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Quxotic and impulsive comments related to the U.S. justice system by the current president of the United States are nothing new. But in the wake of the attack on bicyclists in New York City, the president’s comment that the justice system “we have right now is a joke, and it’s a laughingstock,” was indeed noteworthy, as was his call to short circuit the judicial process by sending the accused to Guantanamo Bay to be tried in a military commission. It is most extraordinary for the nation’s chief executive to denounce the justice system, much less with the attorney general sitting alongside him. As if to give proof to that negative characterization, within 24 hours the president specifically called for the “DEATH PENALTY” (his Twitter capitalization) for the accused attacker. He issued this call within hours of the incident and the arrest, and wholly without regard for the prescribed process by which the Department of Justice determines whether to seek a death sentence. That is a perfect example of a laughingstock justice system. No due process, no presumption of innocence, no evaluation of the weight of the evidence, no deliberation on the accused person’s mental state. Just, as the Tweet read, “Should move fast. DEATH PENALTY!”
But more significantly, the president’s timing could not have been more ironic. For even as the president’s odd commentary on the justice system was unfolding, a new round of bizarre and embarrassing events were unfolding in the military commission proceedings in Guantanamo. For a decade and a half, the military commissions have been a travesty. So much so, that even a president known for an aversion to retraction or correction quickly walked back his call to send the accused to Guantanamo, with a Tweet that noted that “statistically that process takes much longer than going through the federal system. …” That is a monumental understatement. Since September 11, more than 620 individuals have been convicted on terrorism charges in 63 federal district courts.1 Only two cases have proceeded to trial in the military commission proceedings in 15 years, one involved a defendant who boycotted the proceedings (did not even participate pro se), and none involved any person accused of the bombing of the USS Cole or the 9/11 bombing.2
But even by comparison to the abysmal developments at Guantanamo over the years, the events that unfolded in late October and November set a new low. For years there has been interference with the defense teams, which has consistently delayed and derailed the cases. Recently, it has been widely reported that the government has been eavesdropping on the confidential communications between one of the accused, Abd al Rahim al Nashiri, and his attorneys.3 This led Marine Brig. Gen. John G. Baker, the chief military defense counsel of the Military Commission System, to grant the application of three of those attorneys to be excused from the case after receiving an opinion from an expert in professional ethics that their continued involvement in the case would be unethical. Baker, who is the second highest ranking lawyer in the Marines, asserted that he was acting pursuant to his authority to assign defense counsel in military commission proceedings. This had the effect of leaving Mr. al Nashiri without learned counsel, i.e., experienced death penalty counsel, as required by the Military Commissions Act. U.S. Air Force Col. Vance Spath, who is the military judge presiding over Mr. al Nashiri’s case, had other ideas.
On Oct. 31, 2017, Judge Spath ordered Baker to testify under oath concerning his determination, but the general demurred, citing a claim of privilege within the Military Commission Rules of Evidence. The judge also directed Baker to rescind the direction excusing the civilian counsel, but he refused, attempting to cite the rule that gave him that authority, but was cut off by the judge. On the following day, without affording Baker an opportunity to be heard, Judge Spath held the general in contempt, sentenced him to 21 days and a $1,000 fine, and ordered his immediate confinement. Enter NACDL.
Baker reached out for help from the Association’s Lawyers Assistance Strike Force, and NACDL Immediate Past President Barry J. Pollack and his partner Addy R. Schmitt of Miller & Chevalier took the case. They filed a petition for a writ of habeas corpus and a request for emergency expedited consideration in the U.S. District Court for the District of Columbia. Just hours before the commencement of a hearing, the Convening Authority moved to defer Baker’s confinement, thereby releasing him from custody. As this column is written, the contempt finding stands, the imposition of penalty is deferred, and further proceedings are imminent.
For any lawyer, no matter how evident the flaws are in America’s criminal justice system, it is painful to have it decried as a laughingstock or a joke. But truly, the long sad saga of the military commission proceedings at Guantanamo Bay comes as close as anything to fitting that lamentable description.4 It is an abomination that a U.S. general was held in contempt for standing up for the Sixth Amendment right to counsel. And it is a shame that neither the president nor political leaders across the ideological spectrum can see the travesty of the military commissions for what it is, and end it once and for all.
- Human Rights First, Federal Courts Continue to Take Lead in Counterterrorism Prosecutions, https://www.humanrightsfirst.org/resource/federal-courts-continue-take-leadcounterterrorism-prosecutions.
- Andy Worthington, The Full List of Prisoners Charged in the Military Commissions at Guantanamo, http://www.andyworthington.co.uk/the-full-list-of-prisoners-charged-in-the-military-commissions-at-guantanamo.
- Carol Rosenberg, Guantanamo’s USS Cole Death Penalty Case in Limbo After Key Defense Lawyer Quits, Miami Herald, Oct. 13, 2017, available at http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article178691836.html; Phillip Carter, Guantanamo Is Where Justice Goes to Die, Slate, Nov. 3, 2017, available at http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/marine_
- Norman L. Reimer’s articles discussing Guantanamo include the following: Guantanamo: Peering Through the Keyhole at America’s Soul, The Champion, July 2008 at 7; More Than a Few Good Men and Women: America’s Heroes at Guantanamo Bay, The Champion, July 2016 at 9; and Will a Summer of Unease Halt the Momentum for Criminal Justice Reform? The Champion, October 2016 at 9.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.