Put simply, the military commissions in their current state are a farce …. Instead of being a beacon for the rule of law, the Guantanamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.
Brigadier General John G. Baker, Keynote Speech, 15 September 2017
On 1 November 2017, Marine Brigadier General John Baker, Chief Defense Counsel of the Military Commissions Defense Organization at Guantanamo Bay1 The Military Commissions are a post-9/11 war crimes trial system, which prosecutes detainees held in the US Guantanamo Bay detainment camp. was held in contempt and sentenced to 21 days confinement and a $1000 fine by the Military Judge, Colonel Vance Spath. After serving two days, he was released by the Convening Authority (CA),2 The Office of the Convening Authority is responsible for the overall management of the military commissions process, including logistics and personnel support. The Convening Authority is empowered to convene military commissions, refer charges to trial, negotiate pre-trial agreements, and review records of trials. The Convening Authority also provides the accused an opportunity for clemency before taking action on the findings and sentence of all military commission cases. Director of the Office of Military Commissions Harvey Rishikof, just before his Habeas Corpus petition of unlawful detention was about to be heard by Judge Royce C. Lamberth of the US District Court for the District of Columbia.
On 21 November 2017, the CA ordered that the findings of the military judge of contempt against Brig. Gen. Baker not be disturbed, as they “are correct in law and fact” and that the remainder of the sentence and the fine be remitted. The CA “forward[ed] the findings and record of the proceedings to the appropriate authority overseeing [Brig. Gen. Baker’s] service as a Judge Advocate within the Department of Navy, the DoD Standards of Conduct Office, and the Staff Judge Advocate to the DoD General Counsel’s Office, and the Commandant of the United States Marine Corps for an administrative ethics review.”
So, why was Brig. Gen. Baker held in contempt, and why do his actions that led to him being held in contempt merit the honor of The 2017 Defense Lawyer Profile of Courage?
First, a few words about the Military Commissions Defense Organization and the role Brig. Gen. Baker plays.
The Military Commissions Defense Organization is an office created by the US Congress to administer the legal defense services for defendants before military commissions. It maintains a separate command structure to ensure fairness and independence of the legal system. Brig. Gen. Baker is the Chief Defense Counsel of the Military Commissions Defense Organization. He appoints defense counsel for each accused tried by the Military Commissions, including “learned counsel” with specialized training and experience in capital (death penalty) litigation. Under Rule 505(d)(2)(B) of the Manual for Military Commissions (MMC), an authority competent to assign counsel, presumably meaning Brig. Gen. Baker, may excuse counsel “[u]pon request of the accused or application for withdrawal by such counsel; or … [f]or other good cause shown on the record.”
Events that led to contempt
The contempt case arose as a result of Brig. Gen. Baker’s decision to discharge the “learned counsel” in the al-Nashiri case. Mr. Abd al-Rahim Hussein al-Nashiri is accused of masterminding the 2000 bombing of the guided-missile destroyer USS Cole in the port of Aden, Yemen, which killed 17 sailors and wounded 39. The US government is seeking the death penalty, therefore Mr. al-Nashiri is entitled to a “learned counsel.” Richard Kammen, a highly qualified death penalty defense lawyer was appointed to represent Mr. al-Nashiri, along with two other defense lawyers, Ms. Rosa Eliades and Ms. Mary Spears.
According to news reports (see here, here, and here), the US government was monitoring the privileged mail system and listening to attorney-client communication. Scandalously, the meeting rooms were wired with microphones hidden inside smoke detectors.
Kammen repeatedly complained about episodes of improper intrusions in attorney-client communications. Brig. Gen. Baker issued a memorandum, declaring a “loss of confidence” in the integrity of “all potential attorney-client meeting locations at [Guantanamo Bay],” prompting him to give an ethics recommendation to all defense teams “not [to] conduct any attorney-client meetings at Guantanamo Bay … until they know with certainty that improper monitoring of such meetings is not occurring.”
In September, Kammen filed a motion before the Military Judge Spath seeking intervention and investigation of the confidentiality violations. On 20 September 2017, Judge Spath denied the motion in a classified ruling, stating that “after consideration of all the classified and unclassified filings … there wasn’t any basis to find there had been an intrusion into attorney-client communications between [al-Nashiri] and [his] defense team” (see here, para. 2(e)).
Kammen then raised his concerns to Brig. Gen. Baker that it would be unethical to continue representation of Mr. al-Nashiri if he cannot have confidential conversations with his client. Kammen also reached out to prominent legal ethics expert Professor Ellen Yaroshefsky, Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at the Hofstra University, New York, for an ethical opinion. Based on the facts and information presented by Kammen, Prof. Yaroshefsky concluded that without an ability to have confidential communications with a client, the lawyer representing the client “has no choice but to withdraw.”
