A Gitmo judge has ordered a Marine general to be confined after a dispute over surveillance in USS Cole case

  • The Marine general in charge of war-court defence teams at Guantanamo Bay has been found in contempt for allowing defence lawyers to quit a case.
  • He and they believed attorney-client confidentiality could not be assured.
  • The judge in the case wants to continue with proceedings, but a federal judge is set to decide on an injunction.

The judge in the death-penalty case against a suspected USS Cole attacker has found the the chief defence counsel for military commissions, Marine Brig. Gen. John Baker, in contempt, according to a report from the Miami Herald.

Baker is being held in contempt for releasing civilian defence attorneys from the case and is sentenced to confinement at Guantanamo Bay.

Earlier this month, three lawyers representing Abd al-Rahim al-Nashiri quit the case because they believed the US government was monitoring their communications with their client, a decision that Baker had supported.

They said they were unwilling to “provide unethical legal services to keep the façade of justice that is the military commissions running.”

Nashiri is alleged to be the mastermind behind the 2000 bombing of the USS Cole, in which 17 American sailors were killed.

The lawyers previously concluded there was significant reason to believe the US government was listening to their communications with Nashiri, according to The Daily Beast.

Baker also came to believe there was no assurance that attorney-client communications were not being monitored.

Baker’s conclusion was based on information that is still classified, according to Politico. For that reason, Spath also barred the lawyers for discussing their reasons for leaving with Nashiri, meaning the alleged Al Qaeda member lost his legal representation without knowing why.

The judge in the case, Air Force Col. Vance Spath, had ordered the lawyers to return to Guantanamo on Sunday for a pretrial hearing. They refused, and Richard Kammen — a death-penalty expert who has represented Nashiri for 10 of the 15 years he’s been in custody — called Spath’s travel order “illegal,” according to the Herald.

The only member of Nashiri’s defence team who appeared at Guantanamo this week was a Navy lieutenant who received a law degree in 2012 and has never tried a murder case, according to Politico. Nashiri’s case has been in pretrial proceedings for nine years. He was arraigned in 2011.

Baker returned to the war court this week and refused Spath’s order to reverse his decision to release the lawyers.

In a 35-minute hearing on Wednesday, Spath found Baker in contempt for his refusal. The judge sentenced Baker to a 21-day confinement in his quarters in a trailer park behind the courthouse on the US Navy base located in at the eastern tip of Cuba. Baker was also ordered to pay a $US1,000 fine.

Hours after that decision, Spath called Baker’s decision to release the lawyers “null and void” and ordered them to return — via remote feed from Washington — for a hearing on Friday. He also threatened them with contempt-of-court charges.

No trial date for the case has been set because the defence and prosecution are still deciding what Top Secret evidence the defence will be able to access.

Nashiri, who suffered brain damage while in secret CIA custody, also needs to undergo a court-ordered MRI.

A Defence Department lawyer who works for Baker has asked a US District Court for an injunction in Nashiri’s case, arguing that Spath is violating the defendant’s rights by pushing ahead with the pretrial process. The law covering the military commissions mandates that defendants have a capital-defence lawyer.

On Thursday, a federal judge denied the request for an injunction. That decision was immediately followed by an unlawful-detention petition filed by Baker’s lawyers. It remains to be seen whether the civilian defence lawyers will appear on Friday for the pretrial hearing, as Spath has ordered.

USS Cole bombing damage
USS Cole after the attack. US Navy

The ACLU has called Baker’s confinement “unlawful and an outrage” and said the judge’s decision needs to reversed and Baker released.

“The military commissions are willing to put people in jail for defending the rule of law,” Jay Connell, who represents another Guantanamo detainee facing a military commission, told The Daily Beast. “If they’re willing to put a Marine general in jail for standing up for a client’s rights, they’re willing to do just anything.”

Baker is a 28-year career officer who is now the second-highest-ranking lawyer in the Marine Corps. He became chief defence counsel for military commissions two years ago, according to the Herald, and he has since become a vocal critic of the war-court system set up to try terror suspects.

In a speech late last year, he called the military commissions at Guantanamo Bay “a farce” in their current state, saying they were “characterised by delay, government misconduct and incompetence, and even more delay.”

Baker outranks Spath, who refused to let the Marine general speak during the hearing on Wednesday. The decision to confine Baker was the first contempt conviction at military commissions, and it was the first conviction without a plea at the military tribunals since 2008.