A military judge has recused himself from ruling on a request to release audio recordings from the Guantánamo war court to a federal court deciding whether to clear a Marine general of contempt charges, the Miami Herald has learned.
Instead, Air Force Col. Vance Spath is asking the chief of the war court judiciary, Army Col. James L. Pohl, to decide the question. Prosecutors believe the recordings may have picked up Marine Brig. Gen. John Baker laughing and scoffing “in a contemptuous manner” during Oct. 31 and Nov. 1 proceedings in the USS Cole case at Guantánamo. Baker is chief defense counsel for military commissions.
That week, Spath found Baker guilty of contempt of the war court and sentenced the general to 21 days of confinement in his quarters for refusing a direct order to reverse his decision to release three civilian defense attorneys who quit over an ethical conflict.
Now, lawyers for Baker are asking a federal judge, Royce Lamberth, to overturn Baker’s contempt conviction on the grounds that Spath did not have contempt authority in that instance, and that he also denied the general due process.
USS Cole case prosecutors Miller wrote in a Jan. 9 filing that Department of Justice attorneys want the recordings in their bid to uphold Spath’s conviction of Baker. They ask that the recordings be made available to the judge, but not the public.
The prosecution filing provided the first official confirmation that court stenographers create and maintain audio recordings of Guantánamo war court proceedings. A Pentagon spokeswoman, Navy Cmdr. Sarah Higgins, said the military judges in the various war court cases have “approximately 730 hours of recordings.” All of it is classified, she said.
In addition to being the chief of the war court judiciary, Pohl is presiding in pretrial hearings in the complex conspiracy case against five men accused of plotting the Sept. 11 terror attacks. Pohl originally handled the USS Cole case but assigned it to Spath in July 2014.