In a decision issued today and available here, Judge Lamberth grants Marine Corps Brigadier General John Baker a writ of habeas corpus and vacates the contempt finding made by military commissions judge Air Force Colonel Vance Spath.

Our (somewhat extensive) prior coverage is available here.

Judge Lamberth concludes:

Judge Spath summarily convicted General Baker of criminal contempt and sentenced him for that criminal contempt. Contempt is an offense under Chapter 47A. But Judge Spath’s actions were unlawful because only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A. And a military judge is not a member of a military commission nor is he “the military commission” within the meaning of that chapter. For this reason the Court will GRANT General Baker’s Petition, issue the writ he requests, and vacate his conviction.

Op. at 27. This conclusion turns on an important difference between the contempt power of a courts-martial and that of a commission. Article 48, 10 U.S.C. § 848, (the court-martial power) begins:

A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt. . .

While 10 U.S.C. § 950t(31) (the commission power) begins:

A military commission under this chapter may punish for contempt. . .

6 Responses to “Judge Lamberth reverses BGen Baker’s contempt”

  1. Charlie Gittins says:

    Stand by for a change to the contempt rules for Military Commissions.  If we have learned anything in the last 50 years (30 of which I have been practicing), no D favorable ruling in Mil Jus goes unpunished without a change to the rules to eliminate the “loophole.”

  2. Lone Bear says:

    The court really can’t function if the Judge doesn’t have contempt power, a change in the rules is probably warranted.  It could end up backfiring on the G though, wait until they won’t provide discovery or other intentional disregard of a Judge’s order.

  3. Former AFCapt says:

    +1 to Lone Bear.  Of course, the presumption there is that commissions can really function.  That is a dubious proposition for any significant, contested case.

  4. Alfonso Decimo says:

    One of the best lessons I learned at the Military Judge Course in Charlottesville are the limits of a judge’s authority. In fact, every government employee should understand the limits of the authority of the positions he/she fills or advises and avoid acting ultra vires. I disagree with the others on this blog and I predict there will be no change to the Military Commission contempt rules. Military Justice already has too many loose cannons rolling across the decks, firing willy-nilly.

  5. Advocaat says:

    Why aren’t there more habeas petitions from military clients or perhaps even Military Habeas Units (like Capital Habeas Units in the federal system but focused on all offenses)?  It seems like a lone Joint Habeas Assistance Unit would be a cost-effective way to develop this expertise and provide an additional check on the government.  Short of that, it would be terrific to see a law school help vets with this type of clinic.  If that’s already happening, please share.

  6. Bismarck says:

    Advocaat – Great idea.  The challenges as I see them are (1) most members eligible for a Habeas Petition in the civilian federal system no longer enjoy the right to free Article 70 counsel; and (2) although the plurality of members eligible for a Habeas Petition are likely in Kansas, they are spread throughout different jurisdictions, therefore making it problematic for a law school clinic devoted to this.