This Week at the Military Commissions, 11/7: A Habeas Petition in Response to Contempt Proceedings

As discussed in the last post in this series, on Wednesday, military judge Col. Vance Spath held Marine Corps Brig. Gen. John Baker, chief defense counsel of the military commissions, in contempt of court. He sentenced Baker to pay a $1000 fine and to be confined to quarters at Guantánamo Bay naval base for 21 days. Spath, who is presiding over the trial of alleged USS Cole bomber Abd al-Rahim al-Nashiri, sanctioned Baker for (1) willfully refusing to obey the commission’s order to testify and (2) willfully refusing to obey the commission’s order to rescind the excusal of al-Nashiri’s civilian attorneys, namely learned death penalty counsel Rick Kammen and colleagues Rosa Eliades and Mary Spears. The judge determined in summary proceedings, at which Baker was not allowed to be heard, that the chief defense counsel’s disobedience “constituted disorders that disturbed . . . [the] proceedings significantly” and could therefore be sanctioned pursuant to Rules 809(b)(1) and 809(c) of the Rules for Military Commissions (R.M.C.) and 10 U.S.C. § 950t(31). Baker’s confinement was effectuated immediately.

On Thursday, defense attorneys for Baker filed a petition for a writ of habeas corpus and a request for emergency expedited consideration with Judge Royce Lamberth in the U.S. District Court for the District of Columbia. The petition states that “Spath lacked the legal authority to hold General Baker in contempt or detain him . . . [and] violated General Baker’s due process rights by depriving him of his liberty without giving him any opportunity to be heard.” Specifically, Baker makes four allegations: (1) Spath deprived Baker of due process by expressly denying him the opportunity to be heard before finding him in contempt and depriving him of his liberty; (2) a judge in a commission case convened under the Military Commissions Act has no unilateral power to order confinement; (3) the military commission has no personal jurisdiction over Baker and (4) none of Baker’s acts were contemptuous.

In the petition, Baker maintains that as chief defense counsel, he personally possessed the legal authority to excuse the civilian attorneys, notwithstanding Spath’s conclusion that such authority lay exclusively with the commission. Furthermore, he asserts that he was within his right to assert privilege and refuse to testify about the excusal decision, in accordance with Military Commission Rule of Evidence 501(b). The petition then quotes from an email Baker sent to the trial judiciary staff the day before the contempt hearing expressing his view that a “military commissions judge [does not have] the authority to direct the Chief Defense Counsel to take a specific action with respect to those persons he supervises. The Chief Defense Counsel is not part of the enforcement mechanism for a judicial order or the witness production process.”

As to the first allegation—the deprivation of due process—Baker says that Spath failed to provide him with “advance notice of the purported acts of contempt he would consider at the November 1 hearing” and expressly refused to allow Baker to present potential defenses either in writing or in person. Summary contempt proceedings of this sort, particularly coming more than 24 hours after the purported contemptuous behavior took place, are historically “regarded with disfavor.” The conviction, the petition contends, represents a “striking departure from American judicial norms [made] starker still when it came in the context of a military commission and when it resulted in the deprivation of liberty of a United States citizen.”

Next, the chief defense counsel argues that his confinement violates a clear federal statute—the Military Commissions Act—which does not provide military judges like Spath with a general contempt power. Taken together, Baker asserts, 10 U.S.C. § 949(m) and a 2011 amendment to the Military Commissions Act deny “chapter 47A commission judges the power held by judges in courts-martial and in other military commission to hold people in contempt.” Spath’s holding, made erroneously on the basis of a purported grant of unilateral contempt power in R.M.C. 809 that is “plainly contrary” to 10 U.S.C. § 949m, “unambiguously exceeded his statutory authority” and therefore is “invalid and can provide no authority for [Baker’s] confinement.”

Third, Baker claims the commission has no statutory authority to exercise personal jurisdiction over him as a U.S. citizen. The jurisdiction of the military commission is limited by 10 U.S.C. § 948c to cases involving “alien unprivileged enemy belligerent[s].” Spath’s order confining Baker was therefore unlawful.

Finally, the chief defense counsel defends his actions Nov. 1 as falling outside the ambit of the 10 U.S.C. § 950(t) contempt offense. Properly interpreted in the military commissions context, “disorder” consists of violent, highly disruptive or otherwise intemperate behavior; Baker’s respectful disagreement with the judge’s assertion of authority over him and the civilian defense attorneys does not qualify. For the foregoing reasons, Baker requests that the district court invalidate the contempt ruling and order his immediate release from custody.

Judge Lamberth held an initial hearing on the habeas petition Thursday, after which respondents filed a written response in opposition. On the merits of the contempt determination, the brief rebuts Baker’s characterization of his authority to dismiss the civilian defense attorneys and to refuse the judge’s orders. The brief reiterates the legal basis under the Military Commissions Act and long-standing judicial practice for Spath to hold anyone appearing before him, including the chief defense counsel, in contempt. Turning to process arguments, respondents indicate that the military commissions’ convening authority is currently reviewing the contempt finding and sentencing for legal error, in accordance with R.M.C. 809, 1106 and 1107. Baker’s “remedies with respect to the military judge’s action finding Petition in contempt and sentencing him, properly lie within the military commissions process—first, with the Convening Authority . . . and then through review in the United States Court of Military Commission Review and the D.C. Circuit, through mandamus, if not direct appeal.” Therefore, respondent maintains, the district court should abstain from exercising habeas jurisdiction while review of Spath’s decision proceeds through the procedural channels Congress set forth in the Military Commissions Act.

On Friday, one hour before the parties were scheduled to convene again before Judge Lamberth to receive his decision, the Defense Department official serving as the military commissions’ convening authority, Harvey Rishikof, ordered Baker’s release from confinement and deferred the sentence pending further review. In light of Rishikof’s exercise of authority over the matter, Lamberth declined to inject himself into the process. He reserved the right, however, to take up the habeas petition in the future if the dispute could not be satisfactorily resolved in a “reasonable time” through the military commission appeals process. The convening authority’s decision on the merits of Baker’s contempt conviction is expected in the next few days.

In separate proceedings on Friday, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana issued a preliminary order preventing the military commission from compelling Kammen to appear either in person or by video teleconference in future proceedings on behalf of al-Nashiri. Kammen filed the request for a preemptive order with the district court Thursday in response to Judge Spath’s directive that Kammen, Eliades and Spears report to military commission headquarters in Virginia to participate remotely in Friday’s proceedings. None of the three complied.

Stay tuned for further coverage in the coming days on al-Nashiri itself and collateral issues.