A reader provided this link to a draft transcript of yesterday’s contempt proceedings in the al Nashiri military commission at Guantanamo, during which Air Force Military Judge Colonel Vance Spath found Marine Corps Brigadier General John Baker in contempt. A draft transcript of the proceedings that precipitated the contempt proceedings is available here.

General Baker has since petitioned for a writ of habeas corpus.

Having reviewed both transcripts, the applicable Rule for Military Commissions 809 (which is substantially identical to Rule for Courts-Martial 809), and the underlying statute 10 U.S.C. § 950t(31) (which is significantly different from Article 48, 10 U.S.C. § 848), I am pretty confident of two things:

First, what General Baker did is not contempt within the meaning of the statute.

Second, I warned about this.

10 U.S.C. § 950t(31) gives a military commission power to 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.

This is substantially different from the contempt power of courts-martial, provided in Article 48 (10 U.S.C. § 848), that gives the power to punish for contempt:

any person who:

(1) uses any menacing word, sign, or gesture in the presence of the judge during the proceedings of the court-martial, court, or military commission;

(2) disturbs the proceedings of the court-martial, court, or military commission by any riot or disorder; or

(3) willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial, court, or military commission.

(emphasis added). Paragraph (3) uses the term military commission, but the statute separately states that it does not apply to military commissions like the al Nashiri commission.

Congress amended Article 48 in the Ike Skelton National Defense Authorization Act for 2011, 124 Stat. 4137, 4218 (2011), expanding the definition of contempt punishable under Article 48 to include paragraph (3). Before that amendment the statute read similar to § 950t(31), stating:

A court-martial, provost court, or 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 $ 100, or both. This section does not apply to a military commission established under chapter 47A of this title.

Article 48, 10 U.S.C. § 848 (2010). That final sentence – making Article 48 inapplicable to the commissions – was added by § 4 of the Military Commissions Act of 2006, 120 Stat. 2600, 2631 (2006).

The enormous difference between the court-martial contempt power (Article 48) and the commissions contempt power (950t(31)) is that violation of an order of a court-martial is contemptuous, while violation of an order of a military commission is not contemptuous.

Furthermore, the fact that Congress amended Article 48 to add violation of an order, rule, decree, etc. as an independent basis for contempt conclusively demonstrates that such a violation is not a disorder – as otherwise prohibited – because if it were then the new language is mere surplusage (and statutes are deliberately interpreted to avoid that).

All General Baker did was violate an order of a military commission.

Specifically, on October 31, 2017, General Baker was ordered to testify and to rescind his release of al Nashiri’s civilian counsel. The military judge said:

MJ [Col SPATH]: All right. So, I’m ordering you to testify. You are refusing to come up here, take the oath, and testify; is that accurate?

CDC [BGen BAKER]: That is accurate; yes, sir.

MJ [Col SPATH]: All right. I’m also ordering you to rescind the direction you gave when you excused both learned outside — appointed learned counsel and the two civilians. Are you refusing to comply with that order as well? You excused them; you released them.

CDC [BGen BAKER]: Yes, sir.

MJ [Col SPATH]: I’m ordering you to send them a note saying you are not releasing them. I can’t order Mr. Kammen here. I know that. I know you’ve got two DoD employees that work for you. I know what their government contract says. But that is your choice as their supervisory attorney, and everybody can deal with that, including your supervisor. My question to you is: I’m ordering you to send them a memo telling them their withdrawal is not approved because you don’t have the authority.

CDC [BGen BAKER]: Oh, I’m definitely not going to —-

MJ [Col SPATH]: Okay.

CDC [BGen BAKER]: —- I am definitely not — Your Honor, Rule 5-0 — I understand your ruling. I understand your ruling.

Transcript at 10042-10043 (marks in original). The next day, at the contempt hearing, the military judge found:

So I find, beyond a reasonable doubt, that on 31 October 2017 you willfully refused to obey the commission’s order to rescind your excusal and that that behavior was contemptuous to the commission and it was in front of the commission.

Your refusal to testify on multiple occasions in my presence is also contemptuous and contemplated both by the Manual for Courts-Martial and the Military Commissions Act as an act of contempt and a disorder.

