CAAFlog » Court-Martial News » BGen Baker

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.

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)

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).