-witness came to light. That information was then included in a -2- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 3 of 16 package of information about the detainee-witness that was produced to Petitioner's counsel in this case, as well as to counsel in the other cases in which the detainee-witness is relied upon by Respondent. Although the Court's order in this case is broader than Judge Hogan's regarding the production of exculpatory information, Government counsel regrettably failed to evaluate whether in light of the issue regarding the detainee-witness' credibility that this package of information revealed an additional search of the detainee-witness' entire medical file for additional exculpatory information was warranted. This oversight was not intentional and Respondent currently stands ready to produce the detainee-witness' entire medical file if requested by the Court, notwithstanding the current stay of proceedings. Contempt is therefore unnecessary to enforce compliance with any outstanding order, and unjustified by any wilful disregard or disobedience of the Court's authority by the Government or its counsel. BACKGROUND As explained in the classified Declaration of Terry M. Henry being filed separately, and the March 17, 2009 Declaration of Terry M. Henry filed previously in this case, see dkt no. 176-3, the Government and its counsel have worked diligently to collect all reasonably available exculpatory information in this case. Throughout this process, the Government has been attuned to the potential issues and its disclosure obligations related to the credibility of detainees who provide inculpatory information about other Guantanamo detainees. With respect to production of credibility information related to the detainee-witness at issue in this case, the Court's September 22, 2008 Order directed Respondent to provide Petitioner's counsel with all exculpatory information reasonably available to the Government by October 6, 2008. In response to that order, Respondent produced, inter alia, documents that -3- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 4 of 16 contained information questioning the detainee-witness' credibility (but not indicating that any lack of credibility was related to a mental health issue). See Henry Decl, 5. Thus, this production of exculpatory information did not include information from the detainee-witness' medical records because at the time counsel working on the Guantanamo Bay detainee cases had not yet encountered documents raising mental health issues affecting the credibility of the detainee-witness, and therefore had no reason to believe that exculpatory information would be located in his medical records. Id. At the time this search for information was conducted, the amount of reasonably available information concerning Guantanamo Bay detainees was much less than is available today.1 This Court's Order to produce exculpatory information was one of the first such orders issued in the Guantanamo Bay habeas cases. Further, the consolidated Guantanamo Bay habeas cases pending before Judge Hogan were still in the beginning stages, with the first 50 factual returns having just been filed at the end of September. See Order, 08-MC-442 (TFH) (Sept. 19, 2008). Over time, as more factual returns were filed in the habeas cases during the Fall and Winter of 2008, more information became available concerning the detainees and their reliability as witnesses against other detainees. As additional information was gathered during the production of factual returns and in the course of discovery and in a number of cases, a more complete picture of detainees began to develop. It was against this backdrop that Respondent began to assemble additional information concerning the credibility of the detainee-witness at issue in this case. As a result of exculpatory The factual return in this case was the first to be filed after the Supreme Court issued the decision in Boumediene v. Bush, 128 S. Ct. 2229, 2269 (2008). The return was filed on August 12, 2008. -4- 1 Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 5 of 16 information searches conducted by large numbers of Department of Justice attorneys pursuant to Judge Hogan's December 16, 2008 Amended Case Management Order, and searches undertaken in connection with discovery and exculpatory obligations in the detainee-witness' own habeas case, additional information concerning the general credibility or reliability of the detaineewitness began to surface. In mid-February 2009, these documents were collected into a "credibility package," and disclosed to Petitioners' counsel in the Guantanamo Bay habeas cases, including this case, in which