Earlier today I noted that BGen Baker filed a petition for a writ of habeas corpus seeking release from confinement to quarters after being found in contempt by military commission judge Colonel Spath in connection with a dispute over the release of civilian attorneys representing Abd al Rahim al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

As I wrote in this post, BGen Baker’s actions do not meet the statutory definition of contempt applicable to military commissions.

Since then I’ve had a chance to read the brief filed on Baker’s behalf in support of the habeas petition and – while I still believe that Baker’s conduct is not contempt – I think the petition is a loser.

Here’s why.

For starters, let’s forget about procedural issues like exhaustion of remedies. BGen Baker certainly could have sought deferment of the punishment and then challenged the contempt finding within the DoD and military commissions system, and that’s probably a solid reason to deny habeas, but that makes for less-interesting blogging.

So, Baker’s brief makes four arguments:

1. Respondent Spath Deprived Petitioner of Due Process by Expressly Denying Him the Opportunity to Be Heard before Finding Him in Contempt and Depriving Him of His Liberty.

2. A Judge in a Commission Case Convened Under the Military Commissions Act Has No Unilateral Power to Order Confinement.

3. The Military Commission Had No Personal Jurisdiction Over Petitioner.

4. None of Petitioner’s Acts Were Contemptuous.

I think the first three of these arguments are incredibly weak. The fourth, while entirely correct, is poorly presented.

The first argument in the brief focuses entirely on the summary nature of the proceedings. Colonel Spath found BGen Baker in contempt summarily, and he explicitly denied Baker the opportunity to speak during the contempt hearing. That wasn’t cool, however it is expressly authorized by Rule for Military Commissions 809(b)(1) (and also by Rule for Courts-Martial 809(b)(1)), which states:

Summary disposition. When conduct constituting contempt is directly witnessed by the commission, the conduct may be punished summarily.

Nevertheless, Baker’s brief insists that “summary contempt proceedings are ‘regarded with disfavor.'” Br. at 11 (quoting Taylor v. Hayes, 418 U.S. 488, 498 (1974) (quoting Sacher v. United States, 343 U.S. 1, 8 (1952))). Disfavor is a pretty weak characterization, particularly in this context.

Now there is – perhaps – a strong argument that the courts should be especially critical of summary proceedings before military commissions (even when they involve high-ranking military lawyers). But the brief doesn’t take that approach. Instead, it asserts that the problem is “a 24-hour delay between the purported contempt and the summary contempt proceeding.” Br. at 11. That delay somehow (and without citation to authority) transforms a summary proceeding into a deprivation of due process. Put differently, taking a break, perhaps to let cooler heads prevail, changes the constitutionally-permissible options.

Not likely.

The second argument in the brief is where things really start going sideways:

Congress, in a 2011 amendment, made explicitly clear that the judges presiding over commissions under the Military Commissions Act do not have unilateral authority to punish for contempt. Until then, 10 U.S.C. § 848 provided the judges of military commissions with the power to unilaterally punish for contempt certain acts, imposing punishments up to confinement for 30 days and a fine of $100 (which the 2011 law also raised to $1,000). In 2011, Congress enacted an amendment that stated, “This section does not apply to a military commission established under chapter 47A of this title [ the Military Commissions Act].”

Br. at 12. Two big problems here.

First, 10 U.S.C. § 848 (that’d be Article 48, UCMJ) wasn’t changed to not apply to the commissions in 2011; it was changed to not apply to the commissions in 2006 – in § 4 of the Military Commissions Act of 2006, 120 Stat. 2600, 2631 (2006). So the brief is just plain wrong about the law.

Second, the applicable statue provides that “a military commission under this chapter may punish for contempt any person. . .” 10 U.S.C. § 950t(31) (emphasis added). So a commission quite clearly has the power to punish for contempt.

Now perhaps there’s an argument to be made that a military commission is different from a military judge detailed to a military commission. After all, the Supreme Court explained that – in the court-martial context – when a military judge acts “they do so as a court-martial, not as a military judge.” Weiss v. United States, 510 U.S. 163, 175 (1994). The same reasoning likely applies to a military commission. But the brief doesn’t make that argument. Instead, the brief focuses on statutes that outline the requirements for conviction of offenses by commissions. Contempt, however, is fundamentally different from an independent criminal offense.

The third argument in the brief is that the commission lacks personal jurisdiction over BGen Baker. This argument is easily rejected by a hypothetical. Imagine a totally sane witness at a military commission decides to have some fun, removes his clothes, and defecates in the courtroom. On the military judge’s keyboard, no less. Contemptuous? Punishable? Well, under § 950t(31), a commission “may punish for contempt any person. . .” (emphasis added). To suggest – as the brief does – that the contempt statute does not apply to the Chief Defense Counsel of the Military Commissions Defense Organization is to suggest that the statute does not apply to the defecating witness, which is to suggest that the statute is practically meaningless. That’s absurd.

Finally, the fourth argument in the brief is that BGen Baker’s conduct wasn’t actually contempt. I outlined this argument in my earlier post and, frankly, I did a better job of it than the brief does. This is the winning argument, but the brief isn’t.

