On November 1, 2017, Marine Corps Brigadier General John Baker was confined to his quarters (a room in a trailer) at U.S. Naval Station Guantanamo Bay. Air Force Military Judge Colonel Vance Spath ordered the confinement after finding General Baker in contempt (for conduct that clearly did not meet the applicable definition of contempt).
Two days later, at about 11:30 a.m. eastern on November 3, 2017, Army Military Judge Colonel Jeffery Nance sentenced Sergeant Bowe Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge – but no confinement – for Bergdahl’s desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.
The facts as we know them suggest that General Baker was still confined at the time Bergdahl’s no-confinement sentence was announced. The convening authority sua sponte deferred Baker’s remaining confinement a few hours later, shortly before 1 p.m. eastern.
The incongruity – if not outright absurdity – of General Baker’s confinement and Sergeant Bergdahl’s liberty is the #6 Military Justice Story of 2017.
General Baker is Chief Defense Counsel for the Military Commissions and the head of the Military Commissions Defense Organization. His duties include supervising the defense of persons accused before military commissions. One such person is Abd al-Rahim al-Nashiri, a Saudi accused of orchestrating the 2000 bombing of USS Cole. Al-Nashiri was captured in 2002, spent many years in CIA custody, and now faces the possibility of a capital sentence.
Al-Nashiri’s defense team included civilians with experience defending capital cases. On October 6, 2017, they asked General Baker to allow them to withdraw from the case, and on October 11 General Baker approved their request. Colonel Spath (the military judge) disagreed with that approval, and ordered a hearing on October 31, ostensibly to sort out the issue. Colonel Spath called General Baker to testify as a witness during that hearing, but Baker refused (claiming various privileges).
There’s plenty of room to debate the merits of General Baker’s approval of the withdrawal of the civilians and his refusal to be a witness, but they don’t really matter. What matters is that Colonel Spath responded with a problematic contempt finding and an objectively severe punishment. Of the maximum possible punishment for contempt of 30 days of confinement and $1,000 fine, Colonel Spath ordered General Baker serve 21 days and pay the full $1,000.
Baker ultimately served only 3 days confinement (and the rest of the punishment was disapproved by the convening authority), but that’s 3 days more confinement than Bergdahl served.
In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for – ironically – five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl was charged with the desertion and misbehavior offenses.
Bergdahl’s case captured a lot of our attention. It made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016. But the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.
In the end, Bergdahl elected to be tried by a military judge alone, and he pleaded guilty without any promises from the Government. The prosecution asked for a sentence including confinement for 14 years, while the defense asked for no confinement and a dishonorable discharge. Bergdahl got almost exactly what his defense counsel suggested.
Maybe someday we’ll learn how General Baker felt during the approximately 90 minutes when he was confined and Bergdahl knew he was free. But that dichotomy is the #6 Military Justice Story of 2017.