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.

8 Responses to “Top Ten Military Justice Stories of 2017 – #6: Baker confined, Bergdahl free”

  1. Vulture says:

    That’s a stretch Zach.  You want us to consider the stupidity of General Baker confined to quarters vis-a-vis Bergdahl, and the 0 for 7, and the 90 minutes while Bergdahl is walking free, and those 5 released Taliban.  What about those others that have been held in confinement for 16 years without a trial?  When did that stop being offensive to American Jurisprudence? 
     
    Here’s an answer.
    Last week Scholarship Saturday posited the suggestion to have retired military judges file the empty federal seats.  Consider the casting call:
    1.  Holy-Roly “Taking the New-New Testament to the Masses.”
    2.  Pontius Pilate “A View From the Bench – Looking the other way til your head is up your robe crease.”
    3.  “Here Come Old Flat Top, the Musical.”
    (and since we hold this in juxtaposition)
    4. “I am Sparticus.”  (Because it is, after all, the President’s Justice Department.)
     
    Absurdity? 
    You said it.  But two years ago you made the number one story that the military justice system did not collapse.  Pinning its current state to Bergdahl is over the line.

  2. stewie says:

    This post is…well, absurd. To link the two cases is…well, absurd. There is no link, they have zero to do with each other. There were other cases on a probably near daily basis where someone in the military did something worse than what General Baker did who ended up with no confinement either through sentence or deal.
     
    But somehow Bergdahl is the one we are supposed to compare? Just say “I think the Bergdahl sentence by itself was absurd.” OR “I think the Baker confinement was absurd.” Or Both. But to link the two together is absurd.

  3. DCGoneGalt says:

    How was Bergdahl (by itself . . . not linked with Baker, because I don’t see the link) not the #1 story?  That case was a Hall of Famer at getting people’s blood heated.

  4. Brian Bouffard says:

    Bergdahl.
     
    Benghazi.
     
    Connection?  Well, I think the mere fact that both words appear in this comment is an ominous development, don’t you?

  5. stewie says:

    I’m thinking I’m starting to get it. Baker has five letters, Bergdahl has eight…together they add up to…13!
    Bergdahl’s letters add up to 49…4+9 is…13! Baker’s letters only add up to 37 but add the two hours he spent in confinement you get 39, which is 13 times 3!
     
    The connection is obvious.

  6. k fischer says:

    I don’t think this post is absurd or the comparison without value.  They were happening at the same time.  One person who didn’t deserve confinement got confinement.  The other person who a lot of people thought deserved confinement didn’t get confinement.  Or another way of putting it: One guy got confined for doing his job, and the other guy escaped confinement for not doing his job.
     
    I’m sure there were a couple of Marines who know General Baker commented on the irony in knowing that he was confined down at GTMO just as BB was exiting the courtroom at Ft. Bragg.
     
     

  7. stewie says:

    kf, I’m going to suggest to you that hardly anyone at GITMO was tracking Bergdahl’s sentence in real time so that they could compare it to Bakers. Heck, we MilJus nerds talked about the two issues simultaneously on this blog and WE didn’t make any such comparison.

  8. DCGoneGalt says:

    The connection between the two . . . I’m still not seeing it.  Is it like one of those computerized colorful 1980s pictures that you have to stare at and relax your eyes before it comes into focus?