So where does that leave us?

Well, BGen Baker is still confined to his quarters, which isn’t exactly the worst confinement at Guantanamo Bay Naval Base (nevermind the rest of Cuba). And I’m pretty sure he just won a bet that he and I made back when I was a Marine Corps defense counsel (worried about pissing off military judges) and he was the Chief Defense Counsel of the Marine Corps (telling me to not worry and to focus on my clients).

But I’ll be surprised if he wins his habeas petition.

5 Responses to “A closer look at BGen Baker’s habeas petition”

  1. Don Rehkopf says:

    While I’m not as pessimistic as you are, in re-reading it, two significant omissions jumped out at me.  First, the failure to cite to the Non-Detention Act, 18 U.S.C. § 4001(a), which states in full:

    No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

    No “Act of Congress” authorizes the imprisonment of BGen Baker, which as you noted, was sort of weaved into point IV.
    In an interesting and relevant case from the Vietnam era, Noyd v. Bond, 395 U.S. 683 (1969), the Court dealt with a habeas corpus petition by an officer who had not exhausted his administrative remedies. Justice Douglas, in Chambers, ordered the Air Force to release Captain Noyd from custody while the Court considered the merits of the case, Noyd v. Bond, 393 U.S. 1048 (1968) [Douglas, J., (Chambers).
    On the merits the Court noted:

    In light of the substantial questions raised by petitioner, however, we think it plain that petitioner in no sense acted in bad faith when he failed to exhaust his military remedies before invoking the jurisdiction of the District Court. Consequently, we consider it appropriate for us to continue Mr. Justice Douglas’ order in effect until our mandate issues, in order to give petitioner an opportunity to present his arguments to the Court of Military Appeals. [citations omitted]. While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires. [emphasis added].

    395 U.S. at 699.

  2. Zachary D Spilman says:

    Well, Don Rehkopf, Congress said – in 10 U.S.C. § 950t(31) – that a commission “may punish for contempt.” The statute does not limit the punishment that may be imposed. Contra 10 U.S.C. § 848(b) (limiting court-martial contempt punishment). 

    Congress also said – in 10 U.S.C. § 948d – that a commission “may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter.”

    The President then said – in R.M.C. 201(c):

    (c) Contempt. A military commission may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $1000, or both.

    And Colonel Spath – acting as a military commission – punished what he found to be contempt with a punishment of confinement for 21 days and a $1,000 fine.

    So there’s a clear line from § 950t(31) to § 948d to R.M.C. 201(c) to Colonel Spath. 

  3. Cheap Seats says:

    Don, despite the Noyd v. Bond opinion above, I think exhaustion is a real concern.  See Blake v. Ross, 578 U.S. ____ (2016).  As long as an administrative remedy is available, it must be exhausted.  Exhaustion is an affirmative defense, but the posture of the case shows that the CA had not acted at the time of filing.  Under the PLRA 42 USC 1997e(a), the judge may be able to dismiss without prejudice without dealing with the merits.

  4. Don Rehkopf says:

    Your reasoning assumes that BGen Baker’s conduct constituted contempt. As you previously pointed out, Congress defined “contempt” in the context of Military Commissions as:

    A military commission under this chapter may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.”

    I don’t recall Col Spath making any specific findings against BGen Baker under that definition.

  5. Don Rehkopf says:

    @ Cheap Seats:  I agree in principle that generally speaking [pun intended], that exhaustion (and comity with an Article I court) is a definitive hurdle. But, where exhaustion is most likely futile, failure to exhaust is excused.
    Some collateral facts that could influence all of this:

    1.  Judge Lamberth is a former Army JAG and served as such for a year in Vietnam – so he has some knowledge of the military justice system;
    2.  He was the Chief Judge of the federal district court in DC when the GTMO habeas cases started to be filed. He criticized the GTMO “process” quite frequently and gave the DoJ a hard time on more than one occasion on some of those cases.
    3.  Under Noyd, he could also (a) order BGen Baker’s release from confinement without granting habeas relief; (b) stay the habeas case pending before him; and (c) direct BGen Baker’s counsel to exhaust his military/admin remedies, i.e., the CA, and relief (assuming jurisdiction) with the Commission’s Appellate Court.
    4.  The habeas statute itself, 28 USC Sec. 2441, does not expressly mandate exhaustion, rather in pertinent part it states:
    (c) The writ of habeas corpus shall not extend to a prisoner unless
              (1) He is in custody under or by color of the authority of the United States or is committed for trial before   some court thereof; or
              (2)He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States;   . . .
    Both would seem to apply here.

    SCOTUS has been all over the place when it comes to exhausting military remedies. See, e.g., Schlesinger v. Councilman, 420 U.S. 738, 746-48 (1975)[may attack judgment that is void]; and Boumediene v. Bush, 553 U.S. 723, 783 (2008), where the Court held:

    Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing.   . . .   These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.

    So, while I don’t disagree with you and wouldn’t be surprised by a denial on exhaustion grounds, it’s still a very murky area of law.