The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow the judge’s orders and sentenced him to 21 days confinement and to pay a $1,000 fine.
Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the case, and ordered them to appear before him in person at Guantánamo or by video feed next week.
At issue was Baker’s authority to excuse civilian, Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case because of a secret ethics conflict involving attorney-client privilege. Also, the general refused a day earlier to either testify in front of Spath, or return the three lawyers to the case.
In court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.
“There are things I want to say, and you are not allowing me to say them,” Baker told the judge.
Spath replied, “This is not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”
Spath said Baker, the Chief Defense Counsel for military commissions, was out of line in invoking a privilege in refusing to testify about the absence of the three attorneys at the court, and his decision to release them. Spath ordered the three to come to Guantánamo this week; they refused.
Privilege, the Air Force judge declared, is a judge’s domain and that a judge has the authority to weigh and review privilege.
Without that, Spath said, there would be “havoc in any system of justice.”
The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review his contempt finding and sentence. In the meantime, he ordered court bailiffs to arrange for the general to be confined to his quarters — a room in a trailer at Camp Justice, behind the courtroom — until Rishikof acted or found a different place.
Rishikof had approved the site provisionally, Spath said, and was permitting Baker to have internet and phone communications at his quarters.
Wednesday’s was the first contempt conviction, fact the first ever contempt proceeding, in the post 9/11 military commissions
Defense Department spokesman Maj. Ben Sakrisson said Rishikof “will determine whether to affirm, defer, suspend or disapprove the sentence in the next few days.”
Baker, one of the highest ranking lawyers in the Marine Corps, is a 28-year career officer who got his law degree from the University of Pittsburgh in 1997. Baker applied for the job two years ago, which came with a promotion, as a colonel at the Marine Corps Military Justice and Community Development unit. He has served as both a defense attorney and prosecutor on traditional military court-martial cases.
And he has emerged as an outspoken critic of the hybrid military-federal justice system set up by President George W. Bush after the Sept. 11, 2001 attacks and subsequently reformed by President Barack Obama.
“Put simply, the military commissions in their current state are a farce,” Baker said in a talk last year in a national security program. “Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.”
Earlier in the day, a defense lawyer asked a federal judge to halt this week’s USS Cole case hearings because Kammen’s resignation left the alleged mastermind of the bombing plot, Abd al Rahim al Nashiri, without a death-penalty defense attorney in his capital case.
Nashiri, 52, is accused of plotting al-Qaida’s Oct. 12, 2000 bombing of the U.S. Navy warship off Yemen in which 17 U.S. sailors died. Dozens more were injured.
The brief filed in U.S. District Court in Washington, D.C., argued that Nashiri “will suffer irreparable harm if relief is denied. His capital case will proceed without the assistance of qualified counsel as required by law.”
Kammen, Eliades and Spears resigned last month in protest over, they said, a secret roadblock to ethical representation involving an intrusion of attorney-client privacy at the terror prison.
Baker found “good cause” for their leaving the case and excused them. Tuesday, Spath ordered Baker to withdraw his opinion. Spath said only the trial judge has the authority to excuse a counsel of record in a war court case. Baker disagreed, and refused.
Spath said in court Wednesday that he intended to proceed with pretrial hearings Friday, notably witness testimony. He ordered the only defense attorney with a continuing relationship with Nashiri, Navy Lt. Alaric Piette, to participate. The Navy lieutenant declined, arguing the case cannot go forward without a death-penalty defender, called learned counsel.
The law governing military commissions says a defendant is required to have a capital defense attorney. Spath ruled from the bench Tuesday that “learned counsel are not practicable in the near term, if ever, by the actions of General Baker.”
Nashiri’s Pentagon-paid appellate attorney, Michel Paradis, filed the petition asking to halt the proceedings with U.S. District Court Judge Royce Lamberth, who is judge of record in Nashiri’s mostly dormant habeas corpus petition. Lamberth’s courthouse also is the judicial branch’s keeper of a copy of the so-called Senate Torture Report that investigated the CIA’s post- 9/11 secret prison network.
Paradis argued that postponing this month’s pretrial hearings will cause “minimal disruption.”
“No evidence is imminently likely to disappear or degrade in value. Indeed, this case has already entered its ninth year of pretrial proceedings and [Nashiri] has been in U.S. custody, without any meaningful judicial review, for 15 years,” he wrote.
Nashiri was captured in 2002 and disappeared into the CIA’s network of secret prisons known as the Black Sites until his September 2006 transfer to this Navy base in southeast Cuba. He was arraigned in 2011.
As in any U.S. State, Federal, or Military Court, the judge has the obligation and power to enforce decorum in the courtroom. Rule for Military Commission 801 outlines this responsibility. “The military judge is responsible for ensuring that military commission proceedings are conducted in a fair and orderly manner, without unnecessary delay or waste of time or resources.” The Military Commissions Act of 2009, Section 949t specifically defines contempt as a criminal violation punishable by military commission. Rule 809 provides the basis for adjudication of contempt in military commissions and provides a maximum sentence of no more than a $1,000 fine and 30 days in confinement, or both.
Under that Rule, the Convening Authority designates the place of confinement. The Military Judge today ordered General Baker to be confined to his quarters at Guantanamo Bay, Cuba. The Convening Authority will determine whether to affirm, defer, suspend or disapprove the sentence in the next few days.
Air Force Maj. Ben Sakrisson, Pentagon spokesman