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As covered on this blog, on April 16, 2019, the Court of Appeals for the District of Columbia Circuit issued its decision on a petition for a writ of mandamus in the case of In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri. The Circuit Court granted Al-Nishiri’s request to vacate all orders issued after November 19, 2015 by the former Air Force Chief Trial Judge—now a civilian immigration judge—Vance Spath. The reason for that action was that Judge Spath issued those orders while he had a “concealed and disqualifying ethical conflict.” Opinion at 15. The saga has now drawn the attention of major news outlets – Washington Post, New York Times, Bloomberg, Fox News.

Digging into the details, the Circuit Court found that Judge Spath engaged in undisclosed negotiations for future employment with the Attorney General while simultaneously presiding over Al-Nishiri’s commission. That was a problem because not only was one of the Attorney General’s subordinates from the Department of Justice detailed to the prosecution team in Al-Nishiri, but the Circuit Court was also more generally concerned because “the Attorney General plays an important institutional role in military commissions.” Opinion at 21.

The Court found the conflict of interest to be “intolerable,” declaring:

Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label.

Opinion at 17.

Simply put, “a judge cannot have a prospective financial relationship with one side yet persuade the other that he can judge fairly in the case.”

Opinion at 19 (citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)).

While the Court’s decision in Al-Nashiri arises from the Guantanamo Bay military commissions, the rationale from the opinion naturally reverberates into the military court-martial system. If the mere possibility of a future employment relationship between Judge Spath and the Attorney General in Al-Nashiri was problematic, then the consummated relationship between every court-martial’s military judge and their respective Judge Advocate General—who appoints them, removes them, and controls their future assignments—is a particularly precarious arrangement. It is that situation that invites a deeper examination of whether military judges may properly be considered not only impartial, but also independent.

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Back in January the Court of Appeals for the District of Columbia Circuit heard oral argument on a petition for a writ of mandamus in the long-running military commission of al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole. We noted the hearing in this post, and linked to the audio in this post.

The basis for the petition was a challenge to former military commissions judge Colonel Spath (now retired) based on the fact that while serving as a commissions judge in the case prior to his retirement, Spath sought (and eventually obtained) employment as a federal immigration judge. During that time he also held the chief of the Military Commissions Defense Organization in contempt (a finding that was later reversed; the #8 Military Justice Story of 2018) and he abated the al Nashiri trial indefinitely.

Today – in an opinion available here – the DC Circuit granted al Nashiri the requested writ and vacated all orders issued by Spath on or after November 19, 2015 (the date he applied for the immigration judge position), and all decisions of the Court of Military Commissions Review (CMCR) reviewing such orders.The court reasoned:

In sum, the Attorney General was a participant in Al-Nashiri’s case from start to finish: he has consulted on commission trial procedures, he has loaned out one of his lawyers, and he will play a role in defending any conviction on appeal. The challenge Spath faced, then, was to treat the Justice Department with neutral disinterest in his courtroom while communicating significant personal interest in his job application. Any person, judge or not, could be forgiven for struggling to navigate such a sensitive situation. And that is precisely why judges are forbidden from even trying. See Scott v. United States, 559 A.2d 745, 750 (D.C. 1989) (explaining that a judge’s obligation to avoid seeking employment with a party appearing before him does not “change simply because the prospective employer is a component of the Department of Justice”).

The fact of Spath’s employment application alone would thus be enough to require his disqualification. But Spath did yet more to undermine his apparent neutrality.

First, in his job application, Spath chose to emphasize his role as the presiding judge over Al-Nashiri’s commission. He boasted that he had been “handpicked by the top lawyer of the Air Force to be the trial judge” on “the military commissions proceedings for the alleged ‘Cole bombing’ mastermind,” Reply Attachments B-2, and he even supplied an order from Al-Nashiri’s case as his writing sample, see id. at B-11. Spath thus affirmatively called the Justice Department’s attention to his handling of Al-Nashiri’s case, making his performance as presiding judge a key point in his argument for employment.

