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Last month, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was found in contempt by Air Force Colonel Vance Spath, who is the chief judge of the Air Force and a judge on the military commissions. Spath punished Baker with 21 days confinement and a $1,000 fine. Baker served three days of that confinement in quarters before the commissions convening authority deferred the rest, and then ultimately disapproved both the confinement and the fine.

The basis of the contempt finding was General Baker’s refusal to appear as a witness to answer questions by Spath about the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole). I analyzed the finding in this post, and concluded that Baker’s conduct does not constitute contempt as the term is defined by Congress in 10 U.S.C. § 950t(31) (the commissions contempt power).

After the contempt finding, and while still confined to quarters, General Baker filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. I analyzed the petition in this post and concluded that it was a loser. Judge Royce C. Lamberth heard oral argument on the petition and deferred ruling (after the convening authority deferred the confinement and Baker was released).

Last Friday, General Baker filed a supplemental brief. A copy is available here.

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In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.

The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.

The convening authority also announced his intent to refer the matter for an ethics review.

The full text of the release is after the jump.

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Devin Patrick Kelley – identified as the shooter who killed 26 people and wounded many others yesterday in a South Texas church – was reportedly a former member of the Air Force who was convicted by a court-martial in 2012. This AP report, for example, states:

Kelley received a bad conduct discharge from the Air Force for assaulting his spouse and child, and was sentenced to 12 months’ confinement after a 2012 court-martial. Kelley served in Logistics Readiness at Holloman Air Force Base in New Mexico from 2010 until his 2014 discharge, Air Force spokeswoman Ann Stefanek said.

From this information I found the Air Force CCA’s opinion in United States v. Kelley, No. 38267, 2013 CCA LEXIS 1100 (A.F. Ct. Crim. App. Dec. 3, 2013) (link to slip op.), rev. denied, 73 M.J. 257 (C.A.A.F. 2014). The opinion is not on the CCA’s website, but it is a summary disposition affirming the findings of a general court-martial and a sentence of confinement for 12 months, reduction to E-1, and a bad-conduct discharge.

That doesn’t tell us the precise offenses of which Kelley was convicted, but it strongly suggests that Kelley was convicted of an offense for which the maximum authorized punishment exceeds confinement for one year.

Accordingly, 18 U.S.C. § 922 prohibits Kelley from possessing practically any firearm:

(g) It shall be unlawful for any person–

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, according to this Washington Post story:

Officials described the shooter’s weapon as a Ruger AR-556, an assault-style rifle similar to those used by the military. CNN, citing a law enforcement individual, reported that Kelley purchased the weapon in April 2016 from an Academy Sports & Outdoors store in San Antonio.

(emphasis added).

Update 1 (1135 eastern):
Some media outlets report that Kelley’s court-martial convictions related to domestic violence (this local news report quotes an Air Force spokeswoman as saying he was convicted of domestic violence in 2012 at Holloman AFB in Alamogordo, New Mexico).

If so, then in addition to the prohibition in 18 U.S.C. § 922(g)(1) discussed above, he was alternatively prohibited from possessing a firearm by 18 U.S.C. § 922(g)(9), commonly known as the Lautenberg Amendment, which applies to anyone:

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

Update 2 (1354 eastern): Thanks to our reader for a link to the opinion now available on the CCA’s website (I’m certain it was not there this morning).

Update 3 (1400 eastern): While the adjudged sentence tracks the maximum at a special court-martial, CBS news reports here that “the Air Force tells CBS News Kelley’s case was a general court martial. . .”

Update 4 (1612 eastern): The New York Times reports here:

“He assaulted his stepson severely enough that he fractured his skill, and he also assaulted his wife, said Don Christensen, a retired colonel who was the chief prosecutor for the Air Force. “He pled to intentionally doing it.”

He was sentenced in November of that year to 10 months’ confinement and reduction to the lowest possible rank. After his confinement, he was discharged from the military with a bad conduct discharge. It is unclear whether his conviction would have barred him from purchasing a gun.

(emphasis added). We, of course, know that the last sentence is wrong.

Here is a link to a notice filed by the Government in Baker v. Spath, et al., informing the court that:

Shortly before 1 p.m. on November 3, 2017, the Convening Authority sua sponte deferred the remaining term of Petitioner’s sentence of confinement pending final action by the Convening Authority on the contempt findings. See Rule For Military Commission 1101(c). The deferral is effective immediately and notice of the Convening Authority’s decision has been served on Petitioner.

A military judge has found that Bowe Bergdahl should serve no prison time for endangering his comrades by walking off his Afghanistan post.

