Baker v. Spath

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRlGAl)IER GENERAL JOHN G. BAKER,
U.S. MAR!NE CoRPS,

PETITIoNER,
No. 17-Cv-0231 l-RCL

V.

CoLoNEL VANCE SPATH, U.S. AIR FoRCE,
in his official capacity;

JAMES MATTls, SECRETARY oF DEFENSE,
in his official capacity,

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RESPONDENTS.

Memorandum Opinion

The Court has before it Brigadier General John G. Baker’s Petition for Writ of Habeas
Corpus (the “Petition”). (ECF No. 1). Upon consideration, the Court concludes the following: '
l. 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.

F or these reasons, the Court GRANTS General Baker’s Petition and Will issue the writ he requests.

Bac round

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 Cornmission 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 J ames 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 Def`ense. The lone remaining
defense attomey, 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.

n 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 refi,\sal 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 $l,000 fine.

General Baker was confined in a trailer in a housing area at Naval Station Guantanamo
Bay beginning on November l, 2017. The next day, while General Baker was still confined, his
counsel filed a petition fo`r 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 l. 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.

Summarv of Arguments

General Baker makes five arguments in support of his contention that the contempt

finding was unlawfill:

l. 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(3 l);

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:

l. 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.
Analysis

I. This Court May Properly Consider General Baker’s Hab`eas 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. T he 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. III § 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 Pz`lots 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. l-l 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. lt 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 States, 319 U.S. 41, 43 b
(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 beforethe Court, then, is whether there is a possibility thatGeneral Baker may suffer
from collateral legal consequences as a result of his conviction for contempt.

General Baker bears the burden of showing that this case is not moot. See Lujan v.
Dej?znders of Wildlife, 504 U.S. 555, 561 (1992) (stating that “[t]he party invoking federal
jurisdiction bears the burden of establishing” that the elements of the Art. III case-or-controversy
requirement are met). As such, he “bears the burden of establishing” that there is a possibility that
“collateral consequences” will be imposed as a result of the contempt finding. In re Petitioners
Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay, 700 F. Supp.
2d 119, 129 (D;D.C. 2010), an’d sub nom Chaman v. Obama, No. 10-5130, 2012 WL 3797596
(D.C. Cir. Aug. 10, 2012).

1) The Presumption of Collateral Consequences Applies to this Case.

General Baker attempts to meet his burden in two ways: (1) by showing that there is a
presumption of collateral legal consequences in his case, and (2) by enumerating specific collateral
consequences that he believes could result from Judge Spath’s contempt finding.

In habeas challenges to state- and federal-court convictions, the Supreme Court has
“been willing to presume that a wrongful criminal conviction has continuing collateral
consequences (or, what is effectively the same, to count collateral consequences that are remote
and unlikely to occur).” Spencer v. Kemna, 523 U.S. 1, 8 (1998). The respondents argue that the
Court ought not to extend this presumption to the context of convictions arising out of military
commissions In considering this argument, the Court thinks it wise to review the history of this
presumption The Supreme Court summarized the initial development of the doctrine in its opinion
in Sibron:

St. Pierre implied that the burden was upon the convict to
show the existence of collateral consequences Three years later in

Fiswick v. United States, 329 U.S. 211 (1946), however, the Court
held that a criminal case had not become moot upon release of a
prisoner, noting that the convict, an alien, might be subject to
deportation for having committed a crime of “moral turpitude”_
' even though it had never been held (and the Court refused to hold)
that the crime of which he was convicted fell into this category. The
Court also pointed to the fact that if the petitioner should in the
future decide he wanted to become an American citizen, he might
have difficulty proving that he was of “good moral character.”

The next case which dealt with the problem of collateral
consequences was United States v. Morgan, 346 U.S. 502 (1954).
There the convict had probably been subjected to a higher sentence
as a recidivist by a state court on account of the old federal
conviction which he sought to attack. But as the dissent pointed out,
there was no indication that the recidivist increment would be
removed from his state sentence upon invalidation of the federal

' conviction, and the Court chose to rest its holding that the case was
not moot upon a broader view of the matter. Without canvassing
the possible disabilities which might be imposed upon Morgan or
alluding specifically to the recidivist sentence, the Court stated:
“Although the term has been served, the results of the conviction
may persist. Subsequent convictions may carry heavier penalties,
civil rights may be affected. As the power to remedy an invalid
sentence exists, we think, respondent is entitled to an opportunity to
attempt to show that his conviction was invalid.”

