Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered into confinement today by Air Force Military Judge Colonel Vance Spath, who found the General in contempt for in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

Carol Rosenberg of the Miami Herald reports here that:

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

. . .

In court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.

“There are things I want to say, and you are not allowing me to say them,” Baker told the judge.

Spath replied, “This is not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”

. . .

The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review his contempt finding and sentence. Meantime, however, he ordered court bailiffs to arrange for the general to be confined to his quarters — a room in a trailer at Camp Justice, behind the courtroom — until Rishikof acted or found a different place.

Rishikof had approved the site provisionally, Spath said, and was permitting Baker to have internet and phone communications at his quarters.

Additional details about the release of the three civilian attorneys is available in this report (also from Miani Herald reporter Carol Rosenberg).

45 Responses to “Brigadier General Baker confined to quarters for contempt”

  1. Charlie Gittins says:

    General Baker must know some pretty damning classified information that would lead him to refuse an order from a judge, even a military judge that he outranks.  Which really begs the question — what is it that the USG is doing at GITMO that would compel a level headed, competent attorney who is risking his law license and his retirement grade to refuse an order?  It must be really bad for the GOV and I think it probably is also illegal.  Why is the information surrounding the GOV conduct classified is one question that typically comes to mind.  What source or method is risked by disclosure?  Is it because the GOV wishes to avoid embarrassment?  I have found that to be the case for classification in a couple of my cases in the past.  On a macro level, these Military Commissions have been dysfunctional from the beginning.  9 years for Nashiri?  WTH?  There is no doubt that a Federal District Court would have tried this case in no longer than 2 years.     

  2. Scott says:

    COL Spath is having a good month. 

  3. Will M. Helixon says:

    Do not think that defense counsel do not think of the worst case possible scenarios when they take unpopular or contrary positions.  Imagine how much thought went into BG Baker’s decision.  This is not a mock-trial where there are law school questions.  This situation involves highly classified information pertaining to conduct of the Government to which three civilian lawyers concluded that they could not ethically continue with representation and BG Baker allowed them off the case.  Think for a moment what that could be.  Could you ethically represent someone when the Government had access to all of your files, emails, calls and conversations with your client?  What about only a few of those?  What about if the Government insured confidentiality of communications and you found out that another part of the Government unbeknownst to the lawyers was eavesdropping, either in real time or by electronic recording means.  I have no clue as to what is going on, but I do know this — I find it HIGHLY IMPROBABLE that either the three civilian lawyers or BG Baker are over-exaggerating their concerns.

  4. Isaac Kennen says:

    And now a Brigadier General joins the list of those confined without the benefit of a trial at Camp Justice.  

  5. Holy Moly says:

    I used to work on the Nashiri team (though not for some time), and all I can say is holy crap. Rick Kammen is a brilliant lawyer, has worked on the team for a decade, and would never quit without excellent reason. I cannot fathom what is going on at the Commissions right now, but like WMH above, I very much doubt that the three civilian counsel quit without excellent reason. 

  6. Former DC says:

    The second article, at the very bottom, shows what the problem is:

    The war court judge’s bench book, called the Trial Judiciary Rules of Court, says once a civilian lawyer has appeared in court, “excusal must be approved by the military judge.” But the Manual for Military Commissions, from which the rules are drawn, says the authority who appointed the lawyer gets to excuse the lawyer for good cause.

    This sure looks like a conflict of laws issue.  Seems pretty heavy-handed under the circumstances.

  7. Charlie Dunlap says:

    Colleagues, Perhaps this would bne of interest:
    Please excuse the typos!  Charlie

  8. Charlie Gittins says:

    Charlie:  This smells really bad.  Maybe there are circumstances where a DC can be monitored based on probable cause.  If that was the case, then why hasn’t the GOV said that? — we had probable cause to surveil defense counsel and received an appropriate warrant.  Instead the GOV doubled down and denied any monitoring.  Maybe the intel agencies are setting up the TCs.  I don’t really care — they have the ability to get to the bottom of the issue because they own all of the investigatory assets of the military.  These Commissions have been a joke from the jump.  Victor’s justice.  Perhaps it is just a fact that our Government is unwilling to accept a fair trial for these terrorists because they are afraid that all of the horrific things that they did to the accuseds in the “Black sites” would subject many to potential war crimes charges.  I don’t know, but if John Baker is willing to go to jail and defy a MJs order, there is something gravely wrong that needs the sunshine to disinfect it.