Kammen shared Prof. Yaroshefsky’s ethics opinion with Brig. Gen. Baker and asked Brig. Gen. Baker to discharge him and the other two lawyers from representing Mr. al-Nashiri. Brig. Gen. Baker, who had the necessary clearances to review the classified facts on the record, found good cause to excuse Mr. Kammen and two other defense team members. Believing that under the Military Commissions Manual he was the authority to discharge defense lawyers, he discharged them as each had requested. In a press release, he commented:
While this was very difficult decision to make given its impact on Mr. Nashiri and the case, it was an easy decision to find good cause given the information presented by Mr. Kammen, Ms. Eliades and Ms. Spears and the facts as I know them.
Discharging Kammen frustrated Military Judge Spath, who maintained that only a judge could discharge an attorney after the start of the proceedings. Military Judge Spath’s frustration is not surprising considering that without a “learned counsel,” the case will not go any further and it would take a considerable amount of time before a replacement is found. Kammen had been involved in the case since 2008 and claims to have invested over 10,000 hours into this case. After Kammen and two other defense lawyers withdrew, the only remaining defense team member is US Navy Lieutenant Alaric Piette, who is not qualified in death penalty litigation.
Kammen did not show up for the scheduled hearing on 31 October 2017. Military Judge Spath ordered Brig. Gen. Baker to testify about the absence of the “learned counsel” and the other two members of the defense team. Brig. Gen. Baker refused. Military Judge Spath then ordered Brig. Gen. Baker to rescind his direction discharging the three defense lawyers. Brig. Gen. Baker again refused. Military Judge Spath then held Brig. Gen. Baker in contempt for violating the order of the Military Commission and sentenced him to 21 days in confinement and a $1000 fine.
While the CA concurred with Military Judge Spath that it was the Military Judge’s authority to rule upon defense lawyers’ requests for withdrawal, it seems the CA also found merit in the complaints raised by Kammen and the concerns of Brig. Gen. Baker, which he noted in his “loss of confidence” memorandum:
To ensure openness and transparency continue in the future, I also intend to recommend to the Joint Detention Group that a “clean” facility be designated or constructed which would provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring. This clean facility would also be checked periodically to ensure compliance with confidentiality expectations by an independent team to ensure it remains free of listening and inappropriate monitoring devices. Although this step is beyond the authority of the Convening Authority to direct, I take the liberty of noting it, because it would go far in facilitating litigation in this case (see here, para. 27).
Why Brig. Gen. Baker deserves the 2017 Defense Lawyer Profile of Courage honor?
Brig. Gen. Baker in taking the step to discharge the civilian members of Mr. al-Nashiri’s defense team, including his “learned counsel,” put ethics above career. As the second highest ranking lawyer in the US Marine Corp, a 28-year veteran with a bright future ahead of him, he could have taken the easy path, to punt, to offer a consoling ear and do nothing. The contempt conviction could earn Brig. Gen. Baker not just a bad performance review, but it could also lead to a series of career-damaging consequences: demotion, loss of his position as the Chief Defense Counsel in charge of defense military commission defense teams, and so on. He obviously must have known this before he made that courageous decision to relieve Kammen, Eliades, and Spears, from continuing to represent Mr. al-Nashiri, who, by the way, was not even entitled to learn that his communications with his defense team were being monitored.
Place yourself in Kammen’s shoes. Had he continued to represent Mr. al-Nashiri, he would have been violating a host of ethical obligations owed to his client. He would have been complicit in the US government’s eavesdropping enterprise, turning his client into an unwitting informant against himself. The findings of the CA all but reveal that Military Judge Spath’s finding that “there wasn’t any basis to find there had been an intrusion into attorney-client communications between [al-Nashiri] and [his] defense team” was a subterfuge.
Maybe Brig. Gen. Baker overstepped his authority, though I think not, considering Rule 505(d)(2)(B) of the Manual for Military Commissions (and despite Rule 4.2.a. of the Military Commissions Trial Judiciary Rules of Court – see here for the analysis of the two contradicting sets of rules). But what he did was in the finest tradition of the legal profession. However repugnant the charges may be against Mr. al-Nashiri, and whatever the quality of evidence against him, he deserves a fair trial – just like anyone falling under the jurisdiction of the US – be it in a State Court, Federal Court, Military Tribunal, or Military Commission.
In my view, Brig. Gen. Baker deserves a medal for honoring the US Constitution, for stepping up to the occasion and risking it all, and for not silently going along with what is clearly not only a farce of a judicial procedure, but also a flagrant trampling of a defendant’s rights (not least of all by attempting to turn defense counsel into agents working against the interests of their clients and in violation of all that is sacred to them – their ethics). I applaud his integrity.
|↑1||The Military Commissions are a post-9/11 war crimes trial system, which prosecutes detainees held in the US Guantanamo Bay detainment camp.|
|↑2||The Office of the Convening Authority is responsible for the overall management of the military commissions process, including logistics and personnel support. The Convening Authority is empowered to convene military commissions, refer charges to trial, negotiate pre-trial agreements, and review records of trials. The Convening Authority also provides the accused an opportunity for clemency before taking action on the findings and sentence of all military commission cases.|