The judge also gave Bergdahl a dishonorable discharge, reduced his rank to private and said he must forfeit pay equal to $1,000 per month for 10 months. The judge made no other comments.

It’s not well-reported elsewhere, but Sergeant Bergdahl’s pleas of guilty to 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, included exceptions and substitutions limiting his desertion to only a single day.

An Army press release available here explained that:

Sgt. Bergdahl entered pleas of guilty to both charges, but indicated his period of desertion was for only one day. Following the entry of pleas, the government introduced evidence in support of the position that the period of desertion was for the entire period of Sgt. Bergdahl’s captivity. The military judge found Sgt. Bergdahl guilty of both charges with a one day period of desertion. The military judge also denied a defense motion to dismiss one of the charges as excessive, but announced he would combine both charges for sentencing purposes.

Earlier today I noted that BGen Baker filed a petition for a writ of habeas corpus seeking release from confinement to quarters after being found in contempt by military commission judge Colonel Spath in connection with a dispute over the release of civilian attorneys representing Abd al Rahim al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

As I wrote in this post, BGen Baker’s actions do not meet the statutory definition of contempt applicable to military commissions.

Since then I’ve had a chance to read the brief filed on Baker’s behalf in support of the habeas petition and – while I still believe that Baker’s conduct is not contempt – I think the petition is a loser.

Here’s why.

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A reader provided this link to a draft transcript of yesterday’s contempt proceedings in the al Nashiri military commission at Guantanamo, during which Air Force Military Judge Colonel Vance Spath found Marine Corps Brigadier General John Baker in contempt. A draft transcript of the proceedings that precipitated the contempt proceedings is available here.

General Baker has since petitioned for a writ of habeas corpus.

Having reviewed both transcripts, the applicable Rule for Military Commissions 809 (which is substantially identical to Rule for Courts-Martial 809), and the underlying statute 10 U.S.C. § 950t(31) (which is significantly different from Article 48, 10 U.S.C. § 848), I am pretty confident of two things:

First, what General Baker did is not contempt within the meaning of the statute.

Second, I warned about this.

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Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – who yesterday was found in contempt by Air Force Military Judge Colonel Vance Spath and ordered confined to quarters, has filed this petition for a writ of habeas corpus, and this request for emergency expedited consideration, in U.S. District Court for the District of Columbia.

Update (1820 eastern):

The petition was heard this afternoon and PACER has the following entry:

11/02/2017 Minute Entry for proceedings held before Judge Royce C. Lamberth: Miscellaneous Hearing held on 11/2/2017 in re PETITION for Writ of Habeas Corpus. Oral arguments heard and the matter has been submitted. Miscellaneous Hearing continued to 11/3/2017 at 02:00 PM in Courtroom 15 before Judge Royce C. Lamberth. (Court Reporter Janice Dickman) (nbn) (Entered: 11/02/2017)

The Associated Press reports here that:

A military judge on Thursday began deliberating the punishment for Army Sgt. Bowe Bergdahl after defense attorneys asked for no prison time while prosecutors sought more than a decade behind bars.

Army Col. Jeffery Nance said he planned to spend the afternoon considering evidence and would open court again Friday morning to continue deliberating then. It wasn’t clear when he would deliver the sentence.

Bergdahl faces up to life in prison after pleading guilty to desertion and misbehavior before the enemy for walking off his remote post in Afghanistan in 2009. In closing arguments, prosecutors asked for a sentence of 14 years in prison, citing serious wounds to service members who looked for Bergdahl.

“Sgt. Bergdahl does not have a monopoly on suffering as a result of his choices,” said Maj. Justin Oshana, a prosecutor. Contrasting Bergdahl to the wounded searchers, he added, “The difference is all the suffering stems from his choice.”

But defense attorneys argued Bergdahl already suffered enough confinement during five years of brutal captivity by Taliban allies. They asked the judge to give their client a dishonorable discharge and no prison time. Their argument for leniency also cited harsh campaign-trail criticism by Donald Trump and Bergdahl’s mental disorders.

Any discharge as a result of a general court-martial will permanently deprive Sergeant Bergdahl of benefits administered by the Department of Veterans Affairs as a matter of law.

Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered into confinement today by Air Force Military Judge Colonel Vance Spath, who found the General in contempt for in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

Carol Rosenberg of the Miami Herald reports here that:

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

. . .

In court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.

“There are things I want to say, and you are not allowing me to say them,” Baker told the judge.

Spath replied, “This is not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”

. . .

The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review his contempt finding and sentence. Meantime, however, he ordered court bailiffs to arrange for the general to be confined to his quarters — a room in a trailer at Camp Justice, behind the courtroom — until Rishikof acted or found a different place.

