Military Commissions convening authority approves BGen Baker’s contempt finding, disapproves punishment, refers for ethics inquiry
In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.
The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.
The convening authority also announced his intent to refer the matter for an ethics review.
The full text of the release is after the jump.
The Office of Military Commissions (OMC) Convening Authority (CA) has reviewed the contempt proceedings against Brigadier General John G. Baker, United States Marine Corps, Military Commissions Defense Organization. The CA has determined that the findings of the military judge are correct in law and fact. The CA is forwarding the findings and record of proceedings to the appropriate authority overseeing Brig. Gen. Baker’s service as a Judge Advocate within the Department of the Navy, the DoD Standards of Conduct Office, and the DoD General Counsel’s Office, and the Staff Judge Advocate to the Commandant of the United States Marine Corps for an administrative ethics review. The CA is not requiring that Brig. Gen. Baker pay the original $1,000 fine or serve the remaining confinement term, which was initially 21 days.
With regard to the underlying security concerns that led to the attempted resignation of defense counsel in the case of United States v. Al-Nashiri, the CA will also recommend to the Joint Detention Group at Guantanamo Bay that a “clean” facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds.
The CA noted that it was within the military judge’s authority to rule upon the defense counsels’ request to withdraw from the case. The presiding judge, US Air Force Colonel Judge Vance Spath, found that there was “no good cause” to withdraw after reviewing both the classified and unclassified information concerning the defense’s motion.
During the Oct. 31 proceeding, Judge Spath said, “On 20 September 2017, again after consideration of all the classified and unclassified filings… there wasn’t any basis to find there had been an intrusion into attorney-client communications between this accused and this defense team.”
The CA acknowledged that the classified nature of the proceedings have shaped the commission’s proceedings. The declassification of relevant documents concerning this matter needs to be expedited to ensure the now-classified analysis can be shared with the appropriate parties to reinforce the integrity of the process. The CA will work with the necessary declassification authorities to improve this area of concern.
Three things stand out.
First, the conclusion that “the findings of the military judge are correct in law and fact” glosses over the enormous difference between the court-martial contempt power (Article 48) and the commissions contempt power (§ 950t(31)), including that the violation of an order of a court-martial is contemptuous, while violation of an order of a military commission is not contemptuous. Baker was found in contempt because he refused to testify. That would (probably) meet the standard of contempt applicable in courts-martial, but it doesn’t meet the more-strict standard applicable to a commission (discussed here). So I think the conclusion that the findings are correct in law and fact is wrong.
Second, while the Manual for Military Commissions (and the Manual for Courts-Martial) gives a convening authority the power to approve or disapprove a punishment for contempt, it neither requires nor authorizes a convening authority to approve or disapprove the underlying finding of contempt. So I think the conclusion that the findings are correct in law and fact is superfluous.
Third, the rules for professional conduct for attorneys in the Department of the Navy (JAGINST 5803.1E) imagine two types of ethics complaints against such attorneys: informal complaints (that must be referred to the JAG for further review, but do not by themselves trigger professional discipline), and formal complaints. The requirements for a formal complaint are that:
a. The complaint shall:
(1) be in writing, signed (by hand or electronically), and offered to any superior to the subject of the complaint;
(2) demonstrate that the complainant has personal knowledge, or has otherwise received reliable information indicating, that:
(a) the covered attorney concerned is, or has been, engaged in misconduct that demonstrates a lack of integrity, that constitutes a violation of these Rules or the Code of Judicial Conduct or a failure to meet the ethical standards of the profession; or
(b) the covered attorney concerned is ethically, professionally, or morally unqualified to perform his or her duties; and
(3) contain a complete, factual account of the acts or omissions constituting the substance of the complaint, as well as a description of any attempted resolution with the covered attorney concerned. Supporting statements and documentation, if any, should be attached to the complaint.
b. Forwarding a document that contains the information required in paragraphs (2) and (3) above (e.g., a command investigation or non-judicial punishment package) can also serve as a complaint under this instruction.
c. A complaint may be initiated by any person.
JAGINST 5803.1E, encl. (2), ¶ 4. It’s not clear from press release whether the convening authority intends to make a formal complaint and, if so, whether such complaint will be based on a claim of misconduct or a claim of lack of qualifications.