Three years later, in Pollard v. United States, 352 U.S. 354
(1957), the Court abandoned all inquiry into the actual existence of
specific collateral consequences and in effect presumed they
existed. With nothing more than citations to Morgan and Fiswick,
and a statement that “convictions may entail collateral legal
disadvantages in the future,” the Court concluded that “the
possibility of consequences collateral to the imposition of sentence
is sufficiently substantial to justify our dealing with the merits.” The
court thus acknowledged the obvious fact of life that most criminal
convictions do in fact entail adverse collateral legal consequences
The mere “possibility” that this will be the case is enough to
preserve a criminal case from ending “ignominiously in the limbo
of mootness.”

Sibron, 392 U.S. at 54-55 (emphasis added).
Since reaching its high point in Sibron, this doctrine has been narrowed and confined
by the Supreme Court and other courts ln Lane v. Williams, the Supreme Court refused to extend

the presumption to persons who elected to attack only a portion of their sentences (parole terms of

which they allegedly were not informed), rather than their underlying convictions 455 U.S. at
632. In doing so, the Court reasoned that “[n]o civil disabilities such as those present in Carafas
result from a finding that an individual has violated parole.” Id. ln Spencer v. Kemna, the Supreme
Court declined “to presume that collateral consequences adequate to meet Article III’s injury-in-
fact requirement” would result from a parole revocation order. 523 U.S. at 14. The Supreme Court
also generally “cautioned against extension of the presumption of collateral consequences.” Gul
v. Obama, 652 F.3d 12, 16 (D.C. Cir. 2011) (citing Spencer, 523 U.S. 1).
ln Gul v. Obama, the D.C. Circuit declined to apply the presumption of collateral

consequences to petitioners who had previously been detained at Guantanamo Bay pursuant to
determinations that they were enemy combatants. 652 F.3d at 17. In doing so, the D.C. Circuit
cited “three prudential reasons for its conclusion” that it drew from Spencer:

First, presuming or accepting the remote possibility of collateral

consequences . . . sits uncomfortany beside the long-settled

principle that standing cannot be inferred argumentativer from

averments in the pleadings, but rather must affirmatively appear in

the record. Second, the presumption of collateral consequences had

been developed during an era in which it was thought that the only

fiinction of the constitutional requirement of standing was to assure

that concrete adverseness which sharpens the presentation of issues,

a view which has since yielded to the acknowledgement that the

constitutional requirement is a means of defining the role assigned

to the judiciary in a tripartite allocation of power. And third, it was

not clear a presumption of significant collateral consequences from

revocation of parole would comport with reality.
Id. (internal quotations and citations omitted). Relying on these reasons, the respondents urge the
Court not to extend the presumption of collateral consequences to a conviction arising out of a
military commission Id.

Having considered all of these arguments and the precedent cited by the parties, the

Court concludes that the presumption of collateral consequences applies to General Baker’s

contempt conviction. Lane, Spencer,v and Gul are all inapposite. The primary reason they are
inapposite is because none of those cases involved an attack on an underlying criminal conviction
Lane and Spencer both involved attacks on parole determinations and Gul involved an attack on a
non-criminal designation as an enemy combatant.

This distinction was a critical feature of the Supreme Court’s opinion in Lane. The
Supreme Court observed that the respondentsl in that case could have sought to remedy the alleged
failure to warn them of the parole portions of their sentences in two ways Lane, 455 U.S. at 630.
First, they could have asked “the District Court to set aside their convictions and give them an
opportunity to plead anew.” Id. Second, they could have sought “relief in the nature of ‘specific
enforcement,”’ i.e., “the elimination of the mandatory parole term from their sentences.” Id. Had
they chosen the first option, the Supreme Court explicitly said their case would not have been
moot. Ia'. But the respondents chose the second option and attacked only their sentences Id. at
631. “Since [they] elected only to attack their sentences, and since those sentences expired during
the course of these proceedings,” the case was moot. Id.

General Baker’s case is entirely different. He attacks not his sentence (which has been
deferred), but his underlying contempt conviction. This fact alone removes General Baker’s case
from the ambit of Lane and Spencer.

Gul also poses no obstacle to this Court’s consideration of General Baker’s Petition.
The petitioners in Gul challenged their designations as “enemy combatants.” 652 F.3d at 13, 15-
17. The D.C. Circuit refused to apply the presumption of collateral consequences to this
designation, stating that “detention at Guantanamo and designation as an enemy combatant are

recent phenomena; we have no basis for inferring they routinely have collateral consequences”

' Respondents at the appellate level. They were the petitioners at the trial level.

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Id. at 17. It also found that any harms that may theoretically flow from the designation were
“beyond the power of the Court to redress.” Id. at 18.