  9. Tami a/k/a Princess Leia says:

    Charlie Gittens,
    I think this is “monitoring because we’re the big bad government, so we can do whatever we want, and as long as we call it “terrorism,” we can go to a secret court and get secret permission to do whatever we want.”  Something with FISA.

  10. Former. says:

    From limited interactions, the USMC has far better officers and more thoughtful lawyers than Baker.  However, this order to rescind an order seems an overreach, especially given the Manual for Military Commissions, as noted by Former DC (no relation).  Obviously the judge is in a tough position if counsel walk away.

  11. Edward White says:

    As I read the Miami Herald story and Carol Rosenberg’s tweets, the Military Judge–who also has all the necessary clearances to know the underlying classified facts–has what he believes to be the infomation/facts that Defense Counsel claim justify their need to withdraw from the case, and he has determined that those facts DO NOT justify the withdrawal of counsel. Obviously, BG Baker disagrees. Since I don’t know the underlying facts (and I suppose essentially no one here does either), I can’t judge wether Judge Spath or BG Baker is right on the merits of the need-to-withdraw question. My only point on that score is that there is at least reason to wonder whether BG Baker is correct that there are adequate grounds for withdrawal here.
    So then the question is: Who gets to decide?  From a policy/incentive point of view, it’s a very bad idea, in my admittedly not unbiased view, to place the final decision on that question in the hands of the Chief Defense Counsel, who, since he has no real power over the counsel that nominally work for him in the Defense shop, must always appear to be more virtuous than Cesar’s wife if he’s to have any influence over his counsel. That dynamic has, in my view, led successive CDCs to routinely take extreme positions to prove their “virtue.” From a “what do the rules say” perspective (as opposed to policy/incentive point of view), it seems to me it is a much closer call on whether BG Baker or Judge Spath gets to decide whether or not to let the defense counsel withdraw.  My own guess is that, eventually, the appellate courts will try to reconcile the two rules and say that, after detailing but prior to entry of an appearance, a trial DC only needs the permission of the CDC to withdraw from a representation, but that after the counsel enters an appearance in a particular proceeding, the Court’s permission must also be obtained to permit a counsel to withdraw. It just makes sense to me that the Court must have control over the coming and going of counsel in a case before the court, and that approach seems, to me, to reconcile the two supposedly competing rules on withdrawal of defense counsel.
    That said, I don’t think I would have found BG Baker in contempt over his refusal to withdraw his own action releasing the defense counsel; I think I would, instead, have just said, “I think you are mistaken, and I am ruling that the counsel remain obligated to perform their defense duties unless and until I permit them to withrdaw.” In other words, BG Baker’s release is necessary but not sufficient to let trial DC off the case.  More difficult to understand is why, on the refusal to testify issue, BG Baker didn’t just take the stand, and, in response to particular questions that he thought called for privileged information, assert the privilege.  The news story suggested that such an approach might have satisfied the judge. Rosenberg reports that, at one point, Judge Spath said he had questions that didn’t call for privileged information. I got the sense he was incensed by the CDC’s blanket refusal to testify and surgically assert the privilege, which might have avoided some problems and at least put a finer point on the issues in contention.  If that is all this about, it seems like a pretty small reason to get yourself held in contempt. 

  12. NatSecLawGuy says:

    The unofficial/unauthenticated transcript of the contempt proceedings has been posted to the Military Commissions website.

