UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 809 session was called to order at 1215, 2 1 November 2017.] 3 MJ [Col SPATH]: Okay. These commission proceedings and 4 these contempt proceedings are called to order. 5 parties who were present yesterday are again present for this 6 session. 7 All the This session is being conducted both as part of the 8 normal commission process and pursuant to 10 U.S.C. Section 9 950t. Due to the nature of the conduct at issue, the 10 proceedings under 10 U.S.C. Section 950t are summary 11 proceedings conducted in accordance with Rule 809(b)(1) and 12 809(c) of the Rules for Military Commission. 13 Let me go through a few other parties. Brigadier 14 General Baker, the chief defense counsel, is present. 15 Lieutenant Piette, I understand that General Baker is now 16 represented by Colonel Hitesman from the United States Marine 17 Corps. Do you know if Colonel Hitesman is present? 18 DDC [LT PIETTE]: 19 MJ [Col SPATH]: I have no representations, Your Honor. All right. Thank you. Mr. Philip 20 Sutherland [sic], the acting general counsel for the Military 21 Commissions Defense Organization, is also present. 22 DDC [LT PIETTE]: 23 MJ [Col SPATH]: Sundel, Your Honor. Sundel. Thank you. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10052 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Just some general comments about yesterday and the 2 process that brought us here. 3 findings of fact yesterday, but as they indicated, I've ruled 4 on two occasions that General Baker acted in a manner outside 5 his authority. 6 We already went through the His decision to approve a requested release of 7 counsel for good cause, or release counsel for good cause 8 shown on the record, as stated by him, was unreviewable and 9 unilateral, and that flies in the face of commonsense judicial 10 review, as far as we can tell, every states' bar rules, court 11 precedent and two orders of the commission. 12 For defense counsel to have the authority stated by 13 the chief defense counsel would effectively give the defense 14 counsel the ability to dismiss any commission case or any 15 criminal case at any stage in the process for any reason when 16 they determine good cause, and then refuse to testify in court 17 to even explain what the good cause shown is, other than what 18 is submitted in written form. 19 CDC [BGen BAKER]: 20 object to the proceedings. 21 22 23 MJ [Col SPATH]: Your Honor, at this point I want to General Baker, you're not a party of record and we're moving forward. CDC [BGen BAKER]: You need to take your seat. I just want ---- UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10053 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 MJ [Col SPATH]: General Baker, you need to take your seat. CDC [BGen BAKER]: I again object. This court does not have personal jurisdiction over me. MJ [Col SPATH]: I appreciate that. We certainly have 6 considered that, and I disagree. 7 through why I disagree with that. 8 950t and the language that precedes every single rule until 9 you get to (31) and (32). 10 11 12 13 14 CDC [BGen BAKER]: I would suggest reading Your Honor, I just want to make sure that you are denying me the opportunity ---MJ [Col SPATH]: heard. Thank you. I'm denying you the opportunity to be It's a summary proceeding. CDC [BGen BAKER]: I understand. 15 clear. 16 me that I cannot say them. 17 And I'm not even going to go I just want the record There's things that I want to say, and you're telling MJ [Col SPATH]: General Baker, this is the last chance. 18 I don't want to -- this is really not a pleasant decision. 19 And I know that some of you might think that this is fun or 20 lighthearted, right? 21 base. 22 this is fun. 23 I've heard commentary out around the Alls you've got to do is get on the Internet. None of None of this is easy. I have spent a lot of time reviewing the rules that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10054 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 apply to this commission, and I appreciate -- General Baker, 2 no more. 3 4 5 Sit down, please. CDC [BGen BAKER]: Your Honor, I have spent a lot of time, too. MJ [Col SPATH]: I have spent a lot of time as the judge. 6 And any system of justice understands that, except apparently 7 participants in the commission, about following orders and 8 following a process. 9 get the suspension in here in time, I'll stop. 10 I know there's a habeas filed. Do you know what I won't do? If we I won't tell that judge 11 I'm not going to follow your order, because I know better. 12 I'm going to ignore that order and press on because I disagree 13 with you. 14 comes in and this is suspended, I will stop. 15 16 17 18 That's not going to happen. CDC [BGen BAKER]: MJ [Col SPATH]: 20 MJ [Col SPATH]: 23 General Baker, I don't want to have to have you removed. CDC [BGen BAKER]: 22 Your Honor, again, I request to be heard. 19 21 And so if that order I got it, sir. And I don't want to add to the contempt findings. This is a difficult, unpleasant decision, and frankly, it's an affront to the process of justice that we UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10055 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 have to go through it. 2 figure out a way to do it fairly and judiciously. 3 But here we are, and we're going to Yesterday also saw General Baker refuse to testify, 4 and also saw Mr. Sundel -- not a lawyer for the accused, 5 without a notice of appearance and without a written request 6 to be heard, asked to be heard. 7 And then I found out it was, frankly, a specious claim of 8 privilege under M.C.R.E. 501(b)(1). 9 I allowed it. I granted it. M.C.R.E. 501(b)(1) is modeled after the Federal Rule 10 of Evidence 501(b)(1), the Military Rule of Evidence 501(b)(1) 11 and, frankly, the Model Rules of Evidence that almost any 12 