
Pentagon Releases Marine General Held at Guantanamo - JumpCrisscross
https://www.wsj.com/articles/pentagon-releases-marine-general-lawyer-ordered-to-confinement-for-disobeying-orders-1509750250
======
torstenvl
This is a major topic of discussion among my colleagues (I am a Marine judge
advocate).

Some good background reading in a blog post by a fellow Marine:
[http://www.caaflog.com/2017/11/02/the-non-contempt-
contempt-...](http://www.caaflog.com/2017/11/02/the-non-contempt-contempt-
proceedings-at-guantanamo/)

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.

~~~
jaggederest
I'm curious how, in this context, a Colonel is giving orders to a Brigadier
General.

~~~
torstenvl
Rock, paper, billet description. Col Spath was the sitting military judge over
the tribunal, and BGen Baker is the chief defense counsel.

~~~
neurotech1
Would the judge still be at risk for 'disrespecting a superior officer' no
matter what the billet?

~~~
torstenvl
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.

~~~
jasonjei
> If the gate guard tells the Colonel that he can't come through the gate, the
> Colonel would do well to obey.

Does this include the US President, commander-in-chief, hypothetically?

~~~
yladiz
Hypothetically, the US president could just make some calls that would
eventually reach to the gate guard’s superior and allow him through.

------
JumpCrisscross
"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].

[1] [https://www.wsj.com/articles/pentagon-releases-marine-
genera...](https://www.wsj.com/articles/pentagon-releases-marine-general-
lawyer-ordered-to-confinement-for-disobeying-orders-1509750250)

[2] [http://www.miamiherald.com/news/nation-
world/world/americas/...](http://www.miamiherald.com/news/nation-
world/world/americas/guantanamo/article44541324.html)

~~~
slededit
That is truly disturbing.

~~~
grzm
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.

~~~
JumpCrisscross
> _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.

~~~
grzm
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.

~~~
RobertoG
Is it not, this:

"Extrajudicial courts were created." (I would add, created at will and could
be created again in the future).

and this: "the system as a whole is worth saving"

a little incompatible?

I mean, what is the point of the system, if you can create a parallel one
whenever you feel the existing one is not convenient?

~~~
JumpCrisscross
> _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.

------
purplesite
Here's a photo of the Colonel-

[http://www.gazettenet.com/Gitmo-case-off-
rails-13508136](http://www.gazettenet.com/Gitmo-case-off-rails-13508136)

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.

[https://www.washingtonpost.com/world/national-
security/the-h...](https://www.washingtonpost.com/world/national-security/the-
hidden-history-of-the-cias-prison-in-
poland/2014/01/23/b77f6ea2-7c6f-11e3-95c6-0a7aa80874bc_story.html?utm_term=.b279dc66b477)

~~~
jmnicolas
> _Instead, the CIA interrogated him and tortured him for years._

> _I think the CIA is generally good [...]_

You're either having strange moral values or suffering from cognitive
dissonance ;-)

(I don't mean to attack you, it just jumped at me while reading your comment)

~~~
RobertoG
"You're either having strange moral values or suffering from cognitive
dissonance"

And, I would add, missing some reading in the modern history of South-America.

------
forapurpose
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.)

[http://www.miamiherald.com/news/nation-
world/world/americas/...](http://www.miamiherald.com/news/nation-
world/world/americas/guantanamo/)

Just Security, which has leading professors and experts in the field covering
national security and international law, provides the best analysis:

[https://www.justsecurity.org/46578/gitmo-mess-
continues/](https://www.justsecurity.org/46578/gitmo-mess-continues/)

------
nimish
The UCMJ is a completely parallel legal code and has some messed up elements.

~~~
torstenvl
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.

UCMJ: Chapter 47 of Title 10:
[https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-I...](https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-
II/chapter-47)

Military Commissions: Chapter 47A of Title 10:
[https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-I...](https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-
II/chapter-47A)

~~~
CalChris
What are the avenues for appeal in the military courts? Does it end up in the
SC?

~~~
torstenvl
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:

[http://www.caaflog.com/category/september-2015-term/united-s...](http://www.caaflog.com/category/september-2015-term/united-
states-v-sterling/)

------
kbenson
Anyone have a way to read this that doesn't require subscribing and is easily
accomplished from mobile (no JS Kung Fu)?

~~~
tosh
Politico: [https://www.politico.com/story/2017/11/03/john-baker-
release...](https://www.politico.com/story/2017/11/03/john-baker-released-
guantanamo-dispute-244523)

~~~
xenophonf
I read both but think the WSJ article was written better.

------
neurotech1
Non-Paywall archive [http://archive.is/ytv5S](http://archive.is/ytv5S)

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sombragris
Cannot read. Subscription required.

------
jheriko
paywall. how to get around it?

