Lawyers for a Marine general who was found guilty of contempt of the war court and confined to his trailer park quarters are asking a federal judge to cancel the conviction.
On Nov. 1, the military judge in the USS Cole case sentenced Marine Brig. Gen. John Baker to 21 days of confinement for disobeying orders. Baker, the chief defense counsel for military commissions, invoked a privilege and refused to testify before the judge, Air Force Col. Vance Spath. He also refused to rescind a decision permitting some civilian attorneys to quit the case.
Baker served just two days of the sentence and didn’t pay the $1,000 fine. Although a senior Pentagon official, Harvey Rishikof, upheld the contempt finding, he suspended the sentence.
In their 33-page filing at U.S. District Court at Washington, D.C., Baker’s lawyers argue that the contempt conviction could earn Baker a bad performance review, which could lead to a cascading series of career-damaging or career-ending consequences: demotion, loss of his position as the attorney in charge of defense military commissions defense teams, and retirement as a colonel, not a general.
Baker is represented by civilian volunteers from the National Association of Criminal Defense Lawyers, who originally went to federal court to free Baker while he was confined to his quarters, a trailer park in the crude war court compound called Camp Justice. They argued that Spath denied Baker due process by holding summary rather than contested contempt proceedings. The colonel forbade the general from speaking.
U.S. District Court Judge Royce Lamberth was poised to rule on the lawfulness of the general’s detention after 48 hours. But Rishikof, whose title is Convening Authority for military commissions, suspended it for review.
Rishikof later concluded that the judge was right to find the general in contempt but that more confinement “would have no significant deterrent or rehabilitative effect.” Instead he referred the conviction to several military entities in Baker’s Pentagon to handle as a professional discipline matter.
The judge found the general guilty of “contempt without ever allowing him to be heard,” the lawyers write in their filing with Lamberth. “That striking departure from American judicial norms is starker still when it came in the context of a military commission and when it resulted in the deprivation of liberty of a United States citizen.”
Baker’s lawyers said they were going to federal, civilian court because the war court system gives him no possibility of appeal within the military. If Lamberth doesn’t vacate the conviction, they argue, disciplinary actions that could follow “could result in his removal from his current position, demotion in grade, diminution in pay, or even forced retirement and reciprocal disciplinary action by civilian bar licensing authorities.”
The lawyers also argued that Rishikof was wrong in upholding the conviction because the military commissions don’t grant Spath the authority to find the general in contempt. They also argue that what Baker did does not constitute contempt.
The lawyers filed the motion with Lamberth on Friday. Justice Department lawyers have yet to respond.