Second, while Spath made sure to tell the Justice Department about his assignment to Al-Nashiri’s commission, he was not so forthcoming with Al-Nashiri. At no point in the two-plus years after submitting his application did Spath disclose his efforts to secure employment with the Executive Office for Immigration Review. Indeed, perhaps most remarkably, less than twenty-four hours after receiving his July 2018 start date, Spath indefinitely abated commission proceedings, musing on the record that “over the next week or two” he would decide whether “it might be time . . . to retire.” Commission Tr. 12374 (Feb. 16, 2018); see also supra at 11–12. Given this lack of candor, a reasonable observer might wonder whether the judge had done something worth concealing. Cf. Rule for Military Commissions 902(e) (permitting, in some circumstances, “the parties to [a] proceeding” to waive judicial disqualification but only if the waiver “is preceded by a full disclosure on the record of the basis for disqualification”).

It is, of course, entirely possible that Spath’s orders were the product of his considered and unbiased judgment, unmotivated by any improper considerations. But that is beside the point: “[a]ppearance may be all there is, but that is enough.” Microsoft Corp., 253 F.3d at 115. As the Supreme Court has explained, “[t]he problem . . . is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.” Liljeberg, 486 U.S. at 864–65. Spath’s job application, therefore, cast an intolerable cloud of partiality over his subsequent judicial conduct. Al-Nashiri thus has a clear and indisputable right to relief.

Slip op. at 22-24 (emphases added).

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument this morning on a petition for a writ of mandamus in the long-running military commission of al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

The argument docket page (with a link to listen live) is here.

The basis for the petition is a challenge to former military commissions judge Colonel Spath (now retired) based on the fact that while serving as a commissions judge in al Nashiri’s case prior to his retirement, he sought employment as a federal immigration judge. The writ petition is available here. The Government’s response in opposition is available here. A reply brief is available here.

In November 2017, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered confined to his quarters for 21 days by Air Force Military Judge Colonel Vance Spath, who found Baker in contempt in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

The contempt finding was dubious and Baker promptly filed a petition for a writ of habeas corpus in U.S. District Court for the District of Columbia. The day after the petition was filed (and two days after Baker was confined), the convening authority deferred the remainder of the confinement, resulting in Baker’s immediate release. A few weeks later the contempt finding was approved but the punishment (consisting of the confinement and a $1,000 fine) was disapproved outright.

In 2018 General Baker won reversal of the contempt finding entirely. That reversal is the #8 Military Justice Story of 2018.

District Judge Royce C. Lamberth concluded that a military judge detailed to a military commission under the Military Commissions Act (10 U.S.C. Ch. 47A) may not unilaterally punish contempt. Rather, “only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A,” including contempt. Baker v. Spath, __ F. Supp. 3d __, __, 2018 U.S. Dist. LEXIS 101622, *41 (D.D.C. Jun. 18, 2018) (discussed here). Accordingly:

Judge Spath acted unlawfully when he unilaterally convicted General Baker of criminal contempt and sentenced him for that contempt. He usurped a power that belongs solely to the members of the commission, voting as a body. For that reason, Judge Spath’s contempt findings must be vacated and the Court will grant General Baker’s Petition.

Id. at __, 2018 U.S. Dist. LEXIS 101622, *40-41.

In a decision issued today and available here, Judge Lamberth grants Marine Corps Brigadier General John Baker a writ of habeas corpus and vacates the contempt finding made by military commissions judge Air Force Colonel Vance Spath.

Our (somewhat extensive) prior coverage is available here.

Judge Lamberth concludes:

Judge Spath summarily convicted General Baker of criminal contempt and sentenced him for that criminal contempt. Contempt is an offense under Chapter 47A. But Judge Spath’s actions were unlawful because only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A. And a military judge is not a member of a military commission nor is he “the military commission” within the meaning of that chapter. For this reason the Court will GRANT General Baker’s Petition, issue the writ he requests, and vacate his conviction.

Op. at 27. This conclusion turns on an important difference between the contempt power of a courts-martial and that of a commission. Article 48, 10 U.S.C. § 848, (the court-martial power) begins:

A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt. . .

While 10 U.S.C. § 950t(31) (the commission power) begins:

A military commission under this chapter may punish for contempt. . .

Carol Rosenberg reports here:

Friday morning, on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.

He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed.

“I am abating these proceedings indefinitely,” he said twice, at one point adding: “We’re done until a superior court tells me to keep going.”