But General Baker’s case again is different Gul was an unusual case involving persons
“seized on a battlefield and [then] in the custody of a foreign sovereign” who had since been
returned to the control of foreign sovereigns Id. at 17. This meant the case “infringe[d] upon the
domain of the branches of government responsible for the external relations of the Nation.” Ia'.
No matter how interesting the particular circumstances may be, General Baker’s case is different
in how normal it is General Baker is a United States citizen who has been found guilty of criminal
contempt “Criminal contempt'is a crime in the ordinary 'sense.” Bloom v. Illinois,’ 391 U.S. 194,
201 (1968). It is “indistinguishable from ordinary criminal convictions” Id. Criminal contempt
convictions are not recent phenomena. And a conviction for criminal contempt’s “impact on the
individual defendant is the same” as the impact of any other criminal conviction Id. There are no
international relations concerns to consider at all.

General Baker, through habeas, attacks his underlying criminal conviction He does
not attack merely his sentence. And this case involves no international relations concerns

Therefore, the Court finds that the presumption of collateral consequences applies to this case.

2) T he Respondents Have Not Presented Evidence or Argument Su]Yicient to
Overcome the Presumption of Collateral Consequences.

The respondents have not presented evidence or argument to the Court that can
overcome the presumption of collateral consequences in this case. What the respondents have
done is rebutted_or attempted to rebut; the Court takes no position on the adequacy of the
respondents’ rebuttals_General Baker’s proposed examples of the collateral consequences that
he faces But such rebuttals of specific collateral consequences identified by the petitioner in a

habeas case are insufficient to overcome the presumption

ll

First, a finding that such rebuttals are sufficient would introduce perverse incentives to ,
the pleading and briefing strategy of habeas petitioners A petitioner asserting the presumption of
collateral consequences would have two equally unacceptable options: (1) He could not provide
examples of any specific collateral consequences he faces This would perhaps force the
respondent to rebut the presumption through more difficult methods than mere rebuttals. But it
would also put the petitioner at risk if the court finds that the presumption should not apply_he
would have no backup collateral consequences to which he could point. (2) He could provide
concrete examples of collateral consequences he faces This would protect him against a finding
that the presumption does not apply. But it would also make the presumption unacceptany easy
to overcome through merely rebutting a few concrete examples Both options are unfair to
petitioners

That being the case, what type of evidence or argument would be sufficient to overcome
the presumption? Lane provides some guidance. In footnote 12 of the majority opinion, the Court
notes that the State of Illinois, by law, chose “to define narrowly the collateral civil penalties that
attach even to a conviction of a criminal offense; generally, collateral consequences do not extend
beyond the completion of the sentence or the release from imprisonment.” 455 U.S. at 632 n.l2.
If respondents can point to law within the relevant jurisdictions that necessarily limits or eliminates
collateral consequences of the conviction in question, that could possibly overcome the
presumption 'l`he work of scholars and other surveyors of the law may be helpful in such an
endeavor. Just because courts have “consistently refused to canvass state law to ascertain ‘the
actual existence of specific collateral consequences”’ does not, in this Court’s view, mean that the
parties cannot do so for them. Lane, 455 U.S. at 634-35 (Marshall, J., dissenting) (quoting Sibron,

392 U.s 3155).

12

But this is beside the point. The point is that the respondents have not provided to the
Court either the type or quantum of information needed to overcome the presumption of collateral
consequences as it applies to this case. Therefore, the Court presumes that General Baker will
suffer collateral consequences as a result of his criminal contempt conviction and this case is not
moot. Having determined this, the Court need not examine the specific examples of collateral
consequences that General Baker claims will attach to him as a result of his conviction

B. General Baker Has Exhausted All Necessary Alternative Avenues of Relief so the
Court Will NotAbstainj?om Considering the Petition.

The respondents argue that even if this case is not moot (which it is not), the Court
should abstain from considering the Petition because General Baker has not exhausted all possible
avenues for relief within the military commission system itself. See generally Schlesinger v.
Concilman, 420 U.S. 738 (1975) (finding that district courts should abstain, as a matter of comity,
from habeas or other collateral review of decisions by the military court system where review
within the military court system itself would be sufficient to grant the relief the petitioner requests).
Specifically, the respondents argue that General Baker should first seek mandamus relief from the
Court of Military Commissions Review (CMCR) before being allowed to seek habeas relief from
this Court.

The Court does not think that General Baker must first seek mandamus relief from the
CMCR before this Court should entertain his Petition.

