Pentagon upholds Marine general’s contempt conviction in USS Cole legal dispute

Harvey Rishikof moderating a Sept. 16, 2014, Debate on War and the Constitution between attorneys John Yoo and Bruce Fein.
Harvey Rishikof moderating a Sept. 16, 2014, Debate on War and the Constitution between attorneys John Yoo and Bruce Fein. CSPAN

The senior Pentagon official in charge of the war court has upheld a judge’s contempt conviction of the Marine general overseeing defense teams, according to a copy of the decision, which suggests three civilian defense attorneys are still bound to litigate in Guantánamo’s USS Cole case.

The official, Harvey Rishikof, also said he is advocating the creation of new “clean” attorney-client meeting spaces, with periodic independent monitoring to assure the alleged terrorists and their attorneys that their conversation is not being monitored. The issue is at the core of the attorneys’ refusal to participate in the case.

While upholding the contempt conviction, Rishikof decided that Marine Brig. Gen. John Baker need not serve the remainder of a 21-day sentence of confinement or pay a $1,000 fine. USS Cole case judge Air Force Col. Vance Spath sentenced Baker to both on Nov. 2 for invoking a privilege and refusing to answer the judge’s questions at the war court.

BGen Baker
Marine Brig. Gen. John Baker

Instead, Rishikof, whose title is convening authority of military commissions, will forward the conviction to Baker’s chain of command as an administrative and ethics matter.

“I find that imposition of the remainder of the sentence of confinement would have no significant deterrent or rehabilitative effect,” Rishikof wrote Baker, according to a copy of his decision obtained by the Miami Herald on Wednesday.

RELATED: Gitmo judge sends Marine general lawyer to 21 days confinement for disobeying orders

In the short term, that could keep the issue out of federal court.

When Baker was confined to his trailer park quarters behind the Guantánamo courthouse, U.S. District Court Judge Royce Lamberth considered a habeas corpus petition brought by civilian lawyers for Baker, who called the general’s detention unlawful. After about 48 hours but before Lamberth could rule, Rishikof suspended the general’s punishment.

The general’s civilian attorney, Barry Pollack, said that Baker and his attorneys were considering whether there was a military channel “to challenge the erroneous contempt finding or whether to return to Judge Lamberth to ask him to overturn the contempt finding.

“While we are very pleased that the Convening Authority negated the remainder of the sentence of confinement and overturned the fine that had been imposed,” Pollack said by email. “We think the Convening Authority was plainly wrong in concluding that the military judge had the authority to hold General Baker in contempt in the first place. The contempt finding should be reversed.”

In his decision, Rishikof recognizes an ongoing, clandestine crisis in confidence in the ability of defense attorneys to hold confidential conversations with their clients at the prison complex — the reason why USS Cole criminal defense attorney Rick Kammen, an experienced death-penalty lawyer, and colleagues Rosa Eliades and Mary Spears asked Baker to permit them to resign in the first place. All three were paid by the Pentagon.

Air Force Col. Vance Spath

“To ensure openness and transparency continue in the future,” Rishikof wrote Baker, “I also intend to recommend to the Joint Detention Group that a ‘clean’ facility be designated or constructed which would provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring.

“This clean facility would also be checked periodically to ensure compliance with confidentiality expectations by an independent team to ensure it remains free of listening and inappropriate monitoring devices.”

RELATED: Key USS Cole defense lawyer quits the death-penalty case

In the past, lawyers have discovered listening devices in Guantánamo meeting rooms disguised as smoke detectors; a prosecutor said soldiers mistakenly overheard legal meetings, and then something — the details are classified — happened over the summer to cause Baker to caution defense teams that no meeting site at the base guarantees fundamental attorney-client confidentiality.

In specifically seeking that be done by the Joint Detention Group commander, Army Col. Steve Gabavics, Rishikof is bypassing the senior commander of the prison, Rear Adm. Edward Cashman. Gabavics answers directly to the prison commander, independent of the prison’s intelligence, legal and combat camera units.

Army Col. Steve Gabavics, the warden, told media on Dec. 10, 2016, during a visit that he would like “the story to be told how great our soldiers are here on the ground.” CAROL ROSENBERG

Four entities get to decide Baker’s fate, according to a Pentagon statement: the top-ranking lawyer in the Marine Corps, a two-star general who serves as the staff attorney to the commandant of the Marine Corps; someone at the Pentagon’s General Counsel office; the Department of Defense’s “Standards of Conduct Office,” and someone in the Department of the Navy.

A Pentagon statement signaled Rishikof’s support for Spath, who has refused to recognize the resignations of Kammen and the others, by referring to the “attempted resignation of counsel.” That suggests that, as far as the top Pentagon war court official is concerned, Kammen, Eliades and Spears are still attorneys of record on the case.

Kammen said by email Wednesday morning that “our position is that General Baker excused us. So our resignations were approved by the only official with a vote. The convening authority has no legitimate role in this decision.”

Rick Kammen, defense attorney CAROL ROSENBERG

He added that, under the rules for the war court, the role of the convening authority is not that of “a super judge until there is a conviction. He does not have a legitimate role in the conflict between Colonel Spath and General Baker over excusal authority. Indeed his attempt to insert himself into it may be unlawful influence.”

Kammen represented former CIA captive Abd al Rahim al Nashiri for nearly a decade. The Saudi is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the USS Cole warship off Aden, Yemen, that killed 17 American sailors.

Nashiri was represented in this month’s hearings — which focused in part on the death-penalty representation question — by a Navy lieutenant with no capital defense experience who had been practicing law for just five years.

RELATED: Navy SEAL who enlisted to fight terrorism is now a lawyer defending an alleged terrorist

Baker, who has recused himself from overseeing the USS Cole defense teams, is represented on the contempt matter by civilian lawyers Pollack and Addy Schmitt and Marine Col. Jonathan Hitesman, the chief defense counsel of the Marines.

Carol Rosenberg: 305-376-3179, @carolrosenberg

Full Pentagon statement

The Office of Military Commissions (OMC) Convening Authority (CA) has reviewed the contempt proceedings against Brigadier General John G. Baker, United States Marine Corps, Military Commissions Defense Organization. The CA has determined that the findings of the military judge are correct in law and fact. The CA is forwarding the findings and record of proceedings to the appropriate authority overseeing Brig. Gen. Baker’s service as a Judge Advocate within the Department of the Navy, the DoD Standards of Conduct Office, and the DoD General Counsel’s Office, and the Staff Judge Advocate to the Commandant of the United States Marine Corps for an administrative ethics review. The CA is not requiring that Brig. Gen. Baker pay the original $1,000 fine or serve the remaining confinement term, which was initially 21 days.

With regard to the underlying security concerns that led to the attempted resignation of defense counsel in the case of United States v. Al-Nashiri, the CA will also recommend to the Joint Detention Group at Guantanamo Bay that a “clean” facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds.

The CA noted that it was within the military judge’s authority to rule upon the defense counsels’ request to withdraw from the case. The presiding judge, US Air Force Colonel Judge Vance Spath, found that there was “no good cause” to withdraw after reviewing both the classified and unclassified information concerning the defense’s motion.

During the Oct. 31 proceeding, Judge Spath said, “On 20 September 2017, again after consideration of all the classified and unclassified filings. there wasn’t any basis to find there had been an intrusion into attorney-client communications between this accused and this defense team.”

The CA acknowledged that the classified nature of the proceedings have shaped the commission’s proceedings. The declassification of relevant documents concerning this matter needs to be expedited to ensure the now-classified analysis can be shared with the appropriate parties to reinforce the integrity of the process. The CA will work with the necessary declassification authorities to improve this area of concern.