Top Ten Military Justice Stories of 2018 – #8: Brigadier General Baker wins a writ of habeas corpus and reversal of his contempt finding
In November 2017, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered confined to his quarters for 21 days by Air Force Military Judge Colonel Vance Spath, who found Baker in contempt 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).
The contempt finding was dubious and Baker promptly filed a petition for a writ of habeas corpus in U.S. District Court for the District of Columbia. The day after the petition was filed (and two days after Baker was confined), the convening authority deferred the remainder of the confinement, resulting in Baker’s immediate release. A few weeks later the contempt finding was approved but the punishment (consisting of the confinement and a $1,000 fine) was disapproved outright.
In 2018 General Baker won reversal of the contempt finding entirely. That reversal is the #8 Military Justice Story of 2018.
District Judge Royce C. Lamberth concluded that a military judge detailed to a military commission under the Military Commissions Act (10 U.S.C. Ch. 47A) may not unilaterally punish contempt. Rather, “only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A,” including contempt. Baker v. Spath, __ F. Supp. 3d __, __, 2018 U.S. Dist. LEXIS 101622, *41 (D.D.C. Jun. 18, 2018) (discussed here). Accordingly:
Judge Spath acted unlawfully when he unilaterally convicted General Baker of criminal contempt and sentenced him for that contempt. He usurped a power that belongs solely to the members of the commission, voting as a body. For that reason, Judge Spath’s contempt findings must be vacated and the Court will grant General Baker’s Petition.
Id. at __, 2018 U.S. Dist. LEXIS 101622, *40-41.