First, the Court finds the respondents’ argument rather disingenuous Rule 809 of The
Rules for Military Commissions (insofar as it is valid) governs contempt proceedings in military
commissions Rule 809(d) governs the review of contempt proceedings It provides the following

process for review of contempt proceedings

13

[A] separate record of the contempt proceedings shall be prepared

and forwarded to the convening authority for review. The

convening authority may approve or disapprove all or part of the

sentence. The action of the convening authority is not subject to

further review or appeal.
R.M.C. 809(d). General Baker’s conviction went through these procedures A record was
forwarded to the convening authority for review. The convening authority upheld the contempt
finding,2 but suspended the remainder of General Baker’s sentence. And according to the rule,
that “action of the convening authority is not subject to further review or appea .” Id. Despite that
clear language within the rules governing the military commission system, the respondents assert
' that the convening authority’s decision actually is subject to further review within the military
commission system in the form of mandamus to the CMCR.

But that position is clearly contrary to R.M.C. 809(d). That might not have been so
had the rule read only that the decision of the convening authority is not subject to further “appcal.”
That would leave open the possibility of further “review” within the military commission system.
But the rule says that the decision of the convening authority is not subject to further “review or
appeal.” Id. The point is clear_the decision of the convening authority after reviewing a finding
of contempt is to be final within the commission system. That being the case, the Court does not

agree that General Baker is even permitted to petition the CMCR for mandamus relief, much less

that he ought to do so before this Court may entertain his Petition. Review of his conviction and

2 The Court doubts whether the convening authority had authority to review and approve of the contempt finding
itself`. The regulation says that the “convening authority may approve or disapprove all or part of the sentence.”
R.M.C. 809(d) (emphasis added). As R.M.C. 809(e) makes clear, the word “sentence” within the rule refers to the
punishment (be it a fine, confinement or both) meted upon the contemptuous person It does not refer to the finding
of contempt itself. As such, it seems plain to the Court that the convening authority has no authority to review the
propriety of a contempt finding itself, but only the sentence imposed. This result is especially clear when the scope
of review in R.M.C. 809(d) is compared with the general scope of review given to the CMCR in 10 U.S.C. §950f(d),
which refers to both the “/z`nding and sentence” (emphasis added). Regardless, whether the convening authority acted
appropriately in reviewing the contempt finding itself is not relevant to the merits of General Baker’s Petition.

14

sentence within the military commission system is over. Therefore, there is no ongoing proceeding
to which this Court can defer under Schlesinger.

Second, even if further review within the military commission system was permitted
by the rules, the respondents fail to point to the source of the CMCR’s jurisdiction over any petition
for mandamus relief. Section 950f, which governs review of commission findings and sentences
by the CMCR, says that the CMCR may review only those cases referred to it by the convening
authority under § 950c. 10 U.S.C. § 950f(c). The convening authority has not referred General
Baker’s case to the CMCR, and it is not clear whether it even has the power to do so under R.M.C.
809(d).3 So § 950f cannot provide a basis for review of this case by the CMCR.

The respondents also point to the All Writs Act_a favorite of Guantanamo litigants_
as a potential source of jurisdiction See 28 U.S.C. § 1651(a). The All Writs Act does not itself
grant the CMCR jurisdiction because the All Writs Act “is not an independent grant of appellate
jurisdiction.” 16 CHARLES ALAN WRIGHT, Er AL., FEDERAL PRACTlcE & PRoCEDURE § 3932, p.
470 (2d ed. 1996) (quoted in Clinton v. Gola'smith, 526 U.S. 529, 534 (1999)). But “military
appellate courts are among those empowered to issue extraordinary writs under the Act” so long
as such a writ would be “in aid of [their] existing statutory jurisdiction” Clinton, 526 U.S. at 534-
35.

The respondents argue that mandamus review of General Baker’s contempt conviction
would be in aid of the CMCR’s future appellate statutory jurisdiction over the results of Al-
Nashiri’s military commission This is so, they say, because the CMCR has jurisdiction to review

a final judgment of` “guilty” in Al-Nashiri’s case. General Baker was “held in contempt for

3 And even if the convening authority could review the case, abstention would not be necessary as such referral is
“only a possibility and only at some unspecified time in the future.” Obaydullah v. Obama, 609 F.3d 444, 448 (D.C.
Cir. 2010),

15

refusing to take actions that would directly shape the defense Al-Nashiri receives for the duration
of his military commission case.” (ECF No. 16 at 24-25). And because General Baker’s alleged
contempt relates to the quality of Al-Nashiri’s defense and could arguably affect the eventual
outcome, review of the substance of that contempt would aid the CMCR’s jurisdiction over Al-
Nashiri’s case,