Rishikof had approved the site provisionally, Spath said, and was permitting Baker to have internet and phone communications at his quarters.

Additional details about the release of the three civilian attorneys is available in this report (also from Miani Herald reporter Carol Rosenberg).

Various news outlets are reporting on a ruling by Army military judge Colonel Nance that the President’s comments about the Bergdahl case neither constitute unlawful command influence nor create the appearance of unlawful command influence.

For example, the Associated Press reports here that:

President Donald Trump’s scathing criticism of Army Sgt. Bowe Bergdahl won’t prevent the soldier from receiving a fair sentence for endangering comrades by walking off his post in Afghanistan in 2009, a judge ruled Monday.

The judge, Army Col. Jeffery Nance, said the court has not been directly affected by Trump’s remarks, nor would the comments cause a reasonable member of the public to have doubts about the fairness of the military justice system. He had to consider both questions in deciding on whether actual or apparent unlawful command influence was interfering in the case.

“I am completely unaffected by any opinions President Trump may have about Sgt. Bergdahl,” the judge said. He added that prosecutors had convinced him that the Trump comments won’t put “an intolerable strain” on the public perception of military courts.

Bergdahl’s defense counsel sought dismissal of all charges (after Bergdahl pleaded guilty) because the President made a brief reference to the case during a press conference.

Thanks to our reader for the tip.

Having pleaded guilty last week without the benefit of a pretrial agreement, Sergeant Bergdahl was scheduled to be sentenced by a general court-martial composed of a military judge alone today. But the sentencing is continued until Wednesday as the military judge – Army Colonel Jeffrey Nance – considers a last-minute defense motion to dismiss. The Associated press reports here that:

The judge deciding Army Sgt. Bowe Bergdahl’s punishment said Monday he is concerned that President Donald Trump’s comments about the case could impact the public’s perception of the military justice system.

Sentencing was set to begin Monday for Bergdahl on charges that he endangered comrades by walking off his post in Afghanistan in 2009. But the judge, Army Col. Jeffery R. Nance, instead heard last-minute arguments by defense attorneys that recent comments by Trump are preventing a fair proceeding. Bergdahl faces a maximum sentence of life in prison.

Nance allowed the attorneys to question him about whether he was swayed by Trump’s comments. Nance said he wasn’t aware of the comments beyond what was in the legal motions. Nance said he plans to retire as a colonel in about a year and isn’t motivated by pleasing commanders to win a future promotion.

“I don’t have any doubt whatsoever that I can be fair and impartial in the sentencing in this matter,” Nance said.

The AP report also notes that “sentencing was set to resume Wednesday because a defense attorney wasn’t available Tuesday, the judge said.”

Colonel Nance’s confidence that he can be fair and impartial, the objective evidence supporting that conclusion (including his record and his impending retirement), Bergdahl’s guilty pleas, and the enormous publicity surrounding this case, provide plenty of reasons to reject the defense motion to dismiss that is based on the President’s recent brief reference to his prior comments in the case.

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THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

October 20, 2017

*Statement Regarding Military Justice*

**

Military justice is essential to good order and discipline, which is indispensable to maintaining our armed forces as the best in the world. Each military justice case must be resolved on its own facts. The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations. There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than those resulting from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law by officials exercising their independent judgment.

###

Source.

Thanks to our reader for the tip.

Four years ago an Air Force lieutenant colonel who was the chief of the service’s Sexual Assault Prevention and Response office was accused of sexual assault. The NBC story we referenced in this post isn’t on the web anymore, but here’s a report from another source about the accusation.

The sexual assault charges were eventually dropped, and other charges ended with an acquittal, but the meme economy made the case infamous (link is to YouTube video that’s still plenty relevant).

Today, Craig Whitlock of the Washington Post reports here (backup here) that:

The Army is grappling with a resurgence of cases in which troops responsible for preventing sexual assault have been accused of rape and related crimes, undercutting the Pentagon’s claims that it is making progress against sexual violence in the ranks.

In the most recent case, an Army prosecutor in charge of sexual assault investigations in the Southwest was charged by the military last month with putting a knife to the throat of a lawyer he had been dating and raping her on two occasions, according to documents obtained by The Washington Post.

Additionally, a soldier at Fort Sill, Okla., who was certified as a sexual-assault-prevention officer was convicted at a court-martial in May of five counts of raping a preteen girl.

Army officials confirmed to The Post that eight other soldiers and civilians trained to deter sex offenses or help victims have been investigated over the past year in connection with sexual assault. The Army would not provide details, saying that many of the investigations are pending.