Nov 03 2017

The US Military Injustice System

Up Date 11/3/2017 16:00: Over at The Daily Beast, Spenser Ackerman has weighed in on today’s events noting that even though Baker has been freed from his confinement, his contempt conviction still stands and that did not sit well with WAShington, DC Federal Judge Royce Lamberth.

Shortly before attorneys for Baker arrived in federal court to seek the Marine general’s freedom, military commissions convening authority Harvey Rishikof ruled that Baker does not have to serve his remaining 19 days of confinement at his Guantanamo Bay quarters.

Yet, in a microcosm of the procedural snarls that have afflicted the post-9/11 military commissions, Rishikof has yet to decide if he even has the authority to overturn Baker’s conviction – which came after a dramatic clash with a respected commissions judge, Air Force Col. Vance Spath.

Even though he is, for now, convicted for contempt of court, Baker will largely continue in his responsibilities overseeing military commissions attorneys for the detainees. [..]

Hours after the conviction, the Pentagon said that Rishikof “will determine whether to affirm, defer, suspend or disapprove the sentence in the next few days,” according to detentions spokesman Maj. Ben Sakrisson. [..]

In a sign of how unexpected the general’s conviction was, the Pentagon said Baker would continue to serve as chief of defense counsel even under confinement, though Baker had to cede oversight of Abd al-Rahim al-Nashiri’s defense to his deputy, Col. Wayne Aaron – meaning that Baker and Spath will not face off again in the war court.

Baker “is not prohibited from having communications” with outsiders, Sakrisson explained.

Lamberth’s decision leaves Baker’s case in Rishikof’s hands. Where it leaves the military commissions is a different story.

This is another good article that highlights what an absolute mess this is.

Up Date 11/3/2017 15:00: The Miami Herald‘s Carol Rosenberg is reporting that the three former defense attorneys for Abd al Rahim al Nashiri were not in the Alexandria, VA remote courtroom this morning.

Spath noted the absence in particular of learned counsel Richard Kammen, the long-serving, recently resigned capital defense attorney for accused terrorist Abd al Rahim al Nashiri. Then the judge plunged ahead with pretrial hearings, and testimony from an FBI agent. [..]

Yet to be seen was whether Spath would find Kammen, Eliades and Spears in contempt and order U.S. marshals to pick them up and deliver them to the video feed site in Virginia. It was the second time in less than a week that the three defense attorneys ignored the judge’s order to appear.

The whole article is worth reading as it contains interesting developments during the hearing that reveal what a farce these tribunals are. It also appears that both Ms. Rosenberg and the tribunal judge were unaware Gen. Baker’s release from confinement.

Up Date 11/3/2017 14:23: In a scramble to keep the federal courts out of decisions made by a Guantanamo military tribunal judge, Politico is reporting that a Pentagon official released Marine Brig. General John Baker from house detention.

An attorney for Baker confirmed he was advised that he is no longer confined to his quarters at Guantanamo. [..]

The move came about an hour before a federal judge in Washington was set to convene a hearing on a habeas corpus petition seeking Baker’s immediate release.

By releasing Baker, the Pentagon may have lessened the risk of a quick order from U.S. District Court Judge Royce Lamberth that could void Baker’s conviction or sentence.

Justice Department lawyers had argued that Lamberth should not intrude in the military justice system and in efforts by the Guantanamo judge, Air Force Col. Vance Spath, to control events in his courtroom.

It’s unknown if any of the three defense attorneys showed at the courtroom in Alexandria, Virginia.

In Charles Pierce’s commentary on the Forever War on Terror this story by Carol Rosenberg in The Miami Herald stood out:

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow the judge’s orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

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 capital terror case. The lawyers resigned last month over a covert breach of attorney-client privilege involving something so secretive at the terror prison that the public cannot know.

Wednesday evening, with Baker confined to his quarters in a trailer park behind the courthouse, Judge Spath issued another order: Directing the three lawyers — Rick Kammen, Rosa Eliades and Mary Spears — to litigate Friday in the death-penalty case against Abd al Rahim al Nashiri remotely from the Washington D.C., area by video feed to Guantánamo.

Baker is the chief defense counsel for military commissions, and the second highest-ranking lawyer in the Marine Corps. He had excused Kammen, Eliades and Spears from the case on ethical grounds, and refused to rescind the order —prompting the judge to find him in contempt of court. Baker also invoked a privilege stemming from his oversight role and refused Spath’s order to swear an oath and testify in his court. [..]

In his latest order, Spath threatened the three civilian lawyers with a contempt of court finding too.

He told them to appear at 8 a.m. Friday at Military Commissions headquarters in Alexandria, Virginia. The Pentagon would provide a link with the Top Secret courthouse in Cuba on Friday for a hearing — expected to take testimony from an unnamed witness — and would also set up “secure terminal equipment” for the accused terrorist, Nashiri, if they wanted to consult, the order said.

That was Wednesday. Then on Thursday in a WaShington, DC federal court this happened:

U.S. District Court Judge Royce Lamberth on Thursday denied defense counsel’s request to halt USS Cole hearings at Guantánamo, despite the refusal to participate by three civilian lawyers for the accused.

Within minutes of the denial, lawyers for Brig. Gen. John Baker, the chief defense counsel for military commissions, filed an unlawful detention petition in Lamberth’s court. The USS Cole case judge, Air Force Col. Vance Spath, on Wednesday sentenced the Marine general to 21 days confinement in his quarters, in a trailer park behind the Guantanamo courthouse, for refusing to return the civilian counsel to their jobs. [..]

Lamberth’s decision clears the way for a showdown Friday over whether the three lawyers who quit will report to an office building in Alexandria, Virginia, by 8 a.m. to litigate Nashiri’s case by video-feed to Guantanamo, as the trial judge, Spath, has ordered. Civilian Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears earlier in the week rejected Spath’s order to travel to the remote base for proceedings in the case. [..]

Without Kammen, Eliades and Spears, Nashiri has no representation with capital experience. If found guilty, Nashiri could face execution.

The exercise over who can release an attorney of record is also testing the reach of the war court set up by President George W. Bush after the 9/11 attacks and reformed by President Barack Obama. A year ago, a USS Cole case prosecutor said the war court has no authority to force a reluctant witness to Guantanamo. Instead, Spath sent U.S. marshals to scoop up the witness, Stephen Gill, from his home in Massachusetts, hold him overnight in a Virginia cell and deliver him to the same video-feed site where he has ordered Kammen, Eliades and Spears to appear as Nashiri’s counsel of record.

In that instance, a federal public defender sent a letter to the Guantanamo courtroom, offering to represent Gill, who was an un-mobilized Navy Reserves lawyer. Spath explicitly ordered that Gill not be told of the offer until after Gill had testified.

These military commissions are nothing more than kangaroo courts that were set up as a cover up of the government sanctioned torture. What’s going on here is not constitutional, no matter how the defendants are labeled. The events that have taken place over the last few days threatening civilian lawyers who are refusing to continue to participate in this unethical farce of a trial and confining a general without even the military definition of due process smacks of tactics used in Russia.

What the hell has happened to our criminal justice system?

According to Politico, at least two of the civilian lawyers plan to defy Spath’s order. Another hearing is scheduled for 2 PM ET today in Lambeth’s court to rule on Gen. Baker’s petition. We’ll up date this story as soon as the news breaks.