The Court does not see how addressing the merits of the contempt finding against
l General Baker would be in aid of the CMCR’s future appellate jurisdiction over Al-Nashiri.
Specifically, the Court does not see how any such review would actually affect the outcome of Al-
Nashiri’s commission As a factual matter, Judge Spath already declared (whether rightly or
wrongly) that General Baker’s excusals of three of Al-Nashiri"s counsel “are null and void.” Nov.
l, 2017 Tr. At 10064 (ECF No. 16-1 at 78). Despite this, “[t]he two DoD civilian defense counsel
and the outside learned counsel have chosen to ignore orders to appear before the commission.”
Ia'. Mandamus consideration of General Baker’s case is unlikely to change their minds

Further, the Court takes issue with the implications of the respondents’ argument It is
true that General Baker’s actions shape the defense Al-Nashiri receives in his military commission
So do a host of other things Everything from evidentiary rulings to the trial tactics selected by
remaining counsel affect the shape and potential success of Al-Nashiri’s defense. But the All
Writs Act is not the proper vehicle with which to obtain review of such matters The time to
address concerns about these issues with the CMCR is on a normal appeal. And the same holds
true in this case. If Al-Nashiri is found guilty, his case will surely be appealed to the CMCR. At
that time, the record of the contempt proceedings will be in the record of Al-Nashiri’s trial. See
R.M.C. 809(d) (“A record of the contempt proceedings shall be part of the record of the trial of

the military commission during which it occurred.”). The CMCR will then, in the ordinary course

16

of litigation, be able to take into consideration any affects that General Baker’s actions may have
had on Al-Nashiri’s case. That court’s jurisdiction over Al-Nashiri’s case is not threatened at all
by General Baker’s Petition. Therefore, the All Writs Act does not permit the CMCR to hear a
petition for mandamus relief on the basis of its jurisdiction over Al-Nashiri’s proceedings

The Court concludes that the military commission system’s own rules do not provide
for further review of General Baker’s habeas conviction in the CMCR. Even were that not so, the
Court cannot find any basis for the CMCR’s jurisdiction over such review. For these reasons, the
Court finds that General Baker has sufficiently exhausted his remedies within the military
commission system. Therefore, the Court will not abstain from exercising jurisdiction over his
Petition.

II. The Military Commission Has Personal Jurisdiction Over General Baker to Try
Him For Contempt Under 10 U.S.C. § 950t(31).

Now that the Court has established its own jurisdiction over the Petition, the Court
turns to General Baker’s argument that the military commission lacks personal jurisdiction over
him. If the commission lacks personal jurisdiction over him, then his contempt conviction is
invalid and the Court need not reach any of General Baker’s other arguments

A. General Baker ’s Argument that the Commission Lacks Personal Jurisa'iction over
Him.

The jurisdiction of military commissions convened under Chapter 47A is set forth in
10 U.S.C. § 948d. This section is entitled “Jurisdiction of military commissions.” The relevant
portion of § 948d reads as follows:
A military commission under this chapter shall have jurisdiction to

try persons subject to this chapter for any offense made punishable
by this chapter . . . .

10 U.S.C. § 948d. The exact phrase “persons subject to this chapter” is not defined, but § 948c is
entitled “Persons subject to military commissions,” which is closely related. Section 9480 reads
as follows:

Any alien unprivileged enemy belligerent is subject to trial by
military commission as set forth in this chapter.

Id. § 948c. In that section, “alien” is defined to mean “an individual who is not a citizen of the
United States” Ia'. § 948a(1).

Following these sections, General Baker’s argument that the military commission does
not have personal jurisdiction over him is straightforward General Baker is a citizen of the llnited
States Therefore, he is not an “alien.” See ia'. And because he is not an alien, he is not “subject
to trial by military commission as set forth in [chapter 47A],” Ia'. § 948c, and not “subject to
[chapter 47A]” at all within the meaning of § 948d. Therefore, he is not subject to the jurisdiction
of the military commission

B. The Respona’ents ’Argument that the Commission Does Have Personal Jurisa'iction
over General Baker (at Least for Contempt).

In response, the respondents point to an interesting feature of 10 U.S.C. § 950t, which
defines the crimes triable by military commission There are 32 enumerated crimes Thirty of
them begin with the phrase “Any person subject to this chapter.” Id. § 950t(1)-(30). But the 31St
crime in the list, contempt, does not begin with that phrase. ld. § 95 0t(3 1). Instead, the contempt
statute says that a “military commission under [chapter 47A] may punish for contempt any person
. . . .” Id. (emphasis added).

