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 capital terror case. The lawyers resigned last month over a covert breach of attorney-client privilege involving something so secretive at the terror prison that the public cannot know.
Wednesday evening, with Baker confined to his quarters in a trailer park behind the courthouse, Judge Spath issued another order: Directing the three lawyers — Rick Kammen, Rosa Eliades and Mary Spears — to litigate Friday in the death-penalty case against Abd al Rahim al Nashiri remotely from the Washington D.C., area by video feed to Guantánamo.
Baker is the chief defense counsel for military commissions, and the second highest-ranking lawyer in the Marine Corps. He had excused Kammen, Eliades and Spears from the case on ethical grounds, and refused to rescind the order —prompting the judge to find him in contempt of court. Baker also invoked a privilege stemming from his oversight role and refused Spath’s order to swear an oath and testify in his court.
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The judge’s dizzying pace of events— sentencing the Marine general in a 35-minute hearing, then ordering three civilian lawyers to defend the Saudi in his capital case by video link — came as the colonel sought to force the civilian, Pentagon-paid attorneys back on the case.
Spath, who has declared they had no good cause to quit, had ordered Kammen, Eliades and Spears to come to Guantánamo on Sunday with other war court staff for a pretrial hearing. They refused. Kammen, a veteran capital defense attorney who had represented Nashiri for a decade, said Spath’s order to travel was an “illegal” effort to have three U.S. citizens “provide unethical legal services to keep the façade of justice that is the military commissions running.”
Nashiri is accused of orchestrating al Qaida’s Oct. 12, 2000 suicide bombing of the U.S. warship off Yemen. Seventeen sailors died, and dozens more were injured. He has been in U.S. custody for 15 years, and was arraigned in 2011.
No trial date has been set in part because the sides were still haggling over what Top Secret evidence the defense can see as it prepares for trial. Also, Nashiri needs to have a court-ordered MRI to see if he suffered brain damage during his four years in secret CIA custody. He was waterboarded, kept in a coffin-sized box and subjected to other cruel treatment detailed in the Senate’s “Torture Report.”
In his latest order, Spath threatened the three civilian lawyers with a contempt of court finding too.
He told them to appear at 8 a.m. Friday at Military Commissions headquarters in Alexandria, Virginia. The Pentagon would provide a link with the Top Secret courthouse in Cuba on Friday for a hearing — expected to take testimony from an unnamed witness — and would also set up “secure terminal equipment” for the accused terrorist, Nashiri, if they wanted to consult, the order said.
Spath issued the order to the three civilians more than six hours after he sentenced the general to 21 days confinement in his quarters, which happen to be in a trailer behind the war court compound called Camp Justice. On Thursday, a federal judge holds a hearing on whether to halt the war court hearings because Nashiri lacks a learned counsel.
In Spath’s 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’s things that I want to say, and you are telling me that I cannot say them,” Baker said.
Spath replied, “This is really not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”
Spath said Baker was out of line in invoking a privilege. Privilege, the Air Force judge declared, is a judge’s domain and a judge has the authority to weigh and review privilege.
Without that, Spath said, there would be “havoc in every system of justice.”
He added that, if left unchecked, a chief defense counsel would have the power to essentially dismiss a war court case.
The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review Baker’s sentence. Defense Department spokesman Maj. Ben Sakrisson said Rishikof “will determine whether to affirm, defer, suspend or disapprove the sentence in the next few days.”
Wednesday’s was the first contempt conviction in the post- 9/11 military commissions. In fact, no other war court judge has held a contempt proceeding.
Baker, the second-highest ranking lawyer 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.”
In Washington D.C., Wednesday, a defense lawyer who works for Baker asked a federal judge to halt this week’s USS Cole case hearings because Kammen’s resignation left Nashiri without a criminal defense attorney with capital experience.
The law governing military commissions says a defendant is required to have a capital defense attorney. Spath said Wednesday he intended to proceed with pretrial hearings with Nashiri represented at Guantánamo by a junior Navy lawyer with no death-penalty experience. He ruled from the bench a day earlier that “learned counsel are not practicable in the near term, if ever, by the actions of General Baker.”
U.S. District Court Judge Royce Lamberth scheduled a hearing at the federal court on 333 Constitution Ave., in Washington, D.C., for 9:30 a.m. Thursday, when no session is scheduled for the war court at Guantánamo.
Lamberth is the judge of record in Nashiri’s mostly dormant habeas corpus petition. His 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.
The federal court petition argued for delay. “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.”
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.
Brig. Gen. Baker was escorted from the Expeditionary Legal Complex this afternoon by Naval Station Masters at Arms to serve the ordered confinement in his quarters at Naval Station Guantanamo Bay. He wore his duty uniform. Once General Baker returns to his quarters he will report telephonically every 2 hours (other than 8 hours for sleep) to verify that he has remained in quarters. There will not be a guard posted outside General Baker's quarters as it is expected that as a senior officer he will comply with the conditions of confinement.
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