Federal court overturns Marine general’s Guantánamo war court contempt conviction

Brig. Gen. John Baker, moments after leaving his trailer, where he was confined for contempt of court, on Nov. 3, 2017.
Brig. Gen. John Baker, moments after leaving his trailer, where he was confined for contempt of court, on Nov. 3, 2017.

A federal judge on Monday overturned the contempt conviction of the Marine general in charge of Guantánamo's war court defense teams, ruling that the military judge overstepped his role.

U.S. District Court Judge Royce Lamberth issued the decision Monday, clearing the chief defense counsel for military commissions, Marine Brig. Gen. John Baker, of his Nov. 1 conviction.

Air Force Col. Vance Spath, serving as judge in the USS Cole case, summarily convicted Baker and sentenced the Marine to 21 nights' confinement in his trailer-park quarters for disobeying Spath’s order. Baker had released three civilian defense attorneys from serving on the terror case after they discovered a microphone hidden in their attorney-client meeting room last summer. Spath ordered Baker to reinstate the attorneys, and the general refused.

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The clash over whether national security trumps the attorney-client privilege has for the most part brought to a standstill the death-penalty trial of Abd al Rahim al Nashiri, a Saudi captive at Guantánamo who is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the USS Cole in Yemen. Seventeen American sailors died in the attack, and dozens more were wounded.

Spath lacked the authority to convict and sentence the general, Lamberth wrote in his 27-page decision. That role belongs to the members of a military commission, the U.S. military officers who will ultimately sit as jurors in the USS Cole case. No jury has been empaneled.

Air Force Col. Vance Spath, the judge in Guantánamo's currently abated USS Cole trial. Department of Defense

The Cole case is still in pretrial proceedings. Commission cases do not “authorize unilateral findings of guilt and sentencing by the military judge without the input of members,” Lamberth wrote. “Such an interpretation would undermine the entire military commission system and essentially authorize bench trials for all the crimes” covered by military commission.

“Judge Spath acted unlawfully when he unilaterally convicted General Baker of criminal contempt and sentenced him for that contempt. He usurped a power that belongs solely to the members of the commission, voting as a body.”

In February, Spath froze the pretrial proceedings and walked off the bench over his inability to force Nashiri’s civilian defense team back on the case. 

Attorneys Richard Kammen, Rosa Eliades and Mary Spears quit in October, with Baker’s permission, declaring an ethical conflict over Spath’s refusal to let them investigate the microphone and other suspicions that the attorney-client privilege was breached at Guantánamo. Spath said he was awaiting rulings from superior courts on his authority to force the case to trial, including his contempt authority.

The Pentagon’s war court review panel, the U.S. Court of Military Commissions Review, is handling other issues related to the judge’s authority at the war court.

Carol Rosenberg: 305-376-3179, @carolrosenberg