Guantánamo

Pentagon prosecutor says war court has audio of Marine general scoffing, laughing

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.
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. crosenberg@miamiherald.com

Pentagon prosecutors are describing a Marine general found in contempt of the war court as scoffing and laughing as he defied a judge’s order, and want to send an audio recording of some Guantánamo proceedings to a federal judge to prove it.

The filing marks the first government acknowledgment that court stenographers create and maintain audio recordings of Guantánamo’s war court proceedings. A Pentagon spokeswoman, Navy Cmdr. Sarah Higgins, said Tuesday that the military judges in the various war court cases have “approximately 730 hours of recordings.” All of it is classified, she said.

In a Jan. 9 filing, Pentagon prosecutor Mark Miller asks the USS Cole case judge, Air Force Col. Vance Spath, to approve release of audio recordings of the case’s war court proceedings from Oct. 31 and Nov. 1. That week, Spath found Marine Gen. John Baker in contempt of the war court — and sentenced him to 21 days confinement in his quarters, a trailer behind the courthouse.

RELATED: Judge confines Marine general to quarters for 21 days for disobeying orders

Lawyers for the general are asking U.S. District Judge Royce Lamberth to overturn Baker’s contempt conviction. Baker’s attorney on Tuesday disputed the prosecution characterization. “At no time was General Baker disrespectful to the military court, much less did he engage in any conduct that meets the definition of contempt in a Guantánamo military commission,” attorney Barry Pollack said by email.

Prosecutor Miller disagrees. “In those collateral proceedings, Brigadier General Baker has characterized his defiant conduct before the Commission as ‘respectful’ and ‘exceedingly courteous,’ ” Miller writes in an eight-page Jan. 9 war court filing obtained by the Miami Herald. “During the course of Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and audibly laughed in a contemptuous manner.”

Miller’s filing said an unofficial transcript of the hearings does not reflect Baker’s “verbal and non-verbal conduct.”

Biography_Spath
Air Force Col. Vance Spath

Spath sentenced Baker to 21 days confinement and a $1,000 fine. The Pentagon official overseeing the war court, Harvey Rishikof, suspended the sentence in its third day, as Lamberth was about to rule on its legitimacy, and struck down the fine. Rishikof, however, upheld the conviction.

Spath has scheduled a five-day hearing in the case to begin Jan. 18, and included a rare Saturday session. It is not known when Lamberth will hold his next hearing on whether to strike down the Marine general’s contempt conviction.

Higgins did not provide a time span of the 730 hours of recordings. The Pentagon has been staging military commissions since the Bush administration’s first, in the summer of 2004.

Jay Connell, a defense attorney in the Sept. 11 case, said on Tuesday that he became aware of the court’s use of a multichannel, court reporting recording software called For the Record in February 2013 during litigation over courtroom microphones.

At the time, defense lawyers were questioning whether attorney-client conversations were being overheard, and if so by what government agencies.

The Pentagon’s Higgins said the recordings are “in accordance with standard practice and military commissions procedures.” She added that “the audio recording system is capable of picking up ambient sound, but doesn't always do so.”

From those recordings, Connell said, stenographers prepare an official transcript, which is different than the unofficial transcripts that are posted on the war court website.

RELATED: Read the USS Cole case prosecution filing

Editors note: An earlier version of this story said the prosecution motion was dated Jan. 8. It is dated Jan. 9.

Carol Rosenberg: 305-376-3179, @carolrosenberg

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