  13. Cheap Seats says:

    Interesting to me is the jurisdiction question that General Baker tried to raise.  10 USC 948c would tend to support the General’s position that the tribunal cannot hold him in contempt.  On the other hand, 10 USC 950t(31) would appear that any person my be held in contempt if that person “uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.”  Did the MJ make a finding that the General created a disorder?  Why would a MJ not allow a party being found in contempt to make a record concerning that matter? The failure by the MJ to allow the member to make a record (assuming written briefing had not already occurred), seems to be an abuse of discretion.  How can an appellate court review such a crucial issue as jurisdiction without a proper record?

  14. Current . says:

    Heck of day.  I agree with Edward White in that the Military Judge knows more than we do and disagrees with the conclusions of BG Baker esp w/r/t release of counsel.  Also, true story, *some* Marine Judge Advocates are legends in their own minds.  Col Spath is no lightweight and would not make this kind of decision lightly.  Col Spath’s mantra is “read the law, follow the law.”  Not sure about BG Baker.

  15. Current . says:

    Heck of a day.  I agree with Edward White in that the Military Judge knows more than we do and disagrees with the conclusions of BG Baker esp w/r/t release of counsel.  Also, true story, *some* Marine Judge Advocates are legends in their own minds.  Col Spath is no lightweight and would not make this kind of decision lightly.  Col Spath’s mantra is “read the law, follow the law.”  Not sure about BG Baker.

  16. Charlie Gittins says:

    I am not so sure that  defying an order from a military judge qualifies as a disorder.  Black’s Law Dictionary defines a disorder as:
    “Turbulent or riotous behavior ; immoral or indecent conduct. The breach of the public decorum and morality.” 

  17. Cheap Seats says:

    Charlie – exactly my point.  The written law controls.  Compare 10 USC 950t(31) with 10 USC 848(a)(3).  Notice that in a court-martial, the following language is present: “willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial, court, or military commission.”  That language is not present in the Military Commission Process.

  18. Less Concerned says:

    Because civilian defense counsel would never put on a show to take the focus off the real issues …

  19. Another Spectator Sport says:

    So… the judge “summarily” imposed a sentence (pg 10071 the judge says he doesn’t enjoy imposing sentences) on an American citizen after “summarily” denying that citizen the right to be heard or to any other sort of due process.  Then the same judge immediately imposed a sentence of confinement to quarters.  I didn’t think restriction punishments could be imposed until after there was action by the convening authority?  Also – is this a lawful punishment?

  20. Gitmo Theater Presents... says:

    You see Gen Baker, I can deal with the AFCCA opinions, and the threats to PCS me to Gitmo, and the endless detail as the Chief Judge of the Air Force. I don’t want money, and I don’t want medals. What I do want is for you to stand there in that admittedly awesome uniform and with your University of Pittsburg mouth and extend me some friggin courtesy. You gotta ask me nicely….Sir. 

  21. Charlie Gittins says:

    I think that failing to give BG Baker an opportunity to be heard is a major screw up by the MJ.  Due Process always requires notice and an opportunity to be heard.  Law School 101.  Denial of basic due process may be an act that subjects the MJ to professional sanctions. 
    CS:  Yes, my point.  A disturbance, according to Black’s must be a “breach of public decorum and morality.”  The conjunctive seems to be pretty important, given the disjunctive used in the alternate definitions.  Your point about missing statutory language compared to 848(a)(3) is probably dispositive.  If Congress contemplated disobeying a commission order, they could have written it into the statute, as they did in the UCMJ. 

  22. Less Concerned says:

    Due Process always requires notice and an opportunity to be heard. Law School 101.  Denial of basic due process may be an act that subjects the MJ to professional sanctions. 

    Not quite: 
    Rule 809(b)(1) provides:

    When conduct constituting contempt is directly witnessed by the court-martial,the conduct may be punished summarily.

    And Rule 809(c):

    The military judge may punish summarily under subsection (b)(1) only if the military judge recites the facts for the record and states that they were directly witnessed by the military judge in the actual presence of the court-martial.

