Washington, DC (June 19, 2018) – Late yesterday, U.S. District Court Judge Royce Lamberth vacated the criminal contempt conviction against Marine Brig. Gen. John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization (MCDO). In a 27-page opinion, the Court found that Military Judge Spath’s summary conviction of General Baker was “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.”
On November 1, 2017, General Baker had been held in contempt by Judge Spath and sentenced to 21 days confinement in his quarters and a $1,000 fine. General Baker was held in contempt after his determination on October 13, 2017, that there was good cause to allow the withdrawal of three civilian members of the defense team in the case of United States v. Nashiri due to concerns that the government compromised attorney-client confidentiality. United States v. Nashiri is the trial of Abd al Rahim al Nashiri, who is the alleged mastermind of the 2000 bombing of the U.S.S. Cole. Judge Spath held General Baker in contempt for declining to rescind his decision allowing the three civilian lawyers to withdraw.
Barry J. Pollack, National Association of Criminal Defense Lawyers (NACDL) Immediate Past President and a partner at the law firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP in Washington, who took on the pro bono representation of General Baker at the behest of NACDL's Lawyers' Assistance Strike Force, said: "Yesterday’s decision confirms that the contempt finding was unlawful. Brigadier General Baker should have never been found in contempt for decisions he made admirably serving his country and the rule of law. "
NACDL President Rick Jones said: "Given the repeated instances of attorney-client privilege violations at Guantanamo, having the temerity to punish defense lawyers for doing their job was indeed a new low. But Judge Spath’s finding of contempt was one a federal court has now clearly stated cannot stand. That said, the military commissions are seriously flawed. And they remain so."
NACDL has long been concerned about attorney-client privilege at Guantanamo, as reflected, for example, in its 2012 NACDL ethics opinion. Previous NACDL statements on Guantanamo and attorney-client communications can be found here, here, here, here, and here.
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