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Baker v. Spath

United States District Court, District of Columbia

June 18, 2018

Brigadier General John G. Baker, U.S. Marine Corps, Petitioner,
Colonel Vance Spath, U.S. Air Force, in his official capacity; James Mattis, Secretary of Defense, in his official capacity, Respondents.



         The Court has before it Brigadier General John G. Baker's Petition for Writ of Habeas Corpus (the "Petition"). (ECFNo. 1). Upon consideration, the Court concludes the following:

1. That the presumption of collateral consequences applies to the contempt finding against General Baker. Therefore, the Petition is not moot and the Court has jurisdiction over this case;
2. That General Baker has exhausted all available remedial paths within the Military Commission system. Therefore, the Court will not abstain from exercising jurisdiction over this case under the doctrine set forth in Schlessinger v. Councilman;
3. That the Military Commission does have personal jurisdiction over General Baker for the purposes of making findings of and punishments for contempt; and
4. That Judge Spath (and military judges in Chapter 47A military commissions generally) does not possess a unilateral contempt power.

         For these reasons, the Court GRANTS General Baker's Petition and will issue the writ he requests.


         The petitioner, Brigadier General John G. Baker ("General Baker"), is the Chief Defense Counsel of the Military Commission System. The first respondent, Colonel Vance Spath ("Judge Spath"), is a military judge presiding over the Military Commission that is trying the capital case of Abd Al-Rahim Hussein Al-Nashiri ("Al-Nashiri") at Naval Station Guantanamo Bay, Cuba. The second respondent, Secretary James Mattis, is the Secretary of Defense and is the official promulgator of the Rules for Military Commissions ("R.M.C.") as authorized by the Military Commissions Act of 2009 ("MCA"). Under the authority of those rules, Judge Spath issued the findings and sentence that are the subject of this case.

         On October 11, 2017, General Baker excused all but one of Al-Nashiri's defense counsel because the excused counsel had ethical concerns regarding their continued representation of Al-Nashiri. The excused counsel consisted of Al-Nashiri's learned capital counsel and two other civilian defense attorneys employed by the Department of Defense. The lone remaining defense attorney, Lieutenant Alaric Piette, does not qualify as learned counsel in capital cases and is not qualified to serve as the sole counsel in capital cases under the Military Commissions Act of 2009. Because of this, Al-Nashiri requested an abatement of his case, which Judge Spath denied on October 27.

         Judge Spath convened a hearing in Al-Nashiri's Military Commission on October 31. At that hearing, Judge Spath ordered General Baker to take the witness stand and testify. General Baker, claiming privilege, refused the order. Judge Spath also ordered General Baker to rescind his excusal of Al-Nashiri's learned counsel and two civilian defense attorneys. General Baker refused that order as well.

         The next day, Judge Spath held a summary contempt proceeding against General Baker. At that proceeding, Judge Spath expressly denied General Baker the opportunity to be heard, citing the summary nature of the proceeding. Judge Spath then held General Baker in contempt for his refusal to obey the order to testify and the order to rescind his excusal of Al-Nashiri's learned counsel. After holding General Baker in contempt, Judge Spath sentenced General Baker to 21 days' confinement and a $1, 000 fine.

         General Baker was confined in a trailer in a housing area at Naval Station Guantanamo Bay beginning on November 1, 2017. The next day, while General Baker was still confined, his counsel filed a petition for a writ of habeas corpus with this Court. (ECF No. 1). A hearing was held that afternoon. After hearing argument from counsel for both sides, the Court stated that it would announce its ruling at a subsequent hearing to be held at 2:00 p.m. on Friday, November 3, 2017.

         But the Court did not announce its ruling at that hearing. About one hour before that hearing began, the convening authority deferred General Baker's confinement for the duration of its review of the contempt finding and sentence. In light of that development, the Court saw no more urgency to the situation and decided to defer ruling on the Petition (without actually staying the case) until the convening authority could complete its review and the parties could submit additional briefing.

         The convening authority completed its review on November 21, 2017. The convening authority decided to leave Judge Spath's contempt finding intact, but remitted the remainder of General Baker's sentence (both the confinement term and the fine). The convening authority also forwarded the record of the contempt proceedings and findings "to the appropriate authority overseeing [General Baker's] service as a Judge Advocate within the Department of the Navy, the DoD Standards of Conduct Office, and the Staff Judge Advocate to the DoD General Counsel's Office, and the Commandant of the United States Marine Corps for an administrative ethics review." Action on Contempt Proceedings at 1. On November 22, General Baker's counsel asked whether the convening authority intended to refer his case to the Court of Military Commission Review ("CMCR"). Such a referral has not occurred to date.

