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