Respondent has relied upon the detainee-witness in the factual return. See Henry Decl., 6. As relevant here, the credibility package included information about the detainee-witness' mental health issues as they pertained to his credibility. See Henry Decl., 7. The search process leading to the production of the credibility package was undertaken largely pursuant to Judge Hogan's December 16, 2008 Case Management Order and its parameters were established by the terms of that order, which required a search of a defined universe of information that did not include medical files. However, when the credibility package was made available for production in this case, it simply did not occur to counsel handling this case to check the detainee-witness' medical file for further information regarding his mental condition. The Government acknowledges that this Court's September 22, 2008 Order to produce exculpatory information is broader than Judge Hogan's order, and it was an oversight not to consider whether the detainee-witness' medical records should have been searched for exculpatory information. See Henry Decl., 9. On January 29, 2009, the Court ordered Respondent to produce, inter alia, "all medical records compiled during Petitioner's detention at Guantanamo other than those previously -5- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 6 of 16 produced to Petitioner's counsel pursuant to FOIA responses." See Order (dkt. no. 162). On February 5, 2009, pursuant to the Court's Order, Respondent produced approximately 1,000 pages constituting the whole of Petitioner's medical records to his counsel. On February 17, 2009, Dr. Batarfi's counsel notified counsel for Respondent that a medical record pertaining to another Guantanamo Bay detainee had been included among Dr. Batarfi's medical records. Petitioner's counsel informed Government counsel of their position that the other detainee's medical record was both relevant to Dr. Batarfi's habeas corpus petition and exculpatory. On February 20, 2009, Government counsel informed Dr. Batarfi's counsel that the detaineewitness's medical record was inadvertently included among Petitioner's medical records and requested that Dr. Batarfi's counsel sequester the document pending resolution of the issue at the next status conference in the case. In contrast to the documents Respondent had already disclosed as part of the credibility package, the medical record did not, on its face, address the credibility or reliability of the detainee-witness, as explained in Mr. Henry's declaration. Henry Decl., 14 & Exh. A. Prior to the notification from Petitioner's counsel concerning the existence of the medical record, counsel for the Government had not been aware of this document, and counsel for the Government do not know why or how the documented ended up embedded with Petitioner's medical records. Henry Decl., 3. The medical record had not turned up in the Government's prior exculpatory evidence searches because the detainee-witness' medical file at Guantanamo was not reviewed as part of those searches. Rather, as explained above, when the Government undertook its search for exculpatory information in response to the Court's September 22, 2008 Order, counsel conducting the search were not aware of mental health issues affecting the -6- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 7 of 16 detaineee-witness' credibility and so did not have a basis to consider his medical file as a potential source of exculpatory information. As also explained above, medical records fell outside the scope of the search, prescribed by Judge Hogan's order, that resulted in the assembly of the credibility package bringing the detainee-witness' mental health issues to light, and Government counsel overlooked the issue of whether the broader order governing this case then required a search of the witness' medical records. On February 23, 2009, Petitioner filed a reply memorandum in support of a motion to compel discovery and presented argument that the other detainee's medical record is both relevant to his habeas case and exculpatory.2 See dkt. no. 174-4. On March 3, 2009, Dr. Batarfi's counsel informed the Government of their intent to distribute the detainee-witness' medical record to interested habeas counsel in other cases and requested Respondent's position concerning that request. That same day, the Government informed Dr. Batarfi's counsel that the Government objected to further distribution of the other detainee's confidential medical record and requested that it be sequestered akin to the procedures in Federal Rule of Civil Procedure 26(b)(5) pending resolution of the issue at the upcoming pre-trial