This difference, the respondents argue, is significant lt suggests that the military
commissions have power to punish a larger category of persons for contempt than they may punish

for the first 30 enumerated crimes While a military commission may only punish “persons subject

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to [chapter 47A_]” (i.e., alien unprivileged enemy belligerents) for the first 30 enumerated crimes,
it may punish “any person” for contempt This textual distinction would be rendered meaningless
if the only persons who could be punished by a military commission at all (even for contempt)
were alien unprivileged enemy belligerents subject to chapter 47A. As such, the respondents
interpret § 950t(3l) not only to define contempt, but also to extend the military commission’s
personal jurisdiction over any and all persons who may have committed contempt Therefore,
while General Baker is correct that the military commission has no personal jurisdiction to try and
punish him for the first 30 offenses listed in § 950t, the military commission does have personal
jurisdiction to try and punish him for’contempt.

C. T he Court Agrees that § 950t(3]) Gives a Military Commission Personal
Jurisdiction over T hose Guilty ofContempt.

The problem presented here is that the main statutory provisions in question_§ 948c,
§ 948d, and § 950t(3 l)_seem contradictory. Taken together, §§ 948c and 948d grant a military
commission jurisdiction over only alien unprivileged enemy combatants. Section 950t(3l),
meanwhile, purports to give a military commission authority to try and punish “any person” for
contempt There is tension there.

In resolving this tension, the Court keeps in mind two related rules First, it is a
“cardinal principle of statutory construction that courts must give effect, if possible, to every clause
and word of a statute . . . .” Williams v. Taylor, 529 U.S. 362, 364 (2000). Second, the Court is
mindful that “‘where Congress includes particular language in one section of a statute but omits it
in another . . ., it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion”’ Keene Corp. v. United States, 508 U.S. 200, 208 (1993)

(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).

Applying these rules to thiscase, it is clear that the lack of the phrase “persons subject
to this chapter” in the definition of contempt should have some significance. Of the 32 crimes
detailed in § 950t, 30 do have that phrase. The Court must “presume[] that Congress act[ed]
intentionally and purposely in the disparate inclusion” of that phrase. Keene Corp., 508 U.S. at
208.

But General Baker’s view of the extent of the commission’s personal jurisdiction
renders this textual distinction a nullity. Under General Baker’s view, the omission of the phrase
“persons subject to this chapter"’ from the definition of contempt has no real-world impact because
the personal jurisdiction of the commission being defined exclusively by §§ 948c and 948d, is
limited solely to “persons subject to this chapter.” Therefore, despite the exclusion of the phrase
“persons subject to this chapter” from the definition of contempt, the commission may only punish
“persons subject to this chapter” for contempt Such an interpretation renders Congress’s
intentional distinction meaningless and does too much violence to the statute.

Instead, the Court concludes that the best reading of the statute, in light of its text and
overall structure, is that §§ 948c and 948d give the commission personal jurisdiction over alien
unprivileged enemy belligerents (i.e., “persons subject to this chapter”), but that § 950t grants to
the commission an extra, tiny pocket of personal jurisdiction over “any person” who commits
contempt as defined by that section ln this way, § 950t does not merely define the subject matter
of contempt, but also acts as a limited grant of personal jurisdiction This interpretation does the
least possible amount of violence to the statutory scheme as a whole. lt preserves the commission’s
broad jurisdiction over alien unprivileged enemy belligerents while also giving real-world
significance to a clear textual distinction This is a preferable resolution of the tension in the statute

to General Baker’s

20

For these reasons, the Court finds that the military commission did have personal
jurisdiction over General Baker, but only for the limited purpose of determining guilt and
punishment for contempt

III. Judge Spath Has No Authority to Unilatcrally Impose a Finding of and Sentence
for Contempt

Section 950t of Chapter 47A clearly contemplates that contempt will be tried and
punished by a military commission The section is entitled “Crimes triable by military
commission.” 10 U.S.C. § 950t (emphasis added). The prefatory clause of that section reads “[t]he
following offenses shall be triable by military commission under this chapter . . . .” Id. (emphasis
added). The text of § 950t(3l) says that “[a] military commission under this chapter may punish
for contempt . . . .” Ia'. § 950t(3l) (emphasis added).

General Baker was summarily held in contempt by the unilateral action of Judge Spath.
But Chapter 47A provides no explicit authorization for a military judge to make findings of or
punish for contempt As such, the only way that Judge Spath’s actions can be lawful is if a
unilateral action by a military judge can be considered an action of the “military comrnission” as
that term is used in § 950t(3l). The question, in other words, is whether “military judge” and
“military commission” are interchangeable in that section

The Court holds that they are not. There are numerous statutory indications showing
that “military commission” cannot be understood to mean “military judge.”