    Which is probably the reason why the MJ took time to recite the facts note that he directly observed the contempt:

    The facts I witnessed here in open court and in front of the commission I find beyond a reasonable doubt, as I directly witnessed your conduct in the presence of the commission, which is me. 


  23. Less Concerned says:

    And, by the way, acknowledging the RCMs are not directly applicable but responding to quoted blanket statement.

  24. Expert Law Guy says:

    In my most awesome opinion, the MJ has stepped in a steaming pile of dog doody on this one…

  25. RY says:

    WRT to not allowing Baker to speak, he refused to testify about the matter and refused to be placed under oath the day prior.  I’m not sympathetic to his desire to speak in court after he already refused his opportunity.  That hearing was complete, and he chose not to be heard. 

  26. Another Spectator Sport says:

    RY – I believe he was asking to be heard on the issue of whether the “court” had personal jurisdiction over him for purposes of contempt, as BGB is an American citizen.  This was not something he had ever been given an opportunity to be heard on.

  27. Charlie Gittins says:

    Last time I checked, due process stems from the Constitution.  RMCs are considerably down the pecking order from the Constitution and to the extent that procedures deny the basic requirement of due process, we may find that they are invalid.  And, there is still the pesky problem of how a disorder that was not both “breach of public decorum AND morality” qualifies as a “disorder.”  Not to mention that speaking of “disorder” in the UCMJ, there is a separate subsection for violation of an order in the contempt statute that Congress saw fit not to include in the Commissions statute.  Yeah, I think the MJ stepped in it too.  The fact that Baker refused to discuss a substantive issue of privilege does not diminish his right to be heard as a matter of due process before being punished by the military judge by loss of liberty and a fine on a separate procedural issue.  MJ let his pique get in the way of critical thought, I am afraid. 

  28. Cheap Seats says:

    Looks like egos got the best of all of them.  I just finished reading both days’ transcripts and they were so close to avoiding all of this.  Why didn’t the Judge give the “very carefully crafted” (p. 10039 lines 10-11) questions to General Baker and allowed him 30 minutes to read them first and see if there would be a problem or if he continued to stick on the privilege as to those specific questions.  Then re-engage.  Looks like the MJ was just trying to get non-privileged matters into the record.  Both sides stepped in it, but the possible DP violation in finding contempt is greatly troubling.

  29. RY says:

    Another Spectator – it was not on the personal jurisdiction piece, at least not that the transcript suggests…MJ had already heard Baker’s position on that and said as much.

  30. Another Spectator Sport says:

    RY – I respectfully disagree.  Even Judge Spath agrees that he denied BGB the opportunity to be heard.  From the top of page 53:
    BGB: I again object.  This court does not have personal jurisdiction over me.  MJ:  I appreciate that.  We certainly have considered that, and I disagree.  And I’m not even going to go through why I disagree with that.  I would suggest reading 950t and the language that precedes every single rule until you get to (31) and (32).  BGB: Your Honor, I just want to make sure that you are denying me the opportunity— MJ: I’m denying you the opportunity to be heard.  Thank you.  It’s a summary proceeding.  BGB:  I understand.  I just want the record to be clear.  There’s things that I want to say, and you’re telling me that I cannot say them.  MJ:  General Baker, this is the last chance…

  31. Nathan Freeburg says:

    Spitballing here, but you might have an MJ worried that there is no way to get this case to trial. He has no control over CDCs (Baker possibly could have played it differently — “I didn’t release them but they got a release from the client and left anyway.”)…their state bars theoretically could weigh in (they likely won’t because the reason for withdrawal of representation is classified…).  What’s he going to do? Force al-Nashiri to go pro-se? 
    (I am in no way suggesting that this is the play by the CDCs, though that’s likely what the prosecution thinks.)  There is an easy fix for this: try them in a real court in the United States of America.  There is a court with prosecutors and defense counsel with expertise in these matters in NYC.  Try them there.