conference, scheduled for March 19, 2009. See Henry Decl., 16-17. During the March 19, 2009, pre-trial conference, the Court issued an order from the bench permitting Petitioner to use the detainee-witness' medical record in this case and directing Respondent to produce all "other psychiatric and medical information bearing on the [detainee- Because of the timing of the discovery of the detainee-witness' medical record on February 17, 2009, Petitioner's February 13, 2009 motion to compel discovery did not address this issue. See dkt no. 174-2. Consequently, Petitioner's February 23, 2009, reply memorandum raised the issue for the first time. -7- 2 Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 8 of 16 witness'] reliability." See Transcript (March 19, 2009). The parties and the Court then discussed the issue of allowing Petitioner's counsel to share the detainee-witness' medical record with habeas counsel in other cases. In light of the Court's Order authorizing production of the other detainee's medical record, Respondent agreed that the record could be shared with other habeas counsel provided it was handled as "Protected Information" under the Protective Order entered in the Guantanamo Bay habeas litigation. Since that hearing, Dr. Batarfi's counsel have shared the detainee-witness' medical record with counsel in other habeas cases. See Henry Decl., 16. Following the pre-trial conference, the Government immediately began compiling the detainee-witness' medical records at Guantanamo Bay. The Government was in the process of collecting those records, as well as the other discovery required by the Court's March 19 Order, when the parties initiated discussions concerning an alternative resolution to this case, as suggested by the Court during the pre-trial conference. These discussions culminated on March 27, 2009 when the parties reached an agreement to stay the merits resolution of this case and all outstanding discovery in light of the decision by the Executive Order Review Task Force approving Petitioner for transfer from Guantanamo Bay. See Joint Motion To Stay (dkt. no. 178). Respondent was in the process of preparing to produce the detainee-witness' medical file and by now would have already produced the records to Petitioner's counsel were it not for the agreement to stay proceedings and all discovery obligations. Respondent, moreover, can promptly produce the detainee-witness' medical records if directed by the Court. On April 1, 2009, the Court conducted a status hearing to consider the parties' joint motion to stay the proceedings in this case. See Minute Order (March 30, 2009). In light of Government's decision to approve Petitioner for transfer from Guantanamo Bay, the parties -8- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 9 of 16 agreed that the merits proceedings and Respondent's discovery obligations, including the obligation to produce the detainee-witness' medical file, should be stayed. The Court granted this motion orally from the bench and the parties have submitted a proposed order consistent with the Court's decision. See Proposed Order (dkt. no. 180). The Court, sua sponte, also raised questions concerning the detainee-witness' medical record that the parties addressed at the pre-trial conference and directed the Government and its attorneys to show cause why they should not be held in contempt for failing to produce the medical record in response to the Court's September 22, 2008 Order to produce exculpatory evidence. See Transcript at 2-8 (April 1, 2009). For the reasons explained below, the extraordinary sanction of contempt is neither necessary nor justified to vindicate the Court's authority in this instance. ARGUMENT I. THE CIVIL CONTEMPT POWER Courts have inherent power to enforce compliance with their lawful orders through civil contempt. Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993). For more than a century, however, the law has been well-settled that contempt "is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct." California Paving Co. v. Molitor, 113 U.S. 609, 618 (1885). "In light of the [contempt] remedy's extraordinary nature, courts rightly impose it with caution." Joshi v. Professional Health Services, Inc., 817 F.2d 877, 879 n.2 (D.C. Cir. 1987). As the Supreme Court has held, "the very amplitude of the power is a warning to use it with discretion, and a command never to exert it where it is not necessary or proper." Gompers v. Buck's Stove & -9- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 10 of 16 Range Co., 221 U.S. 418, 451 (1911). Indeed, in order to prevent abuses of the contempt power and to protect those on whom the potent authority may be