         Having carefully considered all of the briefs, evidence, and law before it, the Court is now prepared to announce its ruling and the reasoning behind that ruling.

         Summary of Arguments

         General Baker makes five arguments in support of his contention that the contempt finding was unlawful:

1. That his actions at the October 27, 2017, hearing do not meet the statutory definition of contempt set forth in 10 U.S.C § 950t(31);
2. That Judge Spath, as a military judge, had no authority to unilaterally impose a contempt finding;
3. That the summary contempt procedures employed by Judge Spath violated the MCA;
4. That the summary contempt procedures employed by Judge Spath violated General Baker's due process rights; and
5. That the military commission had no personal jurisdiction over General Baker.

         The respondents oppose all of General Baker's arguments. In addition, they assert two affirmative grounds on which they believe the Court should dismiss the Petition:

1. The Petition is moot because General Baker is no longer confined and will allegedly suffer no collateral consequences as a result of the contempt finding; and
2. The Court should abstain from considering the Petition under the doctrine of Schlessinger v. Councilman because General Baker allegedly has not exhausted all available avenues of relief internal to the military commission system.

         Both of the respondents' affirmative arguments raise threshold issues pertaining to this Court's jurisdiction over this case. Therefore, the Court will address them first. The Court will then address the question of whether the Military Commission has jurisdiction over General Baker to find him in contempt. Lastly, the Court will address the question of whether Judge Spath had power to unilaterally hold General Baker in contempt. Because the Petition may be granted on the basis of these issues alone, the Court will not address the remainder of the issues raised by General Baker.


         I. This Court May Properly Consider General Baker's Habeas Petition.

         The first issue before the Court is whether it may properly consider the Petition. The respondents argue that it may not for two reasons. First, they argue that the Court lacks subject matter jurisdiction over the Petition because it is moot. Second, they argue that General Baker has failed to exhaust all of his other available remedies, so the Court should abstain from considering the Petition even if it is not moot. The Court disagrees with the respondents on both points and finds that it may properly consider the Petition.

         A. The Petition Is Not Moot. Therefore, the Court Has Subject Matter Jurisdiction Over It.

         The Constitution confines the judicial power to actual cases or controversies. See U.S. Const, art. Ill. § 2. Therefore, when a lawsuit no longer presents a live controversy-in other words, when a lawsuit becomes moot-a court loses the power to adjudicate that lawsuit. See Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc) ("Even where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future."). For that reason, mootness is a "threshold jurisdictional issue" that the Court must address before turning its attention to the merits of this case. Coal, of Airline Pilots Ass 'ns v. FAA, 370 F.3d 1184, 1189 (D.C. Cir. 2004).

         The respondents argue that this lawsuit is moot because General Baker has already received all of the relief sought in the Petition. In his original "Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241," General Baker wrote the following as his request for relief: "order the petitioner's immediate release." (ECF No. 1-1 at 7). And the petitioner has been released.

         But the mere fact that General Baker has received all the relief he asked for in his original Petition does not by itself render this case moot. It is a well-established principle, one that all parties in this case acknowledge, that "an attack on a criminal conviction [is] not rendered moot by the fact that the underlying sentence has expired" or otherwise will not be served (as, here, through deferral of the remainder of General Baker's sentence). Lane v. Williams, 455 U.S. 624, 632 (1982). The Supreme Court has "held unanimously that the writ of habeas corpus [is] available .. . where the petitioner had been in custody when he applied for the writ, but had been released before this Court could adjudicate his claims." Sibron v. New York, 392 U.S. 40, 51 (1968) (citing Carafas v. La Vallee, 391 U.S. 234 (1968)); see also St. Pierre v. United Stales, 319 U.S. 41, 43 (1943) (permitting adjudication of the merits of a criminal case where "under either state or federal law further penalties or disabilities can be imposed ... as a result of the judgment which has . . . been satisfied").

         But this principle is not universal. "[A] criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Lane, 455 U.S. at 632 (quoting Sibron, 392 U.S. at 57) (emphasis added). The question before the Court, then, is whether there is a possibility that General ...

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