  32. Holy Moly says:

    Nathan, I agree completely that these folks should be in federal district court. I know both Rick Kammen and Col Spath, the first as a colleague, the second as an MJ I practiced in front of, and I respect them both.  All I can say is that Rick really must not have felt that he could ethically continue to represent al-Nashiri.  I can only guess that Judge Spath feels that the civilian counsel and BG Baker are impugning the authority of the court, and he’s asserting that authority. 

  33. RY says:

    Another Spectator – I’m not disagreeing he denied Baker an opportunity to be heard at that time.  My point is that denying him an opportunity at that time does not mean Baker was denied any opportunity to be heard.  The lines you quote though show the personal jurisdiction issue was already before the court.  If the issue was raised before, as it appears it was, then I have no heartache with Baker not being allowed to rehash it before summary  proceeding.  As far as I can tell from the transcripts, Baker addressed the personal jurisdiction issue when he refused to testify or be placed under oath previously.

  34. Another Spectator Sport says:

    RY – Point taken.  I guess we will see, as a writ has been filed in federal district court

  35. Charlie Gittins says:

    On a separate issue, has anyone filed anything seeking to overturn the MJ’s sentence of BG Baker?  Ex Writ?  Anyone know?  Does anyone have a copy of anything that might have been filed? 

  36. Zachary D Spilman says:

    Are you not getting your CAAFlog subscription emails, Charlie?

  37. Charlie Gittins says:

    My post must have passed your notice in the world of electrons.  My thought was “ask and you shall receive” when I saw your post.

  38. Don Rehkopf says:

    [DISCLAIMER: Rick Kammen, the Learned Counsel here, and I have been friends and colleagues for many years. I have also been peripherally involved with this issue for some time now, based upon similar experience(s) with one of my GTMO cases].
    @ Charlie Dunlap – Charlie, I don’t think that the analogy with Lynne Stewart’s problems are analogous. As part of the SAM’s that were in place, which she acknowledged and agreed to before they would let her have personal access to her client, the “Blind Sheik,” they included the possibility of “monitoring.” But, there – unlike what appears to be the case here – the government did it correctly, viz., they went and got a FISA warrant expressly authorizing the monitoring. Had the government done that here, one would have expected that tidbit of information to have been presented to the Defense and MJ.
    The problem here, which I haven’t seen anyone really focus on, is the conduct of the government, not so much as the Defense. I say this because unless one is informed of the long and tortuous history of this issue, one gets a very false impression about all of this and the MJ’s attempts to coat BS with chocolate sauce.  The issue, especially with Al Nashari, began some 4 1/2 years ago. At that point, we have the following:

    Claims by defense counsel that the CIA could be eavesdropping on confidential attorney-client communications in a death-penalty terrorism case at Guantanamo Bay, if true, would raise a serious ethical issue, a military judge said Monday.
    However, while Army Col. James Pohl granted a three-hour recess to allow the defense attorneys to seek guidance from superiors and bar associations about whether they can ethically proceed under the circumstances, he refused to halt the trial until technicians could explain exactly how the sound system at the Guantanamo Bay military court works, Reuters reports.
    Lawyers for Saudi captive Abd al Rahim al Nashiri apparently had their suspicions raised about such CIA monitoring after an incident last week in which the live video feed for a pretrial hearing in another military case at the U.S. military base in Cuba was briefly cut. Pohl was furious when it became apparent that someone outside the courtroom had the power to shut off video to public viewing areas, and the exterior switch was reportedly disabled over the weekend.
    Link HERE.

    Thereafter, the government repeatedly assured both the MJ and the defense that there would be no more monitoring except for a purported wide-angle video to allegedly ensure the safety of the members of the defense team.

    The chief military prosecutor, Army Brig. Gen. Mark Martins, said this week that the government does not listen to attorney-client communications at any location.
    Link HERE.