visited, Congress has long regulated the exercise of the contempt power by statute. See 18 U.S.C. 401 (providing that a court of the United States shall have the power to punish only certain acts as contempt, including "[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command"); In re McConnell, 370 U.S. 230, 233-34 (1962); Nye v. United States, 313 U.S. 33, 44-48 (1941); In re Brown, 454 F.2d 999, 1002 (D.C. Cir. 1971). Accordingly, civil "contempt will lie only if the putative contemnor has violated an order that is clear and unambiguous . . . and the violation must be proved by `clear and convincing' evidence." Armstrong, 1 F.3d at 1289 (citations omitted); United States v. Shelton, 539 F. Supp. 2d 259, 262-63 (D.D.C. 2008) (Urbina, J.). As the Supreme Court has explained: The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid. International Longshoremen's Ass'n v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 76 (1967) (discussing Fed. R. Civ. P. 65(d) regarding injunctions); see also Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 544 (3d Cir.1985) ("a longstanding salutary rule in contempt cases [is] that ambiguities and omissions in orders redound to the benefit of the person charged with the contempt"). Civil contempt is a remedial device used to achieve compliance with an order of the court that is being violated, see SEC v. Showalter, 227 F. Supp. 2d 110, 120-21 (D.D.C. 2002) (Urbina, J.), and contempt sanctions can be avoided by prompt compliance with the order, see Petties v. -10- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 11 of 16 District of Columbia, 888 F. Supp. 165, 169 (D.D.C. 1995) (Friedman, J.). Further, the party alleged to be in contempt may assert the defense of "good faith substantial compliance."3 See Cobell v. Babbitt, 37 F. Supp. 2d 6, 9-10 (D.D.C. 1999) (Lamberth, J.). II. THE GOVERNMENT HAS NOT SOUGHT TO CONCEAL BUT HAS CONSISTENTLY DISCLOSED KNOWN CREDIBILITY ISSUES CONCERNING THE DETAINEE-WITNESS. This case does not present a situation in which the Government has suppressed information concerning the credibility of a witness from Petitioner's counsel. To the contrary, as information has been developed over time, the Government has been forthcoming about the potential problems concerning the credibility of the detainee-witness.4 As the Henry declaration "By contrast, criminal contempt is used to punish, that is, to `vindicate the authority of the court' following a transgression rather than to compel future compliance or to aid the plaintiff." Cobell v. Norton, 334 F.3d 1128, 1145 (D.C. Cir. 2003). "Criminal contempt is a crime in the ordinary sense," Int'l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 826 (1994), requiring proof beyond a reasonable doubt of a wrongful intent, that is to say, of "a wilful disregard or disobedience of a public authority." In re Farquhar, 492 F.2d 561, 564 (D.C. Cir. 1973); In re Brown, 454 F.2d 999, 1006-07 (D.C. Cir. 1971). Under Fed. R. Crim. P. 42(b) a court may summarily convict a person for contempt committed "in its presence," if the judge certifies that he or she "saw or heard the contemptuous conduct." See In re Ellenbogen, 72 F.3d 153, 155 (D.C. Cir. 1995). Apart, however, from this narrowly limited category of misconduct, contempt prosecutions for conduct occurring outside the courtroom "command the trappings of normal adversary procedure." United States v. Griffin, 84 F.3d 820, 829 (7th Cir. 1996); Ellenbogen, 72 F.3d at 155-56. These include prosecution of the alleged contempt by the United States Attorney's Office, or the appointment of private counsel (other than counsel for an opposing party) to conduct the contempt hearing. United States v. Neal, 101 F.3d 993, 996-99 (4th Cir. 1996); see Waste Conversion, Inc. v. Rollins Environmental Serv. (NJ), Inc., 893 F.2d 605, 607 (3d Cir. 1990). Accordingly, in a case of an out-of-court contempt, Rule 42(a) requires a court to "request that the contempt be prosecuted by an attorney for the government." If the government declines the request, or the interests of justice otherwise dictate the use of private counsel, the court "must appoint another attorney to prosecute the contempt." Respondent does not concede in this case or any other that the detainee-witness is not credible or cannot be relied upon. To the extent petitioners in this or any other case challenge the credibility of the witness, Respondent is prepared to submit a rebuttal case in support of the detainee-witness' credibility. -114 3 Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 12 of 16 explains, the Government has engaged in robust efforts to produce exculpatory information, including information that would