Legal Black Hole Descends Into Farce: Brigadier General John Baker Released From Guantánamo
Donald Trump announced during the election that he was going to “fill Guantánamo up with bad dudes”; more recently he has mooted the idea of sending more prisoners to the prison.
This week, his Administration put their first “bad dude” into detention in Guantánamo; bizarrely, it was US Marine Corps Brigadier General John Baker. General Baker, who was summarily found guilty of contempt of court by the military commissions judge, US Colonel Vance Spath, and incarcerated for 21 days with a $1,000 fine.
General Baker is the chief military defense counsel, who coordinates the defense of the detainees being prosecuted in the much-criticised military commissions in Guantánamo. Three civilian lawyers had withdrawn from the capital commission of Abd Al Rahim Al Nashiri, accused of the attack on the USS Cole in 2000. They had concluded that Government spying on attorney-client privileged communications had put them in an impossibly conflicted position, and that they could not continue without violating their legal ethics. General Baker’s crime was to refuse Colonel Spath’s demand that he should order civilian death penalty lawyers return to the job, which would violate their ethics and put them at risk of disbarment.
In finding General Baker guilty, Colonel Spath told him that he could not speak: “I’m denying you the opportunity to be heard. Thank you. It’s a summary proceeding.”
Colonel Spath then found the General guilty of contempt because “on 31 October 2017 you willfully refused to obey the commission’s order to rescind your excusal of counsel.” He immediately sentenced the General to confinement: “you’re held in contempt, and you are sentenced to pay the United States a fine in the amount of $1,000 and to be confined for a period of 21 days.”
General Baker had then to seek a writ of habeas corpus – the same remedy as the other Guantánamo detainees – from the U.S. District Court in Washington DC. Incidentally, Judge Royce C. Lamberth held a habeas hearing on November 2, 2017 for two Guantánamo detainees that day: one, a Muslim prisoner held for the last 15 years; another, the second highest ranking lawyer in the Marine Corps.
In an attempt to avoid a humiliating intervention by a federal judge, today the Pentagon ordered General Baker released from confinement, but only deferred his sentence for now. Meanwhile, his conviction remains. Since the General is no longer in custody for the moment, at 14:00, Judge Lamberth ordered that the military should be allowed extra time, essentially to get its house in order.
Shelby Sullivan-Bennis – Reprieve counsel for several Guantánamo detainees – said:
“If ever there were a case that shows the absurdity of Guantánamo Bay, and why President Obama was correct to order it closed, it is this. The military commissions, always a tragedy for US democracy, have now descended into farce. Having evaded military service in Vietnam himself, the only person President Trump’s Administration has convicted in Guantánamo to date is now his own Marine Corps Brigadier General.”