    That was from 12 FEB 2013. In June of 2013, in a hearing in Al Nashari, the following came out:

    Wednesday in the Al-Nashiri hearing, a witness from the Office of the Chief Defense Counsel (OCDC), Brian Broyles, testified that the defense is still trying to account for hundreds of thousands of defense files—and that the prosecution was somehow granted access (though perhaps only for minutes) to an earlier backup of the network files of all defense teams. Boyles also testified that searches by the government (Individual Search Requests, or ISRs) in response to court, congressional and agency inquiries for specific information—including, perhaps, intelligence agencies—of Department of Defense (DoD) computer systems have for years made no distinctions between prosecution and defense files when running keyword searches on the network. Additionally, Boyles explained that the DoD has been monitoring defense computers—and using search terms related to detainees—without making any allowance for the fact that such searches might reveal the contents of privileged attorney work.
    In a press conference at the close of the hearings, Al-Nashiri’s defense attorney, Richard Kamen, said that the military defense lawyers on his team have been prohibited at the direction of OCDC from using their military email accounts or accessing network files until the issues are resolved  – because of a concern about the risk of breach of confidential information and of ethical duties to maintain it. The defense has asked that the proceedings be abated until those imperative concerns can be addressed. (OCDC is working with the Convening Authority to modify the computer system and network to solve the problem.) The judge still hasn’t ruled.
    Link HERE.

    See also:

    Soon after the United States Government’s display of courtroom eavesdropping capabilities, defense counsel for Guantanamo Bay detainees learned that the meeting rooms assigned to them for private conversations with their clients had been bugged with convincingly disguised microphones for clandestine audio recording.
    Link HERE.

    At that time, the above-quoted Seton Hall article, contained the best, non-classified factual and legal analysis of the problems and issues — but again, this was back in 2013. The issue was supposedly resolved, but the government lied. On 26 MARCH 2014, other defendants filed a Motion To Compel information about the on-going monitoring of attorney-client, privileged communications, to include a privileged defense email the prosecution somehow had obtained [I had exactly the same issue in my case]. That Motion set out in even more detail what was going on vis-à-vis the government’s lying about the monitoring of defense privileged communications. The Motion is available HERE.
    In November of 2016, one of the MJ’s involved with the KSM case at GTMO, issued a series of orders to the government prohibiting all monitoring of attorney-client or intra-attorney communications — the sole exception being if there was a bona fide security concern, they could monitor, but only upon advance notice to the Defense Counsel. Again, the Government assured the MJ that they would comply. They lied.
    On 14 June 2017, BGen Baker sent THIS letter to his counterpart, the Chief Prosecutor, noting that he had received (classified) information that the MJ’s orders were being violated and at that time, had ordered all defense counsel to include civilian DC and Learned Counsel from engaging in “any attorney-client meetings” at GTMO. See also, THIS ARTICLE.
    So, the prosecution has known since at least June 14th about this and done nothing. At that point, a suggestion was made for all DC’s to seek ethical guidance from their respective State Bars. In addition – something that has not been mentioned here – is the fact that the Defense Counsel then contacted a Legal Ethics Professor, Ellen Yaroshefsky [Bio HERE ] and sought and obtained a formal Ethics Opinion from her about their ethical duties under the circumstances where the government refused to disclose whether or not there was continued monitoring of attorney-client meeting and if so, the nature and extent of such. She concluded that for the DC to continue created a dual conflict: (1) Defense counsel have an ethical duty to communicate with their clients about what is going on in their cases, but here, the Government had forbidden the Defense from even telling their own individual clients what the “problem” was, so that created conflict # 1; (2) IF DC proceeded knowing full well that the government has yet to give any assurances that attorney-client communications were no longer being monitored, they would be violating the Ethical requirement to ensure that the attorney-client privilege was maintained and respected. In view of that — again, absent the Government’s agreement to stop the monitoring — that they (all defense counsel) had an ethical duty to withdraw.  Since they needed BGen Baker’s consent to withdraw, they provided that and their Ethics Opinion to him. [NOTE: I have read the entire opinion, but do not at the moment have the authority to post it].
    BGen Baker then independently reviewed all of the pertinent classified information, did his own research and “due diligence” and came to the same conclusions as Prof. Yaroshefsky (with the added benefit of having access to the classified information which she did not have), and as recent events show, he approved under his authority, their release as counsel.
    All of the above is from non-classified sources – but there is considerable classified information that the government could and should have declassified, but for reasons of the amorphous “national security,” continues to refuse to do so.
    BGen Baker’s habeas corpus petition was filed this afternoon in DC District Court. Stay tuned.

