An interesting development in the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions).

Miami Herald reporter Carol Rosenberg reports here that commissions prosecutors filed a motion to release the audio of the commissions proceedings on October 31 and November 1, 2017. The allegedly (but not actually, as discussed here) contemptuous actions of General Baker occurred on October 31, and the contempt hearing itself (where General Baker was not allowed to defend himself) occurred on November 1. The motion to release the audio is not yet available on the commissions website, but Rosenberg has a copy and posted it here. It states, in part:

It is the Prosecution’s recollection that, on 31 October 2017, during the course of Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and audibly laughed in a contemptuous manner in response to the clear orders given by the Commission to rescind his release of defense counsel. This behavior, coupled with failure to approach the podium when addressing the court and his refusal to take the witness stand when called by the Commission, was consistent with his general deportment of defiance and disrespect before the Commission throughout the proceedings.

Mot. at 3.

Scoffing and laughing are obviously not contempt. Neither are defiance and disrespect. Rather, 10 U.S.C. § 950t(31) gives a military commission power to punish for contempt only:

any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.

The statute is perfectly clear; contempt requires using a menacing word, sign, or gesture or disturbing by riot or disorder. But even if the statute isn’t clear, the doctrine of expressio unius est exclusio alterius (to express or include one thing implies the exclusion of the other) applies. Congress listed certain things as constituting contempt, and they don’t include scoffing, laughing, defiance, disrespect, making funny faces, farting, or anything else not listed.

The asserted basis for Colonel Spath’s contempt finding was that General Baker “has caused a significant disorder to the process, [by] violating the order to testify under oath.” Transcript at 10063 (link). Violating an order is also not on the list.

Violating an order is a basis for contempt at a court-martial, under Article 48. Congress, however, explicitly excluded the Guantanamo commissions from Article 48. Normally, courts will presume that wasn’t an accident.

Furthermore, for the order at issue for General Baker (an order to testify) there’s a totally separate statue applicable to civilians who refuse to testify: Article 47 of the UCMJ. Under 10 U.S.C § 949j(a)(2), a commission can subpoena witnesses to appear and testify. Under 10 U.S.C § 948b(d)(2), the UCMJ applies to commissions to the extent that the UCMJ says it applies to commissions. And under Article 47, a person not subject to the UCMJ who has been subpoenaed to testify before a military commission may be prosecuted in District Court for refusing to testify. But if refusing to testify is punishable as contempt, then Article 47 is mere surplusage.

Article 47 doesn’t apply to people subject to the UCMJ because they can just be ordered to testify and then prosecuted for disobeying that order. General Baker, for example, answers to someone; the President if nobody else. But he doesn’t answer to Colonel Spath, because “military judges do not have any inherent judicial authority.” Weiss v. United States, 510 U.S. 163, 175 (1994) (addressing courts-martial).

Ironically, the commissions prosecutors ask that the commission act quickly on the request so that “the audio may be released and made available no later than 19 January 2018.” Mot. at 1. But U.S. District Judge Royce Lamberth issued this order in the habeas proceedings requiring the Government respond to Baker’s supplemental brief by January 12, 2018.

Disobedience of an order of a District Court – unlike the order of a military commission – is grounds for contempt (under 18 U.S.C. § 401(3)).

13 Responses to “Commissions prosecutors say General Baker “scoffed and audibly laughed” (and they think that matters)”

  1. Jolly Roger says:

    Zach, this is a little half baked, but count me as unconvinced that your careful statutory analysis much matters.  Young v. US ex rel. Vuitton et Fils, 481 U.S. 787 (1987) says that a court’s power to punish through contempt violations of its orders is inherent.  The statute is there but it barely matters.  The rest of the quote from Weiss is important here:  military judges do not have inherent authority “separate from the court-martial to which they have been detailed.”  Certainly, General Baker does not answer to Colonel Spath day to day, but Judge Spath speaks as the military commission to which he is detailed, and so possess the commission’s inherent authority to punish for contempt.  Under Young, that includes the power to punish orders violations as contempt.
    The surplusage argument falls flat for me because Congress very commonly criminalizes separately conduct that could also be punished as contempt.  Many obstruction offenses would fit that definition, and compare 18 USC section 401(3) with section 3146.

  2. Zachary D Spilman says:

    Problem is, Jolly Roger, that Young involves Article III courts (which have inherent authority) while a military commission (like a court-martial) is an ad hoc court.

    That’s why your argument was rejected in 1988:

    During the legislative hearings on the Uniform Code, there was a comment that Article 48 provided for “substantially the same rule that” existed “in the Federal criminal courts.” Hearings on H.R. 2498 Before a Subcomm. of the House Armed Service Comm., 81st Cong., 1st Sess. 1060 (1949). Moreover, the Government now argues that a court-martial has inherent power to protect its proceedings against disruption and that this inherent power supplements authority conferred by the language of Article 48.

    We are reluctant to accept this argument. A court-martial is convened on an ad hoc basis, and its inherent authority is more questionable than that of a tribunal existing on a permanent basis. Secondly, even if a court-martial might otherwise have authority to punish for contempt, we believe Congress may limit this authority. In this connection, we attach some significance to the circumstance that, in drafting Article 48, Congress did not use the broader language that had been employed in the corresponding section of the Federal Criminal Code. Moreover, since under Article 48 military jurisdiction is extended to “any person” — not merely to servicemembers — the statutory languaage should not be expanded by this Court.