Chapter 47A clearly distinguishes between military judges and members of military
commissions The requirements for service as a member on a military commission are found in §
948i. The basic rule is that “[a]ny commissioned officer of the armed forces on active duty is
eligible to serve on a military commission under this chapter.” Ia'. § 948i(a). This section also

clarifies that officers serving on a military commission are known as “members.” Ia’. § 948i(b)

21

(“When convening a military commission under this chapter, the convening authority shall detail
as members thereof . . . .”) (emphasis added).

Section 948i stands in contrast to § 948j, which sets out the qualifications for and duties
of military judges The mere fact that military judges are subject to a different set of rules from
actual commission members indicates that “military commission” and “military judge” may not
be read interchangeably. But the specific words in these sections reinforce this conclusion The
requirements for being a military judge are different from the requirements for being a member of
a military commission ld. § 948j (b) (requiring that military judges, in addition to being
commissioned officers of the armed forces, be members of the bar of a federal court or the highest
court of a state and also be certified as a military judge of general courts-martial). The words used
in the two sections describing the respective relations of the members and the military judge to the
commission are different Section 948i describes members as “serv[ing] on a military
commission” Id. § 948i(a) (emphasis added). But § 948j describes a military judge as “detailed
to [a] military commission” and “presid[ing] over [a] military commission.” Id. § 948j (a)
(emphasis added). These differences strongly indicate that the military commission actually
consists of the members, while the military judge is separate from and ancillary to that commission

The duties of and rules governing the military judge also emphasize hisseparate, non-
member status on or in relation to the military commission For example, a military judge is not
allowed to “consult with the members except in the presence of the accused . . ., trial counsel, and
defense counsel.” Ia'. § 948j(d). A military judge also may not “vote with the members.” Ia'. §
948j (e). These prohibitions against ex parte communications with members of the military
commission and voting with the members of the military commission reinforce that the military

judge is not, in fact, the military commission

22

These prohibitions are also common sense. They reflect the traditional barriers drawn
between judges and juries in any civilian court of law. And that analogy is instructive If a statute
read that “The jury may make findings of guilt and impose a sentence in a criminal case,” no
reasonable jurist would, absent other explicit statutory authorization read the statute to permit a
judge presiding over that jury to make such findings and impose such sentences instead of the jury.
Yet that is exactly how the respondents would have the Court read § 950t.

But that is not the end of the statutory evidence. The prohibition on military judges
voting with the military commission is especially instructive in light of § 949m. Section 949m(a)
reads as follows:

No person may be convicted by a military commission under this

chapter of any offense, except as provided in section 949i(b) of this

title or by concurrence of two-thirds of the primary members present

at the time the vote is taken
Ia'. § 949m(a). Contempt is an offense under Chapter 47A. See id. § 950t (including contempt as
one of the “offenses . . . triable by military commission under [Chapter 47A]”). Therefore, one
can only be convicted by a military commission of contempt by concurrence of two-thirds of the
primary members (except as provided in § 949i(b), which concerns plea bargains and is of no
relevance to this case). As the Court has already shown, the military judge is not a “member” of
a military commission and explicitly has no authority to vote with the members And because the
military judge is forbidden from taking part in the procedures that a military commission is
required to go through in order to convict a person, the Court rejects any suggestion that “military
` commission” as the term is used in § 950t and § 950t(3l) can be read to include a military judge,
much less to mean a military judge to the exclusion of the members

Finally, the Court notes that the respondents do not argue that the term “military

commission” .as used in § 950t(l)-{30) can be read to authorize unilateral findings of guilt and

23

sentencings by the military judge without the input of the members The reason is obvious Such
an interpretation would undermine the entire military commissions system and essentially
authorize bench trials for all of the crimes listed in § 950t. The Court can find no justification in
the text of the statute to interpret the term “military commission” in § 950t(31) any differently than
it is interpreted in § 950t(l)-(30). Instead, the repeated use of the term “military commission” in
this section and throughout Chapter 47A “presents a classic case for application of the normal rule
of statutory construction that identical words used in different parts of the same act are intended
to have the same meaning.” Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (intemal quotation marks
‘ and citations omitted).

The respondents argue that the Court should defer to the rules promulgated by the
Secretary of Defense interpreting the Military Commissions Act of 2009 (including the portions
of that Act constituting Chapter 47A) under the doctrine of Chevron deference. See generally
Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Those regulations
define “military commission” to include the military judge and to mean the military judge acting
alone when conducting a session outside the presence of the members R.M.C. 103(21). Those
regulations also give the military judge the exclusive power to determine whether to punish for
contempt and what that punishment shall be. R.M.C. 809(c).