He then walked off the bench at 10:12 a.m., declaring: “We are in abatement. We are out. Thank you. We’re in recess.”

Update: Transcript available here. 

Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri is a Saudi accused of orchestrating the 2000 bombing of USS Cole. According to the commissions website:

Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel. The charges arise out of an attempted attack on the USS THE SULLIVANS in January 2000, an attack on the USS COLE in October 2000, and an attack on the MV Limburg in October 2002.

Carol Rosenberg of the Miami Herald provides this update from the al Nashiri proceedings at the Guantanamo commissions:

A war court judge, reversing himself from remarks a day earlier, said Wednesday that he was still deciding whether to send U.S. Marshals to pick up two civilian defense lawyers who quit the USS Cole case and then ignored a subpoena to appear at the war court.

“I said very clearly yesterday that I want draft options … I haven’t decided yet to issue any writs,” Air Force Col. Vance Spath said at the opening of a third day of a weeklong hearing that has mostly focused on the presentation of evidence to the judge before a jury is seated and the trial begins.

Carol also reports:

On Wednesday morning, the judge said the night before he was reading an online military justice blog, CAAFlog, as part of his professional responsibilities and saw a reference to a Miami Herald article about his order to the prosecution to prepare arrest warrants for Eliades and Spears. They had ignored a subpoena to appear before the court by video feed on Tuesday.

Spath said the article misrepresented his request for the writs and left the impression that he was ordering the lawyers forcibly brought to Guantánamo. If he has them seized, he said, they will be brought to war court headquarters in Washington, where the court has a secure video link to the maximum-security court.

The post is available here, and did indeed imply that the warrant would be to bring the attorneys to Guantanamo because that’s what I though Colonel Spath was suggesting based on my knowledge of the case and the orders Colonel Spath previously issued to the civilian defense counsel to appear and represent al Nashiri (outlined in a comment here). But I updated my post on Wednesday after I reviewed the transcript of Tuesday’s proceedings (available here), to reflect that a warrant would be to appear in Virginia.

That transcript from Tuesday, by the way, quotes Colonel Spath as saying:

So what I would like is some homework overnight. Would you at least craft the two writs. Because I’m going to issue warrants of attachment — I plan to do it tomorrow — to have them brought sometime on Thursday or Friday.

Transcript at 11910 (emphasis added). The certainly looks like a decision to issue the warrant.

I will update this post when the transcript of today’s proceedings is available.

Update (Feb 15, 2018 @ ~2pm eastern): The transcript of the proceedings is available here, and includes the following statement by Colonel Spath:

And yes, I use CAAFlog. I don’t read the comments and I tend not to read the analysis; I don’t need their help, because some people suggest it has a bias. But what I appreciate about them is they tell me what cases have been decided, what cases are of interest. And then I can click on those links and go right to the case and I can read the case law, right, from CAAF or from AFCCA, or from the Supreme Court, and I can keep track of even cases that are affecting us. Seems like a reasonable one-stop shopping mechanism.

So I was a little surprised last night when I opened it to find this case making their — the top of the banner, and noticed very quickly that it said that I had ordered, or was going to order today, writs be issued against civilians to be dragged to GTMO. Imagine my surprise. Fortunately, there was a link to figure out where in the wide, wide world of sports is that coming from.

And it’s coming from a reporter who we brought down here and we bring down here willingly, and you know, put up, who got it wrong. I said very clearly yesterday I want draft writs so I have options as I figure out what to do, and I hadn’t made a decision yet. I don’t know if I could have been more clear. So I’ll say it again, I said yesterday I haven’t decided yet to issue any writs. If they’re issued, they’re not being brought to GTMO. Anybody paying attention to this process knows that, right?

Transcript at 11924-11925.

