This Week at the Military Commissions, 11/1: Contempt Hearing Proceeds

Picking up where the commission left off Tuesday, military judge Col. Vance Spath called the court to order for contempt proceedings. Present as ordered were Marine Corps Brig. Gen. John Baker, chief defense counsel of the military commissions; Phil Sundel, acting general counsel for the Military Commissions Defense Organization; and al-Nashiri’s appointed judge advocate general, Navy Lt. Alaric Piette. The session was conducted pursuant to 10 U.S.C. § 950t(31) as a summary proceeding, in accordance with Rules 809(b)(1) and 809(c) of the Rules for Military Commissions.

The judge began the session by repeating the relevant findings of fact entered into the record the day before, specifically that Gen. Baker unilaterally and without proper authority excused al-Nashiri’s civilian attorneys—learned death-penalty counsel Richard Kammen, Mary Spears, and Rosa Eliades—and then refused to testify in court to explain the basis for that action. Spath added that he had ruled on two occasions that Baker had no such authority to release defense counsel without the permission of the commission or a higher court. The judge stated that Baker’s actions flew “in the face of commonsense judicial review, … every states’ bar rules, court precedent and two orders of the commission.” The chief defense counsel objected to the proceedings, asserting that the court did not have personal jurisdiction over him.Baker stated for the record that he was being denied the opportunity to be heard. Spath directed Baker to sit down and suggested that he read § 950t(31) with regard to the commission’s jurisdiction. The judge stated that Baker was not entitled to be heard in a summary proceeding in accordance with Rule 809.

Spath then acknowledged that a habeas petition had been filed with the District Court for the District of Columbia seeking a preliminary injunction to halt the commission proceedings pending resolution of issues related to potential intrusion in attorney-client communications at Guantánamo and the withdrawal of learned counsel Kammen. Contrasting himself with Gen. Baker, Spath said he would follow any orders he received from higher courts, including a stay order. In the meantime, he intended to press on.

Calling the need for a contempt hearing “an affront to the process of justice,” the judge stated his view that Baker’s assertion of blanket privilege under Military Commissions Rule of Evidence 501(b)(1) to avoid testifying was “specious” and unsupported by authority. Spath stressed that the judge, not counsel, is the arbiter of whether something is privileged. He further asserted that even when a privilege exists, the judge has the discretion to pierce it for good cause. Additionally, Baker had no authority to unilaterally excuse the civilian attorneys because the rules governing appointment of counsel “require [that] representation continue in any case when a tribunal orders continued representation, even if good cause has been shown on the record.” Until such time as the objecting party, in this case the defense, files a writ or habeas action and a superior court steps in, the trial judge’s rulings are binding on the parties. Consequently, Baker’s adherence to contrary interpretations of the governing rules was a flagrant usurpation of the judge’s authority.

Spath then listed the chief defense counsel’s contemptuous actions, which took place Oct. 31 “in open court and in front of the commission”: (1) Baker willfully refused to obey the commission’s order to testify; and (2) Baker willfully refused to obey the commission’s order to rescind his excusal of al-Nashiri’s civilian counsel. The chief defense counsel also refused to communicate Spath’s rulings to the civilian attorneys and arrange for their return to Guantánamo. As Baker conveyed this disobedience via email and not in person in front of the judge, the conduct could not be adjudicated in a summary proceeding. The judge found beyond a reasonable doubt that Baker’s conduct amounted to a “disorder” under § 950t(31), and therefore fell within the scope of contemptuous activity under both the Manual for Courts-Martial and the Military Commissions Act. Spath held Baker in contempt and sentenced the chief defense counsel to pay a $1000 fine and to be confined to on-base quarters, with telephone and internet access, for 21 days.

The judge next reiterated that Kammen, Spears, and Eliades remain counselors of record and must attend all commission sessions unless excused by the commission or a superior court. He announced that he would be issuing an order to the civilian attorneys to present themselves either via teleconference from Virginia or in person Nov. 6 to argue why they should be released from the representation of al-Nashiri.

Moving on to the parties present, Spath admonished Sundel for referring to him as “Colonel” throughout the Oct. 31 proceedings, instead of using proper honorifics such as “Your Honor” or “Judge,” and appearing before the commission without filing a request to do so. Despite this “disappointing, concerning conduct,” the judge did not find the acting general counsel, who sat down when ordered, in contempt. Finally, turning to Lt. Piette, Spath recognized that the judge advocate general had followed orders and submitted a filing the previous afternoon, but expressed concern that Piette’s chosen course of action was to remain a passive participant in all further proceedings until Kammen or another capital learned counsel could join the defense team. The pretrial activities with which Spath intended to proceed as scheduled were unrelated to capital sentencing or other issues. Piette was therefore fully qualified to act on his client’s behalf, though the commission could only force him to be present.

Finally, the judge laid out the planned schedule for the remainder of the session (subject to change if a stay is imposed). On Nov. 3, the commission will take up witness testimony related to Appellate Exhibit 327E. On Nov. 6 and subsequent days, it will deal with classified matters related to al-Darbi, additional 327E witnesses, cross-examination of al-Darbi, and preadmission of real evidence from the USS Cole. In the January session, again subject to change, the parties will continue to move through preadmission matters the government has raised, as well as take testimony of four CIA witnesses.

Returning to Gen. Baker, Spath informed him that the contempt finding and the sentence imposed remained subject to the approval or disapproval of the military commissions convening authority. However, the ordered confinement would nevertheless begin immediately. The judge instructed the bailiff to escort Gen. Baker to his confinement location, and then brought the commission to recess until Friday, Nov. 3 at 9:00 am