    United States v. Burnett, 27 M.J. 99, 104 (C.A.A.F. 1988). Congress expanded the contempt power after this decision but explicitly excluded the Guantanamo commissions from that expansion.

    Furthermore, while you’re right that Congress separately criminalizes conduct that could also be contempt (forget obstruction; try riot), Article 47 is a procedural enforcement mechanism that would be wholly subsumed by the contempt power in the exact circumstances of the Baker situation, with the single exception that Baker is subject to the UCMJ but there’s no basis to conclude that the contempt power applies differently to people subject to the code and not. 

  3. Peanut Gallery says:

    Why isn’t it disorder?  You really think Congress has to enumerate laughing/scoffing/pooping on the floor, vice disorder?  Where did you go to law school?  More importantly, why am I reading this?

  4. Zachary D Spilman says:

    Besides the fact, Peanut Gallery, that laughing and scoffing (which I suppose is different from guffawing and grimacing) isn’t why Spath held Baker in contempt, mere laughing and scoffing doesn’t disturb the proceedings.

    Unless you consider laughing and scoffing to be menacing (as in “any menacing word, sign, or gesture”). I doubt the Air Force judiciary is so humorless, but I’m a Marine and humor is our only emotion. 

  5. Tami a/k/a Princess Leia says:

    Wait, Marines have and/or show emotion Zach?  Wow.

  6. Vulture says:

    Pooping on the floor.  US v. Hasan.  But it wasn’t really poop and the judge got removed for leaving his neutral position.  You aren’t helping Spath’s case Peanut.

  7. Bill Cassara says:

    I have seen people held in contempt in civilian courts for “scoffing and laughing” on several occasions. 

  8. DCGoneGalt says:

    What if Gen Baker had just held up a piece of paper with the Superlative Laugh meme on it?
    This is how I picture the laugh:  Dinner With Schmucks

  9. Zachary D Spilman says:

    Sure Bill Cassara, but in the civil courts the definition of contempt is enormously more broad than it is in the commissions. 

    For the commissions, contempt specifically requires using any menacing word, sign, or gesture or disturbing the proceedings by any riot or disorder. 

    Scoffing and laughing aren’t menacing and don’t disturb. And Colonel Spath knew that, which is why he tied the contempt to General Baker “violating the order to testify under oath.” But that’s not a riot or disorder. So, either way, not contempt.

  10. stewie says:

    So ZS, is it truly your position, that if someone or a witness simply say there and loudly laughed throughout the entire proceedings, that it wouldn’t be contempt? That doesn’t qualify to you as “disturbing the proceedings” via “disorder?”
    I think what you mean to argue, or a charitable view of what you are arguing, is that a couple of chuckles or scoffs don’t rise to the level of a disorder. Scoffing and laughing can absolutely disturb, they can also fall below that level. I suspect the MJ was less concerned about the laughing then about violating the order so yes I agree that’s why he went that way.
    I think the reality is that higher courts will more or less treat the commissions like any other court wrt contempt, but whether or not refusal to testify equals contempt vice failure to follow an order (think for example a Soldier who is given immunity but still refuses an order to testify, you don’t handle that by contempt but by failure to follow a lawful order) is less likely to be the former.

  11. Zachary D Spilman says:

    is it truly your position, that if someone or a witness simply say there and loudly laughed throughout the entire proceedings, that it wouldn’t be contempt?

    No. That’s not the facts we’ve been discussing. There’s nothing in the prosecution request for the audio that suggests that Baker was loudly laughing throughout the entire proceedings (or even that it was loud at all; the court reporter certainly didn’t note it).

    Nevertheless, I’d expect someone who is being disruptive to be removed before the conduct became contemptuous. 

    reality is that higher courts will more or less treat the commissions like any other court wrt contempt

    I certainly hope not.

  12. stewie says:

    I was just going off your fairly definitive declaration…I don’t think there’s any grand harm to treating a commission like another court wrt contempt. Now, if I were a king, I’d close the commissions and send them all to federal court where every single case would be completed by now…but that’s another thread.

  13. Alfonso Decimo says:

    As an aside, I often made a point of noting non-verbal testimony for the record, and once (as defense counsel), I had a somewhat successful objection. In that case, the trial counsel rolled his eyes, sighed, and tossed a pencil in the air to demonstrate his incredulity towards the testimony of my witness. I objected and during the 39a, I asked for the prosecutor to be removed for testifying since he cannot both serve as prosecutor and witness. The motion was denied, but the MJ did caution the TC and gave a curative instruction to the members. Still somewhat unsatisfied, I chimed in with a verbal description of the conduct, asking for the record to reflect it. The MJ and TC brooded momentarily (since I essentially already did) and the MJ granted the motion, probably to just move forward with the trial. Later in life, as MJ, I sometimes slowed the trial to note non-verbal conduct for the record. In the case of General Baker, that would obviated the necessity for replaying the audio of the General’s scoff and laugh.