potentially undermine the credibility of Government witnesses. To that end, the Government has provided counsel in this case, as well as counsel in the other pertinent cases, a package of information bearing on the reliability of the detainee-witness, as described above and in Mr. Henry's declaration. In light of this disclosure, the Government cannot be accused of attempting to "hide the ball" or to suppress information in order to avoid scrutiny of the credibility of the detainee-witness by opposing counsel or the Court. Indeed, as compared to the information in the medical record at issue here, the disclosure of information in the credibility package was broader and more explicit with respect to credibility of the detainee witness. The medical record provided information from July 2008 that does not, on its face, make any statement about the credibility or reliability of the detainee-witness. By contrast, the document that Respondent produced willingly to Petitioners' counsel in this case expressly addresses that issue.5 As noted in the Henry declaration, however, when the package bringing this credibility issue to light was first assembled and distributed to counsel in the Guantanamo Bay habeas cases in mid-February 2009, Government counsel did not think to check the medical file of the detainee-witness for further information regarding his medical condition pursuant to the broader terms of the Court's September 22, 2008 Order. As reflected in Respondent's prior credibility Indeed, following the production of the credibility package for the detainee-witness, petitioners' counsel in several cases, apparently alerted by Respondent's production, sought discovery or moved to compel the production of the detainee-witness' medical records. Although Respondent has opposed production of these records on a variety of grounds, it has not sought to deny or conceal the existence of these records. Henry Decl., 10. -12- 5 Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 13 of 16 disclosures, this oversight was inadvertent and was not an effort to conceal information that had come to Government counsel's attention about the detainee-witness' reliability. Although this oversight is regrettable, even in the domestic criminal context, where full Due Process rights apply, courts have held that the government can satisfy its exculpatory obligations under Brady v. Maryland by disclosure of general information concerning the mental health of a witness instead of the witness' full medical file.6 See United States v. Moore, 2007 WL 1991060 (6th Cir. 2007) (no Brady violation for failure to produce witness' medical records where the government had disclosed before trial that the witness"was receiving mental health counseling"); United States v. Bender, 304 F.3d 161, 164-65 (1st Cir. 2002) (no Brady violation for non-disclosure of witness' medical records where defense counsel was notified prior to trial that witness had "mental health history"); Drew v. United States, 46 F.3d 823, 827-28 (8th Cir. 1995) (failure to disclose witness' medical records containing a diagnosis of "personality disorder" was not a Brady violation where the diagnosis' bearing on the witness' credibility was "not immediately apparent"). Here, Respondent disclosed the "essential fact[]," see, e.g., United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978); see also United States v. Johnson, 2007 WL 666566 at *9 n.5 (D.D.C. Feb. 27, 2007), of the credibility issues pertaining to the detainee- This Court has expressly concluded that Brady is not the standard in other Guantanamo habeas cases. In Al-Habashi v. Gates, 05-CV-765 (EGS), the Court required production of exculpatory information in accordance with the Court of Appeals decision in Parhat v. Gates, 532 F.3d 834, 841 (D.C. Cir. 2008), not Brady. See Al-Habashi v. Gates, 05-CV-765 (EGS) (dkt. no. 112). Further, in Hamdi, the Supreme Court expressly rejected the imposition of a "process [that] would approach the process that accompanies a criminal trial" including "quite extensive discovery of various military affairs." Hamdi v. Rumsfeld, 542 U.S. 507, 528 (2004) (plurality); see id. at 53133. In turn, Boumediene rejected the notion that "[h]abeas corpus proceedings need . . . resemble a criminal trial, even when the detention is by executive order." Boumdediene v. Bush, 128 S. Ct. 2229, 2269 (2008). -13- 6 Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 14 of 16 witness relied upon in this case. That disclosure was more than sufficient, even under a Brady standard, to notify Petitioner's counsel not only about the fact that the detainee-witness has a potential credibility problem, but also about the