When we last looked at the 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) – the #6 Military Justice Story of 2017 – it was to consider a renewed request for habeas and a motion by commissions prosecutors to obtain the audio recording of the related commission hearings.
While the DOJ’s response leads with arguments that the habeas petition is now moot and that Baker failed to exhaust administrative remedies, both of these new briefs give real attention to what I believe is the most important issue in this case: whether Baker’s conduct actually constitutes contempt as the term applies to the Guantanamo commissions. As I discussed here and here, the contempt power of the Guantanamo commissions was narrowly defined by Congress and Baker’s conduct does not clearly (or even remotely, I think) meet that definition.
The DOJ’s brief, however, significantly misinterprets the hierarchy of rules in the military justice system and thereby reaches the opposite conclusion.
The commissions contempt power is established in 10 U.S.C. § 950t(31) and 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 court-martial contempt power established in Article 48, by contrast, includes the power to punish any person who “willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial. . . ” This expanded power was created in 2011; five years after Congress deliberately separated the commissions contempt powers from the courts-martial contempt power.
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 a possible death sentence.
Al-Nashiri’s defense team included civilians with experience defending capital cases. But on October 11 Baker approved a request from those civilians to withdraw from the case. Colonel Spath (the military judge) disagreed that Baker had the authority to do that, ordered Baker to withdraw the approval, and ordered Baker to testify about the facts surrounding the approval. Baker refused both orders and so Spath held him in contempt.
Baker’s refusal might be punishable as a contempt at a court-martial (as the violation of an order), but it’s pretty clearly not contempt as the term applies to the Guantanamo commissions because Baker’s conduct was not a “menacing word, sign, or gesture” and his conduct did not disturb the proceedings by “riot or disorder.” By all accounts, in fact, the whole thing was surreally orderly.
Nevertheless, Colonel Spath’s contempt finding included the following determinations:
So I find, beyond a reasonable doubt, that on 31 October 2017 you willfully refused to obey the commission’s order to rescind your excusal and that that behavior was contemptuous to the commission and it was in front of the commission.
Your refusal to testify on multiple occasions in my presence is also contemptuous and contemplated both by the Manual for Courts-Martial and the Military Commissions Act as an act of contempt and a disorder.
I find beyond a reasonable doubt that your acts then constituted disorders that disturbed these proceedings, disorders that disturbed these proceedings significantly.
I would note that your approval of the withdrawal of counsel, General Baker, has been determined to be an act outside of your authority by this court, and as of yet no superior court has disturbed that.
Transcript at 10063-10064. That’s pretty inadequate on its face. Colonel Spath can use the word contempt all he wants, but that doesn’t change what it means.
Unfortunately, Baker’s initial petition buried the central question of whether or not his conduct amounts to contempt under hand-wringing over personal jurisdiction, summary proceedings, and whether military commissions judges can make contempt findings alone. But Baker’s supplemental petition focused on how his conduct doesn’t meet the definition of contempt.
In response, the DOJ scrambles:
The MCA permits a military commission to “punish for contempt any person who . . . disturbs its proceedings by any riot or disorder.” 10 U.S.C. § 950t(31). That is precisely what BGen Baker did. By repeatedly refusing to comply with Judge Spath’s orders to take the witness stand and to rescind his purported excusal of Al-Nashiri’s three civilian attorneys, BGen Baker not only disturbed the October 31, 2017 military commission proceedings, he created a disorder with lasting effects on the commission’s trial of Al-Nashiri. See Tr. at 10063 (explaining that Gen. had “caused a significant disorder to the process”). In the wake of BGen Baker’s refusal to rescind his order excusing the civilian attorneys, including Al-Nashiri’s learned counsel, all of the witnesses for the commission’s November hearing had to be rescheduled. Wells Decl. ¶ 44. The consequences of BGen Baker’s contumacious conduct are therefore more disruptive to the commission than a “riot” or other courtroom incident that might “disturb” the commission’s proceedings only temporarily. See 10 U.S.C. § 950t(31). In Judge Spath’s words, the result has been “disorder and havoc.” Wells Decl. ¶ 44.
