Pentagon defers contempt sentence of chief defense counsel in Guantanamo defense ‘revolt’

Legal Ethics

Guantanamo Bay

Aerial view of the U.S. Naval Station at Guantanamo Bay, Cuba.

A Pentagon official has deferred the contempt-of-court sentence of Marine Brig. Gen. John Baker, the lead defense counsel in the case of a Guantanamo Bay detainee that caused a revolt by defense lawyers.

According to McClatchy, Baker had been sentenced to 21 days of confinement to quarters—in Guantanamo, a trailer—after he refused a military judge’s order to bring back three civilian defense attorneys. Those attorneys had quit the defense of Abd al Rahim al Nashiri, a Guantanamo detainee accused of plotting a suicide bombing that killed 17 American sailors aboard the USS Cole in 2000.

On Oct. 31, the judge in the military commission, Air Force Col. Vance Spath, ordered Baker to rescind his directions excusing the three civilians. Baker refused, saying military law gives him the authority, as chief defense lawyer for military commissions, to release the attorneys. He also refused Spath’s order to testify, citing a privilege. On Nov. 1, Spath sentenced Baker to 21 days of confinement to quarters for contempt of court, as well as a $1,000 fine. The decision went to a senior Pentagon official—called in military justice the convening authority—for review.

Baker, with help from defense attorneys in the United States, had filed a habeas petition with the U.S. District Court for the District of Columbia. But just before a hearing in that case, a Pentagon official lifted the sentence. Baker’s contempt conviction was not vacated, and the sentence could be reimposed later. Federal district court judge Royce Lamberth, who was to hear the habeas case, called the Pentagon decision wise.

“I’m not going to stand down. I’m simply going to give the military time to clean up its own act,” Lamberth said. “And its first step was a good one.”

The full details of why the three civilian defense attorneys withdrew from the case are not available, because some information on the case is classified. But Richard Kammen, Rosa Eliades and Mary Spears cited “extraordinary government misconduct” related to attorney-client privilege and “judicial indifference to that misconduct.”

Their withdrawal left the defense team with no attorney who has death penalty experience and only one lawyer, Navy Lt. Alaric Piette. Hearings continued Nov. 3, but Piette refused to question some witnesses because of his lack of experience in capital cases.

Baker’s release doesn’t resolve the conflict with Spath over which of them has the legal authority to compel the defense lawyers to return.

Al Nashiri has been held at Guantanamo for more than 11 years, according to the New York Times.

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