United States District Court, District of Columbia
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.
HONORABLE ROYCE LAMBERTH UNITED STATES DISTRICT JUDGE
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
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.
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
these reasons, the Court GRANTS General Baker's Petition
and will issue the writ he requests.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
This Court May Properly Consider General Baker's Habeas
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.
The Petition Is Not Moot. Therefore, the Court Has Subject
Matter Jurisdiction Over It.
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).
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.
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
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 ...