Update (Feb 14, 2018 @ ~1230 eastern): The original title of this post was based on my read of Carol Rosenberg’s reporting (quoted below). But, after reviewing the unofficial transcript of yesterday’s proceedings in the al Nashiri case (available here), I get the impression that Colonel Spath wants the civilian attorneys brought to testify remotely, by video teleconference (VTC), from the Mark Center in Alexandria, VA, and not brought to Guantanamo. Colonel Spath stated:

The witness [the civilian defense counsel] clearly refused, through counsel, because I saw the e-mail. And the Attorney Fox said they’re not showing. And I assume he can speak for them since he’s their attorney. And so I can’t see a valid excuse. Again, the e-mail that I was shown said I lack jurisdiction; I don’t. And that the — having to appear at the Mark Center by VTC for DoD civilians employed in D.C. would be oppressive, with no evidence to the contrary.

Transcript at 11909-11910. There are significant optics (if not legal) differences between a warrant of attachment to appear in Virginia and one to appear in Guantanamo.

Original post:

Air Force Colonel Vance Spath – the chief judge of the Air Force and a judge on the military commissions (and the person who held General Baker in contempt) – apparently wants federal authorities to use force to bring two DoD civilian attorneys to Guantanamo.

Carol Rosenberg of the Miami Herald reports here that:

The judge in the USS Cole terrorism case ordered prosecutors Tuesday to draft warrants instructing U.S. Marshals to seize two civilian defense attorneys who have quit the case and ignored his orders and a subpoena to appear at the war court.

Air Force Col. Vance Spath, the judge, said he would sign the “writs of attachment” on Wednesday and cautioned from the bench that the lawyer for Pentagon-paid attorneys Rosa Eliades and Mary Spears should hustle to federal court, if the lawyer wants to stop what are essentially arrest warrants.

A warrant of attachment (see R.M.C. 703(e)(2)(G)(i); R.C.M. 703(e)(2)(G)(i)) is a “legal order addressed to an official directing that official to have the person named in the order brought before a court.” R.M.C. 703(e)(2)(G)(i) (discussion). The Manual for Courts-Martial provides the following discussion:

Subpoenas issued under R.C.M. 703 are federal process and a person not subject to the code may be prosecuted in a federal civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served.

Failing to comply with such a subpoena is a felony offense, and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of attachment and criminal complaint under Article 47 should be borne in mind. The warrant of attachment, available without the intervention of civilian judicial proceedings, has as its purpose the obtaining of the witness’s presence, testimony, or documents. The criminal complaint, prosecuted through the civilian federal courts, has as its purpose punishment for failing to comply with process issued by military authority. It serves to vindicate the military interest in obtaining compliance with its lawful process.

R.C.M. 703(e)(2)(G)(i) (discussion).

Carol Rosenberg also reports that:

The judge had earlier Tuesday expressed a reluctance to have the women seized. He said in court that their arrests could cause them to lose their security clearances and jobs with the Department of Defense and thwart his goal of having them return to the defense team of Abd al Rahim al Nashiri.

That’s a pretty unrealistic goal, particularly since Rule for Military Commissions 502(d)(3)(C) states that civilian defense counsel in a military commission must:

[have] not been the subject of any sanction of [sic] disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct

Such sanction or disciplinary action seems to be inevitable (if it hasn’t actually happened already). This is – by the way – a unique rule for the Guantanamo commissions; there is no similar limitation on civilian defense counsel in courts-martial.

But even if al-Nashiri’s former civilian defense counsel aren’t disqualified by rule, there’s the fact that now facing a real threat of arrest and involuntary relocation to Guantanamo, they almost certainly have a conflict of interest with the accused.

And we know what that arrest will look like, because it’s happened before. The last person subject to a warrant of attachment from a military commission was demobilized Navy Reserve Lieutenant Commander Stephen Gill – a judge advocate – who (also according to Carol Rosenberg’s reporting):

was picked up at his home, apparently in Massachusetts, on [Tuesday, October 18, 2016] “at gunpoint,” he estimated by 20 officers, put in three-point restraints and held overnight at an Alexandria County, Virginia, detention facility.

When we last looked at the the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions) – the #6 Military Justice Story of 2017 – it was to consider a renewed request for habeas and a motion by commissions prosecutors to obtain the audio recording of the related commission hearings.

Since then the DOJ filed a response (available here) to Baker’s renewed request, and Baker filed a reply brief (available here).

