Military Commission Judges Do Not Have Unilateral Power to Punish for Contempt

Military Commission Judges Do Not Have Unilateral Power to Punish for Contempt

Legal Sidebari

Military Commission Judges Do Not Have
Unilateral Power to Punish for Contempt
July 18, 2018
Brigadier General (Gen.) John G. Baker, Chief Defense Counsel of the Military Commission System,
prevailed in his habeas case against a military commission judge who sentenced him to 21 days’
confinement and fined him $1,000 for contempt. The contempt charge stemmed from Gen. Baker’s
refusal to appear before the military judge to defend or rescind his decision to permit all but one of the
defense attorneys in the Al-Nashiri (U.S.S. Cole bombing) case to withdraw on ethical grounds. The
District Court for the District of Columbia ultimately granted the petition in Baker v. Spath on the grounds
that military judges in the military commission system do not have the authority unilaterally to impose
punishment for contempt. Rather, contempt charges must be decided by a full military commission in the
same way as any other offense punishable by military commissions established under the Military
Commissions Act of 2009 (MCA).
Prior to addressing the military judge’s contempt power, the court reviewed whether it had jurisdiction to
hear the petition. Although Gen. Baker was no longer subject to confinement and his fine was remitted,
the court determined his habeas petition was not moot because the presumption of collateral consequences
applied. The court also rejected the government’s argument that the court should abstain because Gen.
Baker had not exhausted remedies available in the military commission system. The court pointed out that
the military commission rules do not provide for further review of a contempt conviction in the Court of
Military Commission Review (CMCR) and also disagreed with the government that appellate review
could be available at the CMCR through the All Writs Act in aid of its jurisdiction over the Al-Nashiri
case.
Turning to the merits, the court rejected Gen. Baker’s argument that he is not subject to military
commission jurisdiction because he is not an alien unprivileged enemy belligerent subject to such
jurisdiction under the MCA. However, while the first 30 of 32 offenses listed in the MCA (10 U.S.C.
§950t) apply to “any person subject to this chapter,” the crime of contempt applies to “any person” (10
U.S.C. §950t(31)). The court agreed with the government that this difference means that the contempt
offense provides an exception to the MCA’s general statements regarding jurisdiction. Consequently,
MCA commissions have jurisdiction to try non-enemy belligerents for contempt. This reasoning may also
apply with respect to the offense of “perjury and obstruction of justice,” which as defined in 10 U.S.C.
§950t(32) omits the phrase “any person subject to this chapter,” but also omits the phrase “any person.”
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A textual reading of relevant provisions of the MCA, however, doomed the government’s argument that
military judges in the military commission system have the authority summarily to punish participants for
contempt. The court noted that the contempt provision clearly contemplates punishment by a military
commission, not a military judge. That military commissions and military judges are not used
interchangeably in the MCA could be elicited from the fact that military commission members have
different qualifications from military judges. Also, while commission members serve on a military
commission, the military judge is detailed to and presides over the military commission. Consequently,
the court deemed a military commission to consist of the panel members. And because “no person may be
convicted ... of any offense” except with the requisite number of members’ votes, their votes would be
necessary to convict and sentence a person for contempt just as for any other military commission
offense.
The government did not argue to the contrary. Rather, respondents pointed to the Manual for Military
Commissions (MMC) rules regarding punishment for contempt, which permit the military judge to mete
out such punishment unilaterally. The court refused to apply Chevron deference to the MMC in this
regard because that doctrine applies only where a statute is ambiguous, which the court noted could not be
brought about circularly by promulgating non-conforming regulations. The court also rejected the
government’s efforts to create ambiguity by referring to legislative history and the relevant rules under
the Uniform Code of Military Justice (UCMJ), which accord the military judge authority unilaterally to
punish for contempt in courts martial. The court also rejected the government’s argument that the MCA’s
failure to state that military judges do not have unilateral contempt authority means they must have it.
According to the court, the MCA in fact says exactly that, just not in so many words.
Unless this decision is appealed and reversed, a rule permitting military judges unilaterally to punish
individuals for contempt would require an act of Congress to amend the MCA.

Author Information

Jennifer K. Elsea

Legislative Attorney

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