Response at 39-40 (emphasis added). There are some obvious flaws in this argument. First, if Baker really did exceed his own authority when he excused the civilians (and Spath’s contempt finding is entirely dependent on the excusal being invalid), then the civilians are the ones disrupting the proceedings, not Baker. Put differently, if Baker’s order was invalid, there was nothing for him to rescind (or to refuse to rescind). The civilians might as well have been excused by their cats. Second, the follow-on effects (like rescheduling witnesses) were the product of the civilians not appearing, not of Baker’s refusal to rescind his (invalid) excusal or Baker’s refusal to testify.
If Baker had the independent power to excuse the civilians, then Spath couldn’t order him to rescind that excusal. Alternatively, if Baker lacked the independent power to excuse the civilians, then his excusal was a nullity and there was nothing for Spath to order him to rescind. Either way, any disturbance was caused by the absence of the civilians (lawfully or otherwise), not by Baker’s conduct.
Perhaps realizing this, the DOJ also argues that Spath has the power to punish violations of his orders that do not amount to a disturbance. Addressing the fact that a court-martial has explicit authority to punish violation of an order as contempt, while a Guantanamo commission explicitly lacks that authority, the DOJ suggests that Congress gave the power to a court-martial but not to the Guantanamo commissions because of a discussion section in the Manual for Courts-Martial:
The better explanation for the change, however, stems from the guidance that had been issued in the Rules for Courts-Martial, but which had not been issued in the Rules for Military Commissions. Specifically, the non-binding discussion accompanying Rule 809 in the courts-martial context provided that:
The military judge may issue orders when appropriate to ensure the orderly progress of the trial. Violation of such orders is not punishable under Article 48, but may be prosecuted as a violation of Article 90 or 92. See also Article 98.
Refusal to appear or to testify is not punishable under Article 48. Persons not subject to military law having been duly subpoenaed, may be prosecuted in Federal civilian court under Article 47 for neglect or refusal to appear or refusal to qualify as a witness or to testify or to produce evidence. Persons subject to the code may be punished under Article 134 for such offenses.
Discussion, R.C.M. 809(a) (2008) (emphasis added).
In other words, the R.C.M. had instructed military judges not to use their contempt power to punish failures to comply with the court-martial’s orders, but rather to use the other powers made available by the UCMJ to prosecute noncompliance. No similar restrictions on the contempt power existed (or now exist) in the R.M.C., and the MCA does not provide the kinds of alternative means for ensuring compliance found in the UCMJ. Accordingly, if Congress wanted to ensure that military judges in both courts-martial and military commissions could punish attorneys for disobeying court orders that disrupted the orderly progress of a trial, it needed to change only the text of the UCMJ. That is what it did.
Response at 43. This significantly misinterprets the hierarchy of rules in the military justice system.
The hierarchy of rule-making authority in the military justice system starts with Congress at the top (under Article 1, Section 8, Clause 14 of the Constitution), then comes the President (under Article 36, 10 U.S.C. § 836), then comes the Judge Advocates General and their designees including military judges (under R.C.M. 108 & 109), and then come the anonymous authors of the discussion sections in the Manual for Courts-Martial. Accordingly (and explicitly in each grant of authority), rules at each level must be consistent with those above them. The MCM must be consistent with the UCMJ, rules promulgated by JAGs and military judges must be consistent with the MCM, and so on.
The DOJ’s argument is that Article 48 always allowed a court-martial to punish mere orders violations as contempt (before Congress amended it to actually say that), but the President promulgated contrary regulations in the form of a non-binding discussion section in the MCM. That’s triply wrong because the discussion section is mere commentary, not regulations; the President can’t contradict the Code in any event; and the discussion didn’t restrict the contempt power (which the President probably could do, regardless of what the statute says) but rather merely interpreted what the statute said. As such, the DOJ has put itself in the radical position of arguing against the President’s (or at least the Department of Defense’s) interpretation of the UCMJ.