I find beyond a reasonable doubt that your acts then constituted disorders that disturbed these proceedings, disorders that disturbed these proceedings significantly.

that disturbed these proceedings significantly. I would note that your approval of the withdrawal of counsel, General Baker, has been determined to be an act outside of your authority by this court, and as of yet no superior court has disturbed that.

Transcript at 10063-10064.

These actions by General Baker undoubtedly affected the military judge’s plans for the proceedings, but they are not a “menacing word, sign, or gesture,” or a “riot or disorder” that disturbs the proceedings. Instead, they are merely violations of “the lawful writ, process, order, rule, decree, or command” of the military judge. That’s something that could be the basis for a court-martial contempt proceeding, but it clearly does not meet the statutory definition of contempt applicable to military commissions.

Nevertheless, the military judge punished General Baker, he did so summarily, and he ordered that General Baker be confined.

This is where my warning comes in.

Back in 2015 I made a public comment to the Joint Service Committee in connection with its annual review of the Manual for Courts-Martial. In that comment I wrote:

Congress amended Article 48 in the Ike Skelton National Defense Authorization Act for 2011, 124 Stat. 4137, 4218 (2011), expanding the definition of contempt punishable under Article 48 to include: “willfully disobey[ing] the lawful writ, process, order, rule, decree, or command of the court-martial.” Additional procedural protections for a person accused of contempt should accompany this Congressional expansion of the contempt power.

Particularly, the ability of a court-martial to address contempt summarily (pursuant to Rule for Courts-Martial 809(b)) should be limited. A reasonable limitation would permit a court-martial acting summarily to issue no more than a finding of contempt without punishment.

I then gave examples of how military judges (specifically in the Navy-Marine Corps trial judiciary) were abusing the contempt power and I suggested adding a requirement for a specific warning before personnel of courts-martial (including counsel) would be subject to the contempt power.

I renewed that suggestion in my comments submitted at the beginning of this year, and again in comments submitted in response to proposed changes implementing the Military Justice Act of 2016 (available here; I haven’t yet had the chance to summarize them for this blog).

The circumstances of General Baker’s contempt hearing shows that increased procedural protections for persons accused of contempt are long overdue.

6 Responses to “The non-contempt contempt proceedings at Guantanamo”

  1. John Marshall says:

    You’re absolutely right about the needed protections for counsel in UCMJ proceedings.  The sad thing is that it will take a general being summarily confined and fined for anything to be done… that is if anything is done at all.

  2. Don Rehkopf says:

    Latest update on what’s going on and what happened today in federal court, HERE.  None of the 3 civilian attorneys are going to appear in Virginia tomorrow.

  3. Zachary D Spilman says:

    From your link, Don Rehkopf:

    Spath’s order to Kammen, Eliades and Spears to go to the Virginia site noted: “Failure to comply with this order may constitute contempt upon these proceedings as well as another voluntary absence by counsel of record.”

    And yet – for the reasons I discussed above – in a military commission mere disobedience of an order is not contempt. Period.

    Maybe it should be, but it’s not. In the words of Colonel Spath:

    we all can make jokes that I don’t think are appropriate about Congress doing things that are confusing or we might not agree with what they do. Not my role.

    When Congress acts, they intend to act. What they say they mean to say.

    Transcript at 10067-10068.

  4. Charlie Gittins says:

    And Spath may not be a competent reader.

  5. Maz says:

    Here’s an interesting article by a civilian attorney on the issues, he links to but does not comment at any length on Maj Spilman’s parsing of the statutory authority for findings of contempt in military commissions vs. courts-martial.  I’m curious what you think?

  6. ThatGuy says:

    Lawfare is reporting that New York U.S. District Judge Gregory H. Wood rejected a Hofstra law professor’s bid to stop a  subpoena in the USS Cole case, the Miami Herald reports. Chief war court prosecutor Brig. Gen. Mark Martins ordered legal ethics expert Ellen Yaroshefsky to report to the military commissions headquarters on Friday. She is expected to give testimony related to an opinion she gave to a defense attorney in the Cole case, who has since resigned.  (see https://lawfareblog.com/todays-headlines-and-commentary-1438)