  39. stewie says:

    Fascinating stuff (perhaps not in the good sense of the word).
    BG Martins has been in that position quite awhile. It’s a pretty unusual setup as most Army GOs spend four years and then either go up or out, but he’s been a BG for about what 8 years now?

  40. OMC_alum says:

    I’ve stayed in those cuzco trailers. They should have raised cruel and unusual punishment in the habeas petition: fuzzy AFN channels on the tv, luke warm showers, unpotable water, sketchy wifi signal, subzero temps to keep the bugs at bey – I think the compliant detainees have better conditions of confinement than BG Baker. 

  41. Charlie Dunlap says:

    Hi Don!
    Quick clarification: my essay never suggested that the issues in the Lynne Stewart case were analogous, mainly because the facts in this case are apparently classified.  I was simply trying to point out that there are ways that defense counsel can be subject to monitoring.  
    That said, Stewart did not know about the electronic surveillance as the SAMs at that time did not provide for it (it was a post-9/11 add).  The evidence in her case came from a FISA order after being filtered through a “privilege team” – all of which stood up on appeal.  Technically, the filtered evidence used in her case was not privileged.
    However, what I did not think about when I was writing my post was the use of a grand jury subpoena, a tactic Mueller & co. employed to break the privilege.  I gather that Manafort’s lawyer was forced to disclose attorney-client information under the “crime-fraud” exception even though (if I’m understanding this correctly)  the attorney did not know she was providing allegedly false information to the government.  
    Should we be troubled by the use of the grand jury subpoena?  Could it have been timed to chill the participation of defense counsel who might be inclined to represent unpopular suspects caught up in this case?  Was it timed to create suspicion/concern in the minds of suspects?  Or is all just happenstance?  Thoughts?

  42. Don Rehkopf says:

    @ Charlie Dunlap – All of Lynne Stewart’s indicted crimes occurred prior to 9/11. She had signed numerous SAM’s involving the case prior to that and that certain monitoring may take place.  See, U.S. v. Stewart, 590 F.3d 93 (2nd Cir. 2009). The FISA issue in her case occurred during a prison visit in May of 2000. 590 F.3d at 125. As to the post 9/11 SAMs, if there’s a valid FISA warrant to the effect that monitoring of attorney-client communications/meetings, that may be sufficient provided the Defense – here the GTMO defense counsel – are aware of it. But, the scenario here (at least the unclassified one) is that the DCs did/do not know about the monitoring and have been repeatedly assured that they are not or have not been subject to such monitoring by the government. The key is, as Stewart I think illustrates, is for there to be some evidence of complicity or crime by the defense counsel involved. For a good analysis of the SAM issues see this ARTICLE.
    Here, if such misconduct were suspected, one would expect that (a) the DC’s security clearances would be immediately revoked; and (b) like Lynne Stewart, they would also face criminal sanctions. I think under the bizarre circumstances here, that it is safe to assume that none of the DC have provided any such “probable cause” for a FISA warrant to monitor their attorney client communications. Some years back, a GTMO defense attorney allegedly violated a GTMO SAM and had his/her clearance revoked. And then of course, there is the potential for prosecution for violating any applicable Non-Disclosure Agreements.
    Shortly after John Ashcroft’s “revised” SAMs were put into effect after 9/11, “brothers in law” Professors Akhil and Vikram Amar, looked at those SAMs and concluded, “A cardinal rule of both Fourth Amendment doctrine and attorney-client privilege law is that infringements on law-abiding privacy should be no broader than necessary.” [Link HERE.]  The problem with the GTMO scenario is that – at least as what’s publicly known – the government has not (and probably cannot) demonstrated any “necessity” for any attorney-client monitoring of any sort.
    Finally, the focus needs to be on the government, not the defense. The Executive Department via its “Alphabet Agencies,” may properly conclude that monitoring all communications is of vital importance to national security and do that. But that same Executive Department cannot, as they’re doing at GTMO and for which BGen Baker’s headaches are based upon, also decide to prosecute a defendant while surreptitiously monitoring attorney-client communications. It is a false dilemma – one created by the Executive Branch and one totally within their control. Instead of holding BGen Baker in contempt (and presumably the 3 civilian counsel as well come their turn on Monday), the MJ should have simply said

