A Marine Corps brigadier general who was held in contempt Wednesday and detained amid a dispute over attorney-client protections at Guantanamo Bay is the kind of Kafkaesque quagmire that Miller & Chevalier’s Barry Pollack said calls him to bat.

Pollack, head of Miller’s white-collar and internal investigations practice, on Thursday filed a federal habeas petition in Washington federal district court on behalf of Brig. Gen. John Baker, chief defense counsel of the Military Commissions Defense Organization System.

A commission judge held Baker in contempt and ordered him confined for 21 days for refusing to rescind his Oct. 11 decision to excuse three civilian lawyers from their defense of Saudi Abd Al-Rahim Al-Nashiri, charged with organizing the bombing of the U.S.S. Cole in Yemen in 2000.

Barry Pollack. Credit: Diego M. Radzinschi/ ALM

“The government has for years promised us the only people detained at Gitmo are the worst of the worst,” Pollack said in an interview with the National Law Journal on Thursday. “With the confinement of General Baker, a military judge has detained the best of the best.”

The three defense lawyers, including capital defense counsel Richard Kammen of Kammen & Moudy in Indianapolis, sought to withdraw from the Al-Nashiri case because of alleged breaches of attorney-client and work-product privileges. To continue their representation, they said, would be a violation of ethical rules.

Although evidence of the alleged breaches is classified, Baker issued a memorandum on June 14 that advised defense counsel he had recently received information indicating that meeting spaces for military commission defendants and their lawyers could not guarantee confidentiality.

Pollack, in his habeas petition, asked U.S. District Judge Royce Lamberth for expedited review of the habeas petition. Lamberth, a former chief judge who oversaw lawyer access and other issues related to Guantanamo detainees, scheduled a hearing for Thursday afternoon and planned to continue the proceeding on Friday.

In the petition, Pollack made essentially three arguments: The presiding judge, U.S. Air Force Col. Vance Spath, violated Baker’s due process rights by expressly denying him an opportunity to be heard before holding him in contempt; the judge had no personal jurisdiction over Baker because the Military Commissions Act refers only to aliens; and none of Baker’s acts was contemptuous.

Pollack spoke to the NLJ about the case and its broader implications. What follows are highlights from the conversation, edited for length and clarity.

NLJ: How did you become counsel to Gen. John Baker?

Pollack: I am the immediate past president of the National Association of Criminal Defense Lawyers and there were people who reached out to the NACDL on Gen. Baker’s behalf once the contempt was threatened to try to get him legal counsel. The NACDL asked me to take it on and I was absolutely delighted to do so as someone who has enormous respect for Gen.  Baker and everything he has been doing to bring fairness to the proceedings.

Did Baker have any avenue other than federal habeas to challenge the contempt order?

I don’t think so. There is no other judicial review available. There is no process for this kind of contempt holding.

Are there broader implications on this contempt order for lawyers representing Gitmo detainees?

This contempt order is much broader than Gen. Baker. It undermines the defense function and fundamental fairness of these proceedings. The whole reason the chief defense counsel position was created is for Gen. Baker to do what Gen. Baker has done—ensure a strong, vibrant defense component. Without that, no one could have any confidence in these proceedings.

What impact might Baker’s situation have on civilian lawyers representing detainees?

It will have a chilling effect. Knowing you might go to jail for doing your job well may not be the best way to motivate people to take on these roles.

Judge Spath has directed the three civilian defense lawyers to appear at a hearing Friday in Alexandria, Virginia. Two have said they will not show up. Any thoughts on what may happen?

That’s well beyond what I’m doing so I’m just a spectator. I would have to say for the same reasons we set forth in our motion, it’s difficult to see what authority a military judge in a commission whose jurisdiction is limited to aliens would have over civilian U.S. citizens.

Al-Nashiri is left with one military defense lawyer who is not capital qualified. During a hearing Thursday on a preliminary injunction to delay his case until qualified capital counsel is found, Lamberth raised concerns about civilian courts intruding in military proceedings. Do you think that concern will be an obstacle to your habeas petition?

I think Gen. Baker’s situation is different. We’re not asking Judge Lamberth to decide any of the underlying issues from the military commission. We’re not asking him to second-guess any decision in the commission process. This is a much more fundamental question—whether Congress gave a single military judge the authority to act as prosecutor and jury in a contempt hearing without giving Gen. Baker the opportunity to be heard. This is a pure legal question of statutory authority, which federal courts deal with all the time.

A transcript of the hearing at which Baker was held in contempt is posted below:

 

 

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