Chief defense counsel released from contempt sentence in USS Cole case

MIAMI HERALD/McCLATCHY EXCLUSIVE Marine Brig. Gen. John Baker, moments after leaving his trailer, where he was confined for contempt of court, on his way back to work on Nov. 3, 2017.
MIAMI HERALD/McCLATCHY EXCLUSIVE Marine Brig. Gen. John Baker, moments after leaving his trailer, where he was confined for contempt of court, on his way back to work on Nov. 3, 2017.

A senior Pentagon official on Friday ordered the release of a Marine general confined to his trailer park quarters at Guantanamo’s Camp Justice for refusing to obey a military judge’s order.

Brig. Gen. John Baker was serving a 21-day sentence that began Wednesday after the military judge in the USS Cole case found Baker in contempt of court in a showdown over who has the authority to release attorneys of record. The 50-year-old career military officer, who is the second highest-ranking lawyer in the Marine Corps, is chief defense counsel for military commissions.

The release was ordered just before a hearing in Washington, D.C. on a habeas corpus unlawful detention petition filed by a group of criminal defense lawyers. However, the sentence could be re-imposed later, and Baker’s contempt conviction was not vacated.

U.S. District Court Judge Royce Lamberth declined to rule further on Baker’s case during the hearing Friday, saying the military official in charge of the war court made a “wise decision” by releasing Baker. But he implied that if the military didn’t take further action in a “reasonable” amount of time, he might further review the case later.

“I’m not going to stand down. I’m simply going to give the military time to clean up its own act,” Lamberth said. “And its first step was a good one.”

Michel Paradis, a civilian appellate lawyer who works for Baker, said that while Baker’s release was a positive step, the deferred sentence was still problematic. Paradis said under his understanding of the law, the military authority that ordered Baker freed does not have the power to overturn his conviction.

“At any time, the convening authority can re-impose the sentence on him,” Paradis said — even a decade from now. As he goes about his duties as chief defense counsel, the possibility of having to go back into detention will be “a sword over his head.”

Baker had 18 days left on his sentence and was told Friday he was free to go immediately, according to Justice Department attorney Terry Henry.

Baker has refused an order by the USS Cole case judge, Air Force Col. Vance Spath, to rescind his decision to release three civilian defense lawyers from the case. At issue is whether he or Spath actually has the power to let war court lawyers of record go. Spath says that’s the role of a judge. Baker says in the case of military commissions, the tribunal system set up after the Sept. 11 attacks, it is solely his domain.

The three defense lawyers — Rick Kammen, Rosa Eliades and Mary Spears — asked to be taken off the case of Abd al Rahim al Nashiri, who is accused of plotting the al Qaeda suicide bombing of the warship off Aden, Yemen, in October 2000. Seventeen U.S. sailors died in the attack, and Nashiri could face execution if he’s convicted. The lawyers cited classified ethical reasons for wanting to be taken off the case, but without their participation Nashiri does not have an attorney trained in capital defense on his team.

Nashiri’s pretrial hearings continued Friday, despite the absence of the three lawyers. His lone remaining attorney, Navy Lt. Alaric Piette, refused to question some witnesses that were called to be there by the defense, saying he had done no cross-examinations in a capital case before.

Kate Irby: 202-383-6071, @kateirby