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.

7 Responses to “Military Commissions convening authority approves BGen Baker’s contempt finding, disapproves punishment, refers for ethics inquiry”

  1. Dew_Process says:

    Absent someone tendering BGen Baker testimonial immunity, why doesn’t Art. 31, cover him?  Both he and Col Spath are on AD and “subject to the Code.”  Just curious.

  2. Scott says:

    Dew_Process, that’s a good point.  One of those things you don’t think of, but then seems obvious after someone says it.
    As devil’s advocate, I suppose they could argue his answers to the questions would not be such that they could incriminate him.  And since he wasn’t suspected of any violation of the code, or in jeopardy of any incrimination, he could not invoke Article 31.  But the code is so broad, that’d be a tough argument to make (e.g. dereliction).

  3. Zachary D Spilman says:

    Insofar as any privilege matters to the contempt finding, this excerpt of the proceedings on October 31, 2017 – the proceedings that precipitated the contempt hearing – provide important context:

    [MR. SUNDEL]: Colonel, Philip Sundel with the —-

    MJ [Col SPATH]: Come on up here.

    So you are not an attorney of record for Mr. al Nashiri. So what is your position?

    [MR. SUNDEL]: I am not, sir. I am Acting General Counsel for the Military Commissions Defense Organization, and I’m just here to inform the military commission that pursuant to Rule 501(b)(1), the chief defense counsel is invoking privilege and will not testify.

    MJ [Col SPATH]: Well, he will come up and invoke privilege to each question I ask and then I will rule on whether or not that information is privileged or I’m going to pierce it. And I have some questions where he has filed an affidavit, clearly waiving any privilege that he might be claiming, because he filed it to the commission.

    [MR. SUNDEL]: Your Honor, under 501(b)(1) he is invoking his right to not testify. The extent of the nonprivileged information has already been provided to the court. He has nothing to add.

    MJ [Col SPATH]: And again, he will be able to say he is not testifying to each question, just like we would do anyone invoking their Fifth Amendment right. He can say it to each question if he wants to. But I would suggest that y’all have an honest discussion with yourselves about what is privileged and what is not when you file an affidavit and make yourself a witness about factual matters.

    There are questions about that that don’t involve discussions, don’t involve attorney work product; they involve: Did you do this? Pretty easy. Is your signature on it? And I also have some direction for him. So he is going to come and get sworn in and testify. You are welcome — you can sit right there and you are welcome to advise him if you disagree as we move forward. But I don’t plan to ask him anything that is even close to privileged information. However —-

    [MR. SUNDEL]: Colonel, under 5 —-

    MJ [Col SPATH]: —- is not representing the accused in this case and he made himself a witness by issuing a ruling, and a decision, to excuse counsel. And you know that.

    [MR. SUNDEL]: Under 501(b)(1) —-

    MJ [Col SPATH]: I appreciate you’re going to keep saying that.

    [MR. SUNDEL]: —- he is refusing to be a witness. It is not an invocation that needs to be made on the stand.

    MJ [Col SPATH]: That is your interpretation —-

    [MR. SUNDEL]: He is electing to refuse to be a witness.

    MJ [Col SPATH]: That is your interpretation. Apparently you all struggle with this. I get to interpret the law and I get to rule.

    [MR. SUNDEL]: Your Honor, if you —-

    MJ [Col SPATH]: I get to interpret it. That is how it works. And that is how it works anywhere. This isn’t some weird session, even down here, and I know you all do that. This is a normal proceeding. And I am telling you that while I appreciate what you are saying, he has filed, in this case, making statements. That makes him different than someone who has been quiet as a defense counsel. That makes him different. He has chosen to make himself a witness in this case. I didn’t choose that.

    Transcript at 10029-10031 (marks in original). 

  4. Dew_Process says:

    @ Scott – Don’t forget that Art. 31(b) and (c), also come into play as Col Spath is clearly requesting / demanding a “statement” from BGen Baker.
    @ Zach – The Fifth Amendment is the threshold, but Congress can (and did via Art. 31) set a higher bar, don’t you think? Did the government argue that BGen Baker somehow “waived” the privilege, because that seems to be where Col Spath is headed. But, imho, it’s pretty elementary criminal procedure that someone could agree to speak and then subsequently invoke their rights / privilege not to be a witness or to testify.
    That aside, the (very) plain language or MCRE, Rule 501(b): provides:

    (b) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to:
    (1) Refuse to be a witness;
    (2) Refuse to disclose any matter
    * * * * *

    Many years ago, a former Army JAG wrote about his experiences as a defense counsel trying cases in Vietnam, especially a group of Special Forces guys, charged with executing a Vietnamese man who they thought was a “double agent.” John Stevens Berry’s book, coined the phrase “Black Robe Fever,” and he described it as this:

    “Black Robe Fever is . . . that dread disease which may destroy the integrity of any judge – state or federal. A judge who prides himself on being inconsiderate and discourteous to the point of being tyrannical has contracted the Fever, and it is fatal: it leads to death of the mind.”

    Those Gallant Men: On Trial in Vietnam, p. 70 (Presidio Press, 1984).

  5. Scott says:

    “This isn’t some weird session, even down here, and I know you all do that.”  Awesome line.
    Dew_Process, thanks for the book suggestion.  I’ll have to pick that one up.  There’s a sad shortage of JAG books and I can only ready “JAG in space” so many times:

  6. interested onlooker says:

    I think I would like to buy COL Spath a beverage of his choice.  Maybe two.

  7. Vulture says:

    New information here.