A U.S. military judge, in a highly unusual move, has ordered a Marine Corps general confined to his quarters at Guantanamo Bay, Cuba, fallout from a legal dispute in which the general refused to comply with the judge’s orders.
Brig. Gen. John Baker, the chief defense counsel for military commissions at Guantanamo, received 21 days of confinement in his trailer at Guantanamo after the judge, Air Force Col. Vance Spath, held Baker in contempt of court. Harvey Rishikof, a U.S. official who oversees the commissions, will decide in the next few days whether to affirm, defer, suspend or disapprove Spath’s sentence, a Pentagon spokesman said.
Their dispute emerged from the ongoing prosecution of Abd al Rahim al Nashiri, a Saudi Arabian citizen accused of masterminding the deadly USS Cole bombing in October 2000. Baker, as top defense counsel, agreed to let Nashiri’s three attorneys quit after they alleged the U.S. government spied on them while discussing legal strategy. Baker asserted it was within his authority to do so. Spath has said that’s a call only a judge can make.
Baker’s confinement, first reported by the Miami Herald, is yet another setback for the Pentagon’s much-maligned commissions system, which has faced years of criticism over the case’s protracted nature and the legal challenges that have arisen as cases are appealed. The dispute between Baker and Spath has been watched closely by active-duty and retired military lawyers, said James Weirick, a retired Marine Corps lawyer who served as a prosecutor at Guantanamo from 2008 to 2011.
“Everybody has for the most part viewed this as making a side show out of the process,” Weirick said. “It definitely doesn’t help the public faith of the military commissions.”
The confinement of a general over a legal dispute is likely unprecedented, said Charles Dunlap, a retired two-star general who left the Air Force in 2010 as its second highest-ranking attorney.
“I can’t think of another case like this in a military setting,” he told The Washington Post. “Because the facts are evidently classified, it’s hard to know what is really going on.”
Spath ruled that Baker acted outside his authority in dismissing the other lawyers, and that it “flies in the face of commonsense judicial review,” according to a transcript of Baker’s contempt hearing. Baker also refused to testify about his reasons why.
“The bedroom of any system is compliance with court orders, followed by attempting to navigate evidence and appeal for relief,” Spath said during the hearing. “Many lawyers don’t like ruling from trial judges, but every lawyer knows you have to follow them almost exclusively, without exception, until another court steps in.”
Spath has ordered Nashiri’s three lawyers to appear in his Guantanamo courtroom Friday morning via a video teleconference system at the headquarters for military commissions in Alexandria, Virginia. It is not clear whether they will comply.
Baker, who did not respond to requests for comment, still has Internet and cable access and has communicated with some other colleagues in the military justice community, Weirick said.
“The living conditions are a little spartan, but they’re not really a punishment of any sort,” he said. “He’s really just being sent to his room.”
(c) 2017, The Washington Post · Dan Lamothe