The gist is that "contempt of court" in the Gitmo commissions is narrower than it is in most other courts, and this was likely outside the power of Col Spath. Additionally, the subject the judge was discussing (BGen Baker's dismissal of several defense counsel) was removed from the judge's purview recently, so he shouldn't even have been issuing orders in the first place.
I have the utmost respect for BGen Baker, and hope his conviction is swiftly overturned.
In this case, no. When the senior officer is of a different service, they are considered "superior" only if actually in the chain of command.
In general, this can be a source of tension. But ultimately, billet trumps rank. If the gate guard tells the Colonel that he can't come through the gate, the Colonel would do well to obey.
I have a question arising from the article: what is a "learned counsel", google is giving me garbage when I search it (I guess it's a word that bring money to SEO people). I am not a native english speaker.
This refers to the requirement to have attorneys of a certain level of experience on a given case.
The Navy Lieutenant (O-3) is still serving as defense counsel to the detainee even after BGen Baker dismissed the civilian counsel. But due to the above requirement, the case cannot proceed with him alone.
For those looking for more detail, Rule 506(b) in the Manual for Military Commissions reads: "Capital Offenses. In any case in which the trial counsel makes a recommendation to the convening authority pursuant to R.M.C. 307(d) that a charge be referred to a capital military commission, or in which the convening authority refers a charge to a capital military commission, the accused has the right to be represented in accordance with section (a) above, and by at least one additional counsel who is learned in applicable law relating to capital cases. The right to be represented by at least one additional counsel who is learned in applicable law relating to capital cases terminates at such time as all charges for which the death penalty is authorized are dismissed or referred as a non-capital offenses. Such appointment of learned counsel shall be in accordance with regulations prescribed by the Secretary of Defense. If necessary, such additional learned counsel may be a civilian andmay be compensated in accordance with regulations prescribed by the Secretary of Defense."
"Brig. Gen John Baker, the chief defense counsel for the military commission system at Guantanamo Bay, Cuba, had been sentenced to 21 days' detention and a $1,000 fine by a military judge angry that he allowed civilian defense attorneys to resign from a case. They withdrew after apparently discovering the government had been monitoring their communications, including legally privileged exchanges with their client.
...
Those classified rulings 'placed us in the untenable position of having to advise our client that we could not visit him, but could not tell him why we could not visit him,' one of the civilian attorneys, Richard Kammen, said in an October statement announcing that the Nashiri defense team had disbanded because it couldn’t guarantee its client confidentiality.
Defense lawyers consulted a legal ethics expert at Hofstra University, Ellen Yaroshefsky, who concluded they couldn’t continue to participate in the case, given their inability to assure their client their discussions would be private. Gen. Baker concurred with that finding and dismissed the attorneys.
...
At an Oct. 31 hearing, Col. Spath ordered Gen. Baker to take the witness stand and to rescind his decision releasing the civilian attorneys. When Gen. Baker refused, Col. Spath found him in contempt and sentenced him to 21 days’ confinement in quarters and a $1,000 fine. Gen. Baker was required to telephone the military judge’s office every two hours to verify he remained in quarters, except for eight hours sleeping time." [1]
More on the Obama administration's surveillance of the defense counsel [2].
Yes, it is. However, it's also reassuring that the system has corrected itself. While we might desire a system that never makes a mistake, it's comprised of fallible humans, and as harsh as it is, we know that sometimes there will be errors. What we can do is try to make a system resilient enough that it can minimize and correct those errors.
> it's also reassuring that the system has corrected itself.
Extrajudicial courts were created. Client-attorney interactions were willfully disrespected. A Brig. Gen allowed for the dismissal of the disrespected attorneys. A military judge threw a fit. The last ill has been partially corrected; we're a long way from due process, fair trials or justice.
Indeed. There's still a lot to be corrected, and the system as a whole wasn't perfect to begin with. But it's also last bit, which has been corrected, is the context of the submission. It's of course important to step back and assess the system as a whole: it's also important to recognize when smaller parts are working, if nothing else to remind ourselves that the system as a whole is worth saving.
> what is the point of the system, if you can create a parallel one whenever you feel the existing one is not convenient?
This is hyperbole. Nobody can create a military tribunal “whenever they want”. Specific circumstances led to Gitmo’s creation, circumstances not easily replicable domestically. American courts are still, by and large, impartial, independent and fair.
How can one say that "the system has corrected itself", when the perpetrators have yet to receive punishment? Criminals don't get to just cease and apologize.
Oh, I see. I think those are somewhat separate issues, but I do agree they need more attention and investigation. I'm not sure there are criminals in them or not, as a legal distinction. I do agree it's morally repugnant and goes against America's core values though.
As-written legal distinction isn't very meaningful - legislators have written out the system's actors' culpability in the same manner that judges give it a free pass.
A general sense of morality/values isn't very productive for making an argument either, as that basically reduces to "gut feeling" and rationalization. Many people are scared of the 21st century bogeyman, and will kowtow to whatever thugs are purporting to ward it off.
Instead I would appeal to very basic concepts, like symmetry. For instance, if the defense team had carried out similar surveillance, would they be facing the same (lack of) consequences?
> Instead I would appeal to very basic concepts, like symmetry. For instance, if the defense team had carried out similar surveillance, would they be facing the same (lack of) consequences?
Well, to be clear, that's a big part of what I find morally repugnant and against (professed) American values, the hypocrisy and inequality present in this situation.