While the DOJ’s response leads with arguments that the habeas petition is now moot and that Baker failed to exhaust administrative remedies, both of these new briefs give real attention to what I believe is the most important issue in this case: whether Baker’s conduct actually constitutes contempt as the term applies to the Guantanamo commissions. As I discussed here and here, the contempt power of the Guantanamo commissions was narrowly defined by Congress and Baker’s conduct does not clearly (or even remotely, I think) meet that definition.

The DOJ’s brief, however, significantly misinterprets the hierarchy of rules in the military justice system and thereby reaches the opposite conclusion.

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An interesting development in the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions).

Miami Herald reporter Carol Rosenberg reports here that commissions prosecutors filed a motion to release the audio of the commissions proceedings on October 31 and November 1, 2017. The allegedly (but not actually, as discussed here) contemptuous actions of General Baker occurred on October 31, and the contempt hearing itself (where General Baker was not allowed to defend himself) occurred on November 1. The motion to release the audio is not yet available on the commissions website, but Rosenberg has a copy and posted it here. It states, in part:

It is the Prosecution’s recollection that, on 31 October 2017, during the course of Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and audibly laughed in a contemptuous manner in response to the clear orders given by the Commission to rescind his release of defense counsel. This behavior, coupled with failure to approach the podium when addressing the court and his refusal to take the witness stand when called by the Commission, was consistent with his general deportment of defiance and disrespect before the Commission throughout the proceedings.

Mot. at 3.

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On November 1, 2017, Marine Corps Brigadier General John Baker was confined to his quarters (a room in a trailer) at U.S. Naval Station Guantanamo Bay. Air Force Military Judge Colonel Vance Spath ordered the confinement after finding General Baker in contempt (for conduct that clearly did not meet the applicable definition of contempt).

Two days later, at about 11:30 a.m. eastern on November 3, 2017, Army Military Judge Colonel Jeffery Nance sentenced Sergeant Bowe Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge – but no confinement – for Bergdahl’s desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

The facts as we know them suggest that General Baker was still confined at the time Bergdahl’s no-confinement sentence was announced. The convening authority sua sponte deferred Baker’s remaining confinement a few hours later, shortly before 1 p.m. eastern.

The incongruity – if not outright absurdity – of General Baker’s confinement and Sergeant Bergdahl’s liberty is the #6 Military Justice Story of 2017.

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Last month, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was found in contempt by Air Force Colonel Vance Spath, who is the chief judge of the Air Force and a judge on the military commissions. Spath punished Baker with 21 days confinement and a $1,000 fine. Baker served three days of that confinement in quarters before the commissions convening authority deferred the rest, and then ultimately disapproved both the confinement and the fine.

The basis of the contempt finding was General Baker’s refusal to appear as a witness to answer questions by Spath about the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole). I analyzed the finding in this post, and concluded that Baker’s conduct does not constitute contempt as the term is defined by Congress in 10 U.S.C. § 950t(31) (the commissions contempt power).

After the contempt finding, and while still confined to quarters, General Baker filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. I analyzed the petition in this post and concluded that it was a loser. Judge Royce C. Lamberth heard oral argument on the petition and deferred ruling (after the convening authority deferred the confinement and Baker was released).

Last Friday, General Baker filed a supplemental brief. A copy is available here.

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In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.

The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.

The convening authority also announced his intent to refer the matter for an ethics review.

The full text of the release is after the jump.

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Here is a link to a notice filed by the Government in Baker v. Spath, et al., informing the court that:

Shortly before 1 p.m. on November 3, 2017, the Convening Authority sua sponte deferred the remaining term of Petitioner’s sentence of confinement pending final action by the Convening Authority on the contempt findings. See Rule For Military Commission 1101(c). The deferral is effective immediately and notice of the Convening Authority’s decision has been served on Petitioner.

Earlier today I noted that BGen Baker filed a petition for a writ of habeas corpus seeking release from confinement to quarters after being found in contempt by military commission judge Colonel Spath in connection with a dispute over the release of civilian attorneys representing Abd al Rahim al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

As I wrote in this post, BGen Baker’s actions do not meet the statutory definition of contempt applicable to military commissions.

Since then I’ve had a chance to read the brief filed on Baker’s behalf in support of the habeas petition and – while I still believe that Baker’s conduct is not contempt – I think the petition is a loser.

Here’s why.

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