The Court will not defer to these rules, even assuming they merit analysis under the
Chevron framework. The first step in a Chevron analysis is for a court to determine whether there
is an ambiguity in the statute. Chevron, 467 U.S. at 842-43. If “Congress has directly spoken to
the precise question at issue . . . the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 843. In determining whether there is

ambiguity in the statute, the Court does not defer to the agency’s own view of whether the statute

24

is ambiguous Nat ’lAss ’nfor Home Care & Hospice v. Burwell, 142 F. Supp. 3d 119, 124 (D.D.C.
2014).

The respondents’ arguments for why the statute is ambiguous all look to sources
external to the text of the statute itself. For example, the respondents point to the legislative history
of the Military Commissions Acts of 2006 and 2009, to comparisons with the contempt provisions
and procedures in the Uniform Code of Military Justice (UCMJ), to the historical practices and
policies that govemed military judges’ contempt powers in normal courts-martial and military
commissions, and to the Secretary of Defense’s own rules None of these, however, can be used
to create ambiguity in an otherwise clear text An agency cannot be permitted to create ambiguity
through its own rules and then request deference to those rules on the basis of that ambiguity, Such
a system would be circular. The provisions and judicial interpretations of the UCMJ, “while
instructive,” are not of their “own force binding on military commissions established under this
chapter.” 10 U.S.C. § 948b(c). The Court does not interpret “instructive” to mean that the UCMJ
may be used to create ambiguity in the text where none existed before And legislative history,
per the Supreme Court’s practice, may only be used to clarify ambiguous language, not to cast
doubt on the meaning of otherwise clear language Milner v. Dep ’t of the Navy, 562 U.S. 562, 572
(2011) (“Those of us who make use of legislative history believe that clear evidence of
congressional intent may illuminate ambiguous text We will not take the opposite tack of allowing 1
ambiguous legislative history to muddy clear statutory language.”); id. at 574 (“Legislative history,
for those who take it into account, is meant to clear up ambiguity, not create it.”).

The only textual argument that the respondents advance in favor of finding ambiguity
is that Chapter 47A does not explicitly say that a military judge cannot hold summary, unilateral

contempt proceedings But Chapter 47A does say that, just not in those exact words By making

25

contempt an offense triable by a military commission, and by requiring convictions for any offense
to be made “by concurrence of two-thirds of the primary members present at the time” a vote is
taken, Chapter 47A makes clear that summary, unilateral contempt convictions carried out by
military judges are impermissible 10 U.S.C. § 949m(a). Where “the statute’s language is plain,”
that is “where the inquiry should end.” Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct.
1938, 1946 (2016) (intemal quotation marks and citations omitted). The text of Chapter 47A is
plain, and so our inquiry ends with the text There is no basis for deference to the implementing
rules4

Stated simply, § 950t(3 l ).authorizes a “military commission” to try and punish a person
for contempt Chapter 47A is clear that a military judge is distinct from the members of a military
commission and that the commission is composed of the members “Military commission” does
not mean or include “military judge.” Therefore, Judge Spath acted unlawfully when he
unilaterally convicted General Baker of criminal contempt and sentenced him for that contempt
He usurped a power that belongs solely to the members of the commission, voting as a body. For
that reason,| Judge Spath’s contempt findings must be vacated and the Court will grant General
Baker’s Petition.

As these grounds are sufficient to grant to General Baker the relief that he seeks, the

Court declines to address any of the remaining arguments before it.

“ Even were the text ambiguous the particular rule at issue, R.M.C. 809, which permits (requires, in fact) military
judges, acting alone, to find and punish contempt, would be unlawful as “contrary to or inconsistent with [Chapter
47A].” 10 U.S.C. § 949a(a). As the Court has noted several times, § 949m(a) requires that all convictions for any
Chapter 47A offense be by vote of the members of the commission (except in the case of plea bargains). And contempt
is a Chapter 47A offense Therefore, R.M.C 809, which requires that a military judge, rather than the primary members
of the military commission, find and punish contempt, is directly contrary to the requirements of Chapter 47A and is
unlawful.

26

saw

Judge Spath summarily convicted General Baker of criminal contempt and sentenced

him for that criminal contempt Contempt is an offense under Chapter 47A. But Judge Spath’s

actions were unlale because only a military commission acting through its regularly constituted

members is authorized to convict a person of any offense under Chapter 47A. And a military judge

is not a member of a military commission nor is he “the military commission” within the meaning

of that chapter. For this reason, the Court will GRANT General Baker’s Petition, issue the writ
he requests, and vacate his conviction

By reason of this decision, all other pending motions before the Court will be denied

35 mOOl.

A separate order shall issue this date.

signed; June / Y ,2018.

HONORABLE ROYCE LAMBERTH
UNITED STATES DISTRICT JUDGE