Last month, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was found in contempt by Air Force Colonel Vance Spath, who is the chief judge of the Air Force and a judge on the military commissions. Spath punished Baker with 21 days confinement and a $1,000 fine. Baker served three days of that confinement in quarters before the commissions convening authority deferred the rest, and then ultimately disapproved both the confinement and the fine.
The basis of the contempt finding was General Baker’s refusal to appear as a witness to answer questions by Spath about 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). I analyzed the finding in this post, and concluded that Baker’s conduct does not constitute contempt as the term is defined by Congress in 10 U.S.C. § 950t(31) (the commissions contempt power).
After the contempt finding, and while still confined to quarters, General Baker filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. I analyzed the petition in this post and concluded that it was a loser. Judge Royce C. Lamberth heard oral argument on the petition and deferred ruling (after the convening authority deferred the confinement and Baker was released).
Last Friday, General Baker filed a supplemental brief. A copy is available here.
I believe this brief is much stronger than the first brief, in large part because it primarily argues that General Baker’s conduct was not contempt (the prior brief focused on the summary nature of the proceeding and a jurisdictional claim). But it’s still hard to call it a winner because Baker no longer faces the threat of confinement and so habeas depends on the existence of continuing collateral consequences. Those consequences are asserted to be that:
the action complained of was a finding of criminal contempt, thus presumptively satisfying the continuing collateral consequences requirement.
Br. at 9. And that:
The convening authority referred Petitioner to, among others, the Judge Advocate General of the Navy and the Commandant of the Marine Corps for an ethics review.
Br. at 10. And that:
the unlawful contempt finding alone could result in Petitioner’s loss of the increased retirement pay for the grade of brigadier general if it were used to find that his service as a brigadier general was not satisfactory.
Br. at 12.
Of these three assertions, the second and third seem to be easily separated from the actual contempt finding. General Baker’s underlying conduct (irrespective of the contempt finding) is as – and probable more – likely to be the basis for any adverse action as the contempt finding itself, because the person taking adverse action will draw their own conclusions from the underlying conduct.
The first assertion is somewhat dubious, as a contempt finding by a military commission seems readily distinguishable from a contempt finding by a regular court, and I don’t think such a finding is so easily characterized as criminal. Sui generis (unique) would be a better term.
Nevertheless, I still believe that General Baker’s conduct clearly does not amount to contempt as the term applies to the commissions. The convening authority’s action on the contempt finding (available here) summarily concluded that “it is well established in law that your refusal to follow the judge’s order to take the stand to testify as a witness constituted contempt of court.” Action at 5, ¶ 11. This conclusion isn’t so much wrong as it is sloppy, because disobeying an order is specifically included a reason for a court-martial to find someone in contempt, but specifically excluded as a reason for a military commission to do so.