The disturbing part isn't the "errors" on their own, but that it effectively came down to the integrity of a single person under duress. The system failed because it was no longer the system protecting the accused - it was the General under house arrest.
I agree. People high up decided that it was not cool to have a marine corps general under arrest.
I have a few questions:
1. How is it legal to tap the communications of an attorney and his clients ?
2. Is such evidence admissible in American courts ?
3. How can it be that the general can be held accountable for 'allowing the resignation of defense counsel(s)' Is such permission required ?
Unless that Col. gets kicked out of the military and disbarred for being an unethical POS that's willing to railroad people into the death penalty without a fair trial, I don't think its fair to say the system corrected itself.
The prisoner, Al-Nashiri, was arrested in 2002 and held in CIA black sites for years. In 2004, he was sentenced to death (in absentia) in Yemen for the USS Cole bombing.
Instead, the CIA interrogated him and tortured him for years. Now he's charged in a case where if he wins he remains in prison indefinitely.
If this guy really was a terrorist why didn't the CIA send him back to Yemen to be put to death legally?
According to this article, a CIA official disputed his guilt saying: "He was an idiot. He couldn't read or comprehend a comic book."
I wonder what the truth is and how they could be ambiguous on his guilt. I think the CIA is generally good but I often wonder how it'd work if Elon Musk type principles drove government agencies. All organizations seem poisoned by processes and plagued by mental models designed by lawyers with relativistic principles.
one can only wonder how much "justice" in a justice system which does such things in absentia.
>If this guy really was a terrorist why didn't the CIA send him back to Yemen to be put to death legally?
while can't speak for CIA obviously, i think there are many reasons like for example how one can be sure whether current government-of-the-day in Yemen would kill the guy or let him go as a national hero?
> All organizations seem poisoned by processes and plagued by mental models designed by lawyers with relativistic principles.
this is why there are courts, the 3rd branch, whose decisions are supposed to have the power to correct the organizations back onto the right course. Of course in the situations when there is no court power present, like in Gitmo for example, the organization there - government - can do whatever it wants, be it a right thing or a wrong one, without any limitations/checks.
The key money quote from your link :
“While the government has an interest in ensuring that the proceedings at Guantanamo are fair, that interest is not compelling enough” to stop the proceedings, Wiltsie [a Justice Department attorney] said in Lamberth’s courtroom Thursday.
>All organizations seem poisoned by processes and..
Others in the comments here have pitched an important point. Because some parts of the legal system have been hijacked and these abuses are happening does not imply that the system is bad. It means that people of ill intent have grabbed the reigns.
Could you paint a pen picture of what Elon Musk principles would mean so we can discuss?
Carol Rosenberg at the Miami Herald provides by far the best news coverage of Guantanamo, the trials there, and of this ongoing story. Without her, it seems like much of the activity there would 'die in darkness'. Thank you Carol! (It's hard to find a good link to her coverage in general, but that one looks pretty good.)
Well, no. The UCMJ isn't "parallel" any more than the IRC is "parallel." They are both part of the U.S. Code. Just like "IRC" is shorthand for "26 U.S.C.", "Art X, UCMJ" is shorthand for "10 U.S.C. § 800+X"
That also has nothing to do with this case, seeing as how this is a tribunal under the Military Commissions Act, not a court-martial convened under the UCMJ.
Yes, for both courts-martial and commissions. I can only provide a good explanation of courts-martial, though, as I've never litigated in the commissions.
Congress set up the military courts to function kind of like a state jurisdiction, with its own trial courts, intermediate appellate courts, and overarching appellate court of last resort.
The trial courts are not standing courts, but are "convened" by commanders, and trial judiciary judges come to the convened court to preside (almost like how judges used to "ride circuit"). O-5 and O-6 commanders can usually only convene "special courts-martial" which have limits on the punishment they can mete out.
Each military department has its own intermediate appellate court called a "Court of Criminal Appeals" (CCA). There's the ACCA, the AFCCA, the CGCCA, and the NMCCA (Navy/Marine Corps). These are sitting courts but, like the trial judiciary, the judges are uniformed military members.
The court of last resort within the military justice system is the Court of Appeals for the Armed Forces (CAAF). They act like a "state Supreme Court" in a sense that they unify law within their jurisdiction, but you can still appeal their decisions to the U.S. Supreme Court. CAAF judges are civilians nominated by the President and confirmed by the Senate.
A recent example of a case that was appealed to the Supreme Court (but the Supreme Court did not grant certiorari and hear the case) was US v. Sterling:
STFW for the title or the first paragraph. This was covered by multiple reputable news outlets yesterday. I was also able to access the WSJ article by clicking through from a DDG search. Sometimes, publishers allow access from certain referrers (e.g., that's how I usually bypass Forbes' annoying welcome screen).
I actually tried an android chrome incognito Google search which found the WSJ article, but it used a different but just as effective way to prevent viewing all of the article even though it was AMP. That's when I figured I'd ask.
Some good background reading in a blog post by a fellow Marine: http://www.caaflog.com/2017/11/02/the-non-contempt-contempt-...
The gist is that "contempt of court" in the Gitmo commissions is narrower than it is in most other courts, and this was likely outside the power of Col Spath. Additionally, the subject the judge was discussing (BGen Baker's dismissal of several defense counsel) was removed from the judge's purview recently, so he shouldn't even have been issuing orders in the first place.
I have the utmost respect for BGen Baker, and hope his conviction is swiftly overturned.