Big news out of Guantánamo today: Marine Brig. Gen. John Baker, the chief defense counsel for the Military Commissions, was found guilty of contempt and sentenced to 21 days confinement and to pay a $1,000 fine.
This is the latest dramatic development in the the Military Commission’s efforts to try Abd al Rahim al Nashiri for the U.S.S. Cole bombing.
From Guantánamo, the Miami Herald’s indefatigable Carol Rosenberg reports:
Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the case, and ordered them to appear before him in person here at Guantánamo or by video feed next week.
At issue was Baker’s authority to excuse civilian, Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case of because of a secret ethics conflict involving attorney-client privilege. Also, the general refused a day earlier to either testify in front of Spath, or return the three lawyers to the case.
Spath, the judge in the case, has tried to move the case forward but has hit multiple roadblocks, stemming from the civilian defense counsel’s recent decision to quit the case because of classified ethical violations, which they say compromise their ability to have confidential and privileged attorney-client conversations. Although the details are classified, it is understood that the government has monitored what are supposed to be confidential conversations.
On Tuesday, Rosenberg reported:
The chief defense counsel, Marine Brig. Gen. John Baker, released attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case in mid-October based on secret information the public cannot know. Spath ruled that only a judge, not Baker, had the authority to excuse lawyers of record — and ordered the general to swear an oath and answer questions about the episode.
Baker stood three rows behind the defendant and refused, invoking a privilege.
The judge then ordered the general to rescind his decision to excuse the three lawyers. “I’m definitely not doing that,” the Marine general replied. Baker maintains that under the war court rule book he has the unchecked authority to release defense attorneys for “good cause.”
Then, Navy Lt. Alaric Piette, the remaining defense attorney, refused to file any further pleadings without a death-penalty defender.
Spath then scheduled a contempt hearing for the civilian defense counsel for today at noon.
“Yet to be seen is whether Piette’s refusing to litigate in the absence of a capital case qualified defender is contempt,” Rosenberg wrote on Tuesday.
You can read the full transcript of yesterday’s hearing here. We’ll post a link to today’s when it’s made available.
In case you missed it, Just Security’s David Luban wrote about Baker’s decision to disband the trial team when it happened on Oct. 13, and, over the weekend, looked at the ethical issues at play in the case. And yesterday, Duke Law School’s Charlie Dunlap asked, can defense counsel ever be lawfully surveilled by the government?
Also, it is worth reading Baker’s September speech, “The GTMO Military Commissions — Where We Are and the Way Forward,” if you haven’t yet. In it he says, “The Guantanamo Military Commissions are a failed experiment — and considering the gravity and importance of these cases, that failure is one that hurts us all.”
Please stay tuned to Just Security for further analysis.