Baker’s reply brief emphasizes the point:
Respondents incorrectly assert that “the R.C.M. had instructed judges not to use their contempt power to punish failures to comply with the court-martial’s orders, but rather to use the other powers made available by the UCMJ to prosecute non-compliance.” Opp. at 43. This is incorrect. The provision did not tell military judges not to use their contempt power in that situation; rather, it told them they had no contempt power in that situation. That absence of contempt power was well-understood. See, e.g., S. Rep. No. 111-201, at 132-33 (2010); see also Petitioner’s Supplemental Brief at 21-22 (citing authority going back to 1886 establishing the lack of contempt authority for refusing to obey a military judge’s order). In the Guantanamo military commissions, even after 2011, judges, like military judges in courts-martial and other military commissions prior to 2011, have no power to invoke contempt for failure to obey an order and instead must pursue other remedies for such conduct. See, e.g., Petitioner’s Suppl. Br. at 22-23 (describing other remedies available to punish a military member’s refusal to testify,
such as a charge and trial by court-martial).
In sum, “disorder,” used in § 950t(31) in conjunction with “riot,” must mean the type of conduct that is tumultuous, contentious, or turbulent or threatens violence. It cannot mean disobeying an order, something that Congress chose not to include in the definition of § 950t(31) contempt.
Reply at 10-11 (emphases in original).
There are compelling reasons for Judge Lamberth to address this issue. Under the DOJ’s view, a judge on the Guantanamo commissions has an expansive, worldwide, practically-unreviewable contempt power. Such a power is inherent in the civil courts but not in ad hoc commissions established by military commanders under narrow authority from Congress. Furthermore, there are strong Constitutional and policy rationales for Congress limiting the contempt power of a Guantanamo commission; least of all the potential that a commission judge might hold a high-ranking military attorney in contempt and order him confined over a good faith professional disagreement. The DOJ, however, seeks to bypass multiple deliberate actions of Congress in this regard, seemingly just to win this case.
Furthermore, two of the civilians who were ostensibly excused by General Baker are now refusing to return to the Guantanamo commissions. Miami Herald reporter Carol Rosenberg writes:
Two civilian, Pentagon-paid attorneys who quit the USS Cole case over an ethical conflict again defied a judge’s order to appear on Friday in his court, despite a subpoena.
It was the third time that civilians Rosa Eliades and Mary Spears refused to show up either at the war court compound called Camp Justice, or alternatively at Military Commissions headquarters inside a building called the Mark Center in Alexandria, Virginia.
The report adds:
[Spath] displayed annoyance at their absence, but none of the urgency of the last session when he swiftly summarily convicted the general in charge of defense teams of contempt of the war court and ordered him confined to his quarters — for not returning the women and a third attorney to the case.
On Friday, the judge instructed case prosecutors “to work to have their attendance secured at either the February or March session.” He wants them to appear in court “so they can explain to me why they believe they cannot represent their client,” he said.
General Baker was invited to give the exact same kind of explanation, and look what happened to him.
Another report by Carol Rosenberg addresses the plight of al-Nashiri’s remaining military counsel:
The judge, Air Force Col. Vance Spath, repeatedly rejected an argument by the lone defense lawyer, former Navy SEAL Lt. Alaric Piette, that the hearings should cease until an experienced capital defense attorney reaches court.
At one point, the judge scolded Piette for mounting no defense in a pretrial hearing and urged the 2012 Georgetown Law graduate to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Piette has never worked on a capital defense before and does not meet the American Bar Association standard for death-penalty defense counsel, an argument the judge rejects.
Was that an order for Piette to self-train? Will he be in contempt if doesn’t comply (or doesn’t learn enough, fast enough)?
Without clarity on the meaning of contempt and the authority of military judges assigned to the Guantanamo commissions, it’s hard to imagine why anyone (attorney or witness) would willingly participate.