    “Here’s how we’re going to resolve this. I’m going to abate the proceedings until the Government truthfully and in good faith stops monitoring any and all attorney-client communications and can demonstrate its compliance. That will resolve the ‘ethical’ issues facing BGen Baker and the Al Nashari civilian counsel. We will deal with past ‘monitoring’ issues via a separate suppression hearing process. Once the Court is satisfied that the government is in compliance, the proceedings will be unabated and we will proceed. If the government feels that there is evidence to justify any such additional monitoring, they can either provide me ex parte with an applicable FISA warrant (assuming FISA applies at GTMO) or make an ex parte application to me, and I will then make a decision on how to continue.”

    As to the crime-fraud exception, I think first of all, that’s how they got the FISA warrant in Stewart’s case. And for anyone who hasn’t read the recent decision involving the indictments of Manafort et al., here’s a LINK to Chief Judge Howell’s opinion. Under those circumstances, I have no objection to that process because the defense counsel involved apparently and naively assumed that the information that she passed on to the government from her client was accurate and truthful. Whoops!

  43. Zachary D Spilman says:

    The Executive Department . . .  cannot . . . decide to prosecute a defendant while surreptitiously monitoring attorney-client communications.

    Just watch.

    But it’s not legal, you say? 

    I give you Al Gore:

    In 1993, Bill Clinton was pondering whether to authorise what is now called an “extraordinary rendition”, when American agents snatch a suspected terrorist abroad and deliver him to interrogators in a third country. The White House counsel warned that this would be illegal. President Clinton was in two minds until Al Gore walked in, laughed and said: “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”


  44. Dew_Process says:

    Ah, but they didn’t try him by some misnamed “military commission” in Cuba.
    The federal district Judge presiding over Zacharias Moussauoi’s criminal prosecution came to the same conclusion when after the Government stipulated that a witness confined at GTMO had information relevant to the death penalty questions, the government refused to allow his (then) defense attorneys to depose him at GTMO or to have written interrogatories submitted to him.  As a sanction, she scrubbed the death penalty and on appeal, while her sanction was reversed as being “too severe,” the issue became moot when the jury voted against the death penalty.

  45. Charlie Dunlap says:

    Hi Don!
    We’ll agree to disagree on the sequence of events in the Lynne Stewart case, but the appellate decisions do say that the the audio surveillance was conducted “unbeknownst” to her.  I that while she might have thought the guards could overhear here, she was unaware of the possibility of the electronic audio monitoring that took place.  I don;t think that the “crime-fraud” exception had anything to do with the FISA warrant in the Stewart case.
    I am aware of no requirement under FISA to notify anyone – to include defense counsel – that they are subject to surveillance.  In addition, the requirements of a FISA order vary in terms of who and where the surveillance occurs but the bar is not as high as it would be for law enforcement warrants.
    I’m genuinely surprised that you are fine with the way the grand jury was used against what seems to be an innocent lawyer to break the privilege in Manaort’s case, though I understand how unpopular Manafort is – and I certainly carry no brief for him.  That said, the normalization of this tactic – to include its timing and public disclosure – could, I believe, have a chilling effect on the defense bar, as well as those unpopular clients who might seek their counsel.  I do, of course, recognize that reasonable people can differ on that. Thanks, Charlie