specific factual basis for that problem. In sum, the Government did not attempt to hide the issue of the detainee-witness' credibility from the Court or Petitioner's counsel, but forthrightly disclosed the issue. The failure to review and produce the detainee-witness' medical records earlier was a regrettable oversight, but one that in retrospect was likely attributable to the myriad issues and complexities of this truly unprecedented and sweeping litigation. At all events, however, the Government has attempted to comply in good faith with the orders of this Court and stands ready to produce the detainee-witness' medical file if requested by the Court. III. CIVIL CONTEMPT IS UNNECESSARY TO COMPEL COMPLIANCE WITH THE COURT'S ORDER ON EXCULPATORY EVIDENCE. As noted above, the purpose of civil contempt is ordinarily "to compel compliance with an order of the court." Cobell, 334 F.3d at 1145. Civil contempt does not lie under the facts of this case, however, because there is not at this time an outstanding Court order with which to compel the government to comply. As set forth in the Henry declaration, following the Court's Order at the March 19 pretrial conference to produce "all other psychiatric and medical information bearing on the [the detainee-witness'] reliability," March 19 Tr. at 5, the Government immediately undertook efforts compile the detainee-witness' complete collection of medical records at the Guantanamo Bay detention facility. Henry Decl., 19. The Government was in the process of collecting those records, as well as the other discovery required by the Court March 19 Order, when the parties -14- Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 15 of 16 initiated discussions concerning an alternative resolution to this case, as suggested by the Court during the pre-trial conference. March 19 Tr. at 18. Those discussions culminated on March 27, 2009 when the parties reached an agreement to stay the merits resolution of this case and all outstanding discovery in light of the decision by the Executive Order Review Task Force approving Petitioner for transfer from Guantanamo Bay. See Joint Motion To Stay (dkt. no. 178). This development fundamentally changed the dynamics of the case. Respondent was in the process of preparing to produce the detainee-witness' medical file and by now would have already produced the records to Petitioner's counsel were it not for the agreement to stay proceedings and all discovery obligations. Respondent still stands ready, moreover, to promptly produce the detainee-witness' medical records if directed by the Court. Under these circumstances, "the rationale for civil contempt," to secure compliance with the Court's directive to produce exculpatory evidence pertaining to the detainee-witness' mental condition, has "vanish[ed]." Shillitani v. United States, 384 U.S. 364, 371-72 (1966); see also Yates v. United States, 355 U.S. 66, 72 (1957).7 While "[c]ivil contempt is ordinarily used to compel compliance with an order of the court . . . in some circumstances a civil contempt sanction may be designed to `compensate[ ] the complainant for losses sustained.'" Cobell, 334 F.3d at 1145, quoting Bagwell, 512 U.S. at 82829 (internal quotation marks omitted); see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). In this case however, Petitioner has not suggested that he suffered any loss or damages as a result of the government's failure to produce the medical record, or to make other records from the detainee-witness' medical file available, at an earlier time. Hence, civil contempt cannot be justified here as a compensatory sanction. See Washington Metropolitan Area Transit Authority v. Amalgamated Transit Union, 531 F.2d 617, 622 (D.C. Cir. 1976) ("[a] fine imposed by the court in the absence of a motion by the party in interest would transmute the proceeding into a punitive one for criminal contempt without the notice or procedural safeguards that a valid prosecution for criminal contempt requires. The effective waiver of the complainant's interest removes the legal basis for imposition of civil contempt"). -15- 7 Case 1:05-cv-00409-EGS Document 183 Filed 04/03/2009 Page 16 of 16 CONCLUSION For the foregoing reasons, the Government and its counsel should not be held in contempt. Dated: April 3, 2009 Respectfully submitted, MICHAEL F. HERTZ Acting Assistant Attorney General JOSEPH H. HUNT Director /s/ James J. Gilligan JAMES J. GILLIGAN (DC Bar No. 422152) Assistant Branch Director ANDREW I. WARDEN (IN Bar No. 23849-49) PAUL E. AHERN Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 Tel: (202) 514-4107 Attorneys for Respondents -16-

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