A New Low for Guantánamo’s Credibility: The Brief But Absurd Imprisonment of the Military Commissions’ Chief Defense Counsel

9.11.17

A collage of Brig. Gen. John Baker and Camp 6 at Guantanamo, produced by the Daily Beast.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

In the “you couldn’t make it up” department of Guantánamo absurdity, the prison last week secured its first new prisoner since March 2008 — not an ISIS- or al-Qaeda-related prisoner sent there by Donald Trump, as he persistently threatens to do — but Brig. Gen. John Baker, the Chief Defense Counsel of the troubled military commission trial system.

Writing in Slate, Philip Carter, a senior fellow at the Center for a New American Security and adjunct professor of law at Georgetown University, who briefly served as Deputy Assistant Secretary of Defense for Detainee Policy under President Obama, correctly identified Brig. Gen. Baker’s only offence as having been to “stand[] up for the rule of law and being held in contempt by a judge overseeing the military tribunals at Guantánamo.”

Carter proceeded to explain that the US has two legal systems: the best, “on display every week in federal courthouses, where processes unfold neatly and along well-worn lines established by centuries of statute and precedent,” and the worst, “on display at Guantánamo, where a dispute over government surveillance of defense counsel has resulted in a Marine general being detained (and released two days later) and civilian counsel being threatened with the same fate.”

Carter, who, in 2008, described the military commissions as “fundamentally and fatally flawed,” and argued that “the rule of law will prevail only if they are perpetually blocked,” then briefly explained the hugely problematical history of the commissions as follows: “The Guantánamo story starts two months after 9/11, with a deeply flawed executive order creating military commissions. The fateful order emerged from a hurried process that excluded most of the nation’s experts in war crimes law — including many at the Pentagon and State Department — resulting in tribunals that were eventually deemed unlawful by the Supreme Court. Congress has twice tried to fix Guantanamo’s war crimes courts, once in 2006 at the urging of President Bush and once more in 2009 at the urging of President Obama. Each time the trials get under way, however, prosecutors or defense attorneys for the detainees uncover some new defect or problem in the system.”

That is an accurate summary, but it does nothing to prepare anyone examining the commissions for what prompted Brig. Gen. Baker’s imprisonment. To understand that, what is needed is an understanding of how, at various times in the commissions’ history, defense lawyers have discovered that they are being spied on — as in April 2014, for example, when Judge James Pohl, the judge in the case against Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, halted pre-trial hearings after an allegation surfaced that the FBI had “turned a member of a 9/11 defendant’s defense team into a secret informant.”

In this latest collapse of trust in the commissions, the defect referred to by Philip Carter “concerns government surveillance of defense attorneys during their conversations with detainees they were assigned to represent.” He also cited other previous examples of spying, relating both to the commissions and to regular Guantánamo prisoners preparing habeas corpus petitions. As he explained, “Unnamed security agencies had listened to attorney-client conversations, read mail to and from detainees,” and even “allegedly used an interpreter who previously worked at one of the CIA’s black sites overseas.”

As he also stated, many of these incidents “remain shrouded in secrecy,” because “nearly everything at Guantánamo is presumptively classified,” and, as a result, “[e]ven the defense attorneys themselves, who hold the government’s highest security clearances, cannot candidly discuss the matter.”

However, as he proceeded to explain, “public court filings and media reporting suggests the government installed surveillance gear in the rooms used by lawyers to meet with their clients. It is unclear to what extent the government used this gear to actually listen to attorney-client conversations (which are generally sacrosanct in the American legal system), although the government has claimed the right to do so for security reasons, not to gain an advantage in the Guantánamo legal proceedings. Nonetheless, each discovery of surveillance has caused the war courts to grind to a halt, with judges very skeptical of the government’s right to eavesdrop on detainee lawyers.”

This time, however, as Carter described it, the meltdown “did more than delay the war trials: It blew up the defense team as well.”

The problem was as follows: because, by law, anyone facing the death penalty has to have a death penalty expert (“learned counsel”) to defend them, and because no such lawyers are available in the military, the Department of Defense was obliged to hire civilian attorneys to defend those facing the death penalty — the 9/11 co-accused, and Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole in 2000.

However, as Carter stated, “The Pentagon’s repeated surveillance of the defense team created an untenable ethical situation for these lawyers (Rick Kammen, Rosa Eliades and Mary Spears), who declined to continue their work under these circumstances.” Brig. Gen. Baker agreed, and “wrote that he was recommending a halt to attorney-client meetings and asking (again) that the government curb its eavesdropping on defense counsel.” He then “went further by disbanding the Nashiri defense team, citing the inability of civilian counsel to continue ethically representing their client.”

“At that point,” Carter continued, “a minor derailment of the Guantánamo trials turned into a full-fledged train wreck.” He then explained, “Under well-established law, defense counsel cannot withdraw without the court’s permission. Baker refused a request from Air Force Col. Vance Spath, the judge overseeing Nashiri’s trial, to reinstate the defense team, and also refused to testify on the matter before Spath’s court. In response, Spath declared Baker’s disbanding of the defense team to be ‘null and void’ and held Baker in contempt of court, sentencing him to 21 days of confinement and a $1,000 fine.”

This made headlines worldwide, of course, prompting widespread incredulity, and confirming what an irredeemable disaster the commissions are.

After Brig. Gen. Baker’s imprisonment, lawyers working for him sought a writ of habeas corpus, “perhaps the first time in history such a writ has been sought on behalf of an active duty general officer,” as Carter explained, adding that District Court Judge Royce Lamberth expressed concerns that Baker “had no obvious appeals route because he himself was not subject to the commissions’ jurisdiction.”

Last Friday, the commissions’ convening authority, Harvey Rishikof, decided to release Baker from his short-lived but significant imprisonment, although he “merely deferred Baker’s punishment without addressing any of the more basic tensions laid bare by Baker’s actions and Spath’s response,” as Carter put it, adding that al-Nashiri’s pre-trial hearing then continued, “but with just one relatively junior Navy lawyer, former Navy SEAL and 2012 Georgetown law school graduate Lt. Alaric Piette, representing the accused.”

As a result of this epic legal disaster, Carter concluded, accurately, that the military commissions “have gone off the rails and broken down so completely that they cannot be repaired.” As he also stated, “They now labor under the weight of ethical dilemmas like this, years of delay, and confusion about basic rules that make any effort to move them forward impossible.”

He also explained, “All three branches have tried to fix the Guantánamo war courts, and yet, even in their current incarnation, these tribunals are failing. It is time to end the charade of justice at Guantánamo and terminate these trials. The defendants in the dock at Guantánamo should face prosecution by a properly constituted American court — or none at all, and thus be detained under the laws of armed conflict. There simply is no substitute for justice and the rule of law.”

Here at “Close Guantánamo,” we wholeheartedly agree — and we thank Philip Carter for explaining so accurately, and with such controlled exasperation, why the military commissions are not fit for purpose, and need to be shut down, as, of course, does the entire prison, a failed experiment in lawlessness that ought to be a source of profound shame for all decent Americans every day it remains open.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

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10 Responses

  1. Tom Pettinger says...

    I don’t know how I’m still shocked at the lows Guantanamo offers, but it’s sadly excelling itself here. I thought the “charade of justice” comment says it perfectly…

  2. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    The newest Guantanamo prisoner? Not someone sent there by Donald Trump, but a US general, Brig. Gen. John Baker, the Chief Defense Counsel in the military commission trial system. Here’s my overview of the absurd depths the already fatally undermined commissions sank to last week, when a judge – briefly – imprisoned Baker for contempt of court. His crime? Defending the right of three civilian attorneys working on the case of Abd al-Rahim al-Nashiri to resign because they found out that the government had been spying on them. You really couldn’t make this up!

  3. Andy Worthington says...

    Thanks, Tom. Great to hear from you – and yes, just when you thought the whole US counter-terrorism project couldn’t sink any lower …

  4. Andy Worthington says...

    Noel Rooney wrote:

    The term ‘justice’ has now entered the realm of the absurd at Guantanamo; the judges have been judged, the lawyers have been jailed, the most basic rules of law have been banished. It is the court of Ubi Roi, translated into legalese by Kafka.

  5. Andy Worthington says...

    Yes, that sounds about right, Noel! I confess that I’m quite amazed when absurd decisions like Judge Spath’s take place without someone, at the last minute, managing to stop them because what they’re about to do is so spectacularly self-defeating. But there you go. Perhaps Judge Spath is having a quiet breakdown, and is having difficulty getting up every day the spectacularly pointless war court convenes. That would certainly make sense.

  6. Andy Worthington says...

    Noel Rooney wrote:

    perhaps the FBI are eavesdropping on the wrong people …

  7. Andy Worthington says...

    Perhaps they sometimes get the right poeple, Noel, but all my studying over the last 11 years has demonstrated to me repeatedly how every aspect of US “intelligence” demonstrates anything but intelligence – something that is also widespread in the UK as well, of course!

  8. Andy Worthington says...

    Noel Rooney wrote:

    many moons ago, soon after the tragic sinking of the Rainbow Warrior, Francois Mitterand was interviewed on French television; he explicitly said that the only reason any state had an intelligence was because all the others had one; they had no practical value at all and regularly caused far more trouble than they were worth; when asked why he did not disband the French version, he shrugged and implied that he would be killed if he tried

  9. Andy Worthington says...

    Ooh yes, Noel, that sounds very accurate. A UK version I heard, about the power of intelligence services post-9/11, is that they take aside any new PM and whisper to them that they know of al kinds of terrible plots, and ask the new premier just to consider how they would feel if anything terrible were to happen on their watch. Gets them every time, it seems. We need a proper sceptic in charge.

  10. Andy Worthington says...

    Thanks to everyone liking and sharing this. There’s a petition here to the Commissions’ Convening Authority, Harvey Rishikof, calling for the contempt charge against Brig. Gen. Baker to be dropped, hosted by the National Association of Criminal Defense Lawyers and the NACDL National Security Committee, who “welcome signatures from attorneys, activists, reporters, and any other interested individuals.”
    The petition states, “We call on the Office of the Convening Authority to withdraw the contempt finding against General Baker, cease to order civilian counsel whose ethical obligations preclude them from participating in the Nashiri proceedings, and halt the Nashiri proceedings until the defense team can identify new learned counsel to assist in this death penalty case. More broadly, the U.S. government should end the failed experiment of the military commissions and close the Guantanamo Bay Detention Center. Any charges against those currently detained at Guantanamo must be properly brought in an Article III court, while those detainees who are not charged must be released.” See: https://docs.google.com/forms/d/e/1FAIpQLSdnLJfqn99cKhzDSscP74NZ1cyPIfxTJX_3cQVC5YTAoPsAIQ/viewform

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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