Marine general seeks release, tests conviction

A Marine Corps general, being held prisoner in his own apartment at the Navy base at Guantanamo Bay after being convicted of contempt of a military court, asked a civilian federal judge in Washington, D.C., on Thursday to order his immediate release.

Brigadier General John D. Baker, who heads the team of military defense lawyers who represent accused detainees at military commission trials, was convicted of contempt Wednesday afternoon, and promptly ordered to 21 days of confinement to his home in an apartment near the court building.  He also was fined $1,000 by Colonel Vance Spath, who is the judge conducting a trial on terrorism charges of a Saudi national.

The general’s civilian lawyers argued in court filings, technically a plea for a writ of habeas corpus to challenge his confinement, that the judge “lacked the legal authority” to hold the general in contempt or to detain him.  The attorneys also said that the judge unconstitutionally deprived the general of his procedural rights by imposing the punishment without giving Baker any chance to speak during the contempt hearing Wednesday.

Judge Spath convicted the general for refusing to cancel an order that permitted three civilian defense lawyers to give up their role in the terrorism case because they felt they could not ethically continue because of alleged prosecution interference with their meetings with their client – Abd Al Rahim Hussein Al Nashiri.  The client is charged with an alleged role in the bombing of a U.S. Navy ship in Yemen 17 years ago, and faces a death penalty if convicted.

If the general had been allowed to speak, the new filing said, he would have told the trial judge that he lacked any power to act on his own to confine anyone, and particularly a U.S. citizen.

The new habeas petition was filed directly against Colonel Spath and also against Defense Secretary James Mattis, who as the head of the Pentagon has overall control of what happens at Guantanamo Bay, the Navy post in Cuba.

The federal law creating the military commission system, the new court filing contended, does not give judges in that system a general power to convict anyone from contempt.  Any contempt charge must be tried before a commission, not a single judge, it argued.

Only a commission may convict an individual, the document said, and only a commission can impose a sentence for a convicted individual.

Before any military tribunal can punish an individual for contempt, the tribunal must have the authority to put that person on trial, the filing noted.  But military commissions, under the scheme created by Congress, only have power to try foreign nationals, not U.S. citizens, according to the general’s attorneys.

Under the commission system, one had to engage in a serious disruption of a proceeding before risking a contempt charge, and nothing General Baker did came close to that, his lawyers contended.  He merely disagreed with Colonel Spath’s view of whether the general had the authority to let the three civilian defense lawyers exit the case, the filing said.

Meanwhile, a civilian federal judge in Washington turned down a plea by defense lawyers for Al Nashiri to stop the Guantanamo proceedings against him because he no longer is represented by an attorney who has had experience in handling cases that could lead to the death penalty.

U.S. District Judge Royce C. Lamberth held a hearing Thursday morning on that request, but announced at the end of the hearing that he had no authority to stop the military commission case.  He relied upon a recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit that civilian federal courts may not review a case at Guantanamo until after a final conviction has been reached.

Judge Lamberth also has before him the plea by General Baker asking for his release.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.