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

Brig. Gen. John Baker, the Chief Defense Counsel of Guantánamo's troubled military commission trial system, photographed at an April 2016 hearing of the Committee to Review the Criminal Justice Act.

By Andy Worthington, November 8, 2017

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 U.S. 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 Guantánamo’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.