A federal appeals court in Washington was prepared to hear a Guantanamo Bay detainee case in open court today, though the lawyers involved in the dispute were prohibited from talking about the confidential record.
A minute into the argument, Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit had heard enough and abruptly closed the courtroom to the public. That meant about a dozen people in the courtroom were barred from sitting in court to hear oral argument.
Sentelle said from the bench that an accidental disclosure of confidential information in an open courtroom presented “too much danger.” Another panel member, Senior Judge Laurence Silberman, noted that it was going to be tough ask questions of the lawyers. The third member of the panel, Judge Merrick Garland, whose name is reportedly on a short list as a possible Supreme Court pick, did not express a view from the bench.
The abrupt closure of the courtroom was unusual since the lawyers for the opposing sides—Orrick, Herrington & Sutcliffe partner John Ewald for the detainee and, for the government, Justice Department attorney August Flentje of the Civil Division appellate staff—had agreed to argue the case in public, according to court papers filed last month.
Ewald and Flentje suggested in a joint filing March 25 in the D.C. Circuit that the court could hold a brief, closed-door session in the event the panel members wanted to explore the confidential record in the case. The D.C. Circuit has done just this in other cases—hearing part of the case in public and part of it behind closed doors. In some instances, the entire argument is heard in a closed courtroom.
Ewald was barely into his presentation today when Sentelle interrupted him. Ewald had noted one of the government’s main contentions—that the detainee, Adham Awad, a native of Yemen, knew Al Qaeda fighters who had taken over a hospital in Afghanistan. That information appears in the public, redacted versions of the briefs in Awad’s case.
Awad is appealing Senior Judge James Robertson’s denial of a petition for habeas corpus. Robertson found Awad was being lawfully detained at Guantanamo under the Authorization for Use of Military Force that granted war powers to the president in the days after the Sept. 11 attacks.
Awad was detained during a siege on the hospital that was led by the United States and affiliated forces. The siege ended in January 2002. Awad’s lawyers at Orrick said in court papers that there is nothing incriminatory about Awad’s presence in a civilian hospital.
Ewald said in court papers that the Justice Department has failed to identify “substantial evidence” that Award was a part of al-Qaeda’s command structure. “The government did not present any evidence, and the district court did not find, that Awad committed a single act—much less a violent act—on al-Qaida's behalf,” Ewald wrote.
Justice lawyers said in court papers that Awad told interrogators he traveled to Afghanistan after the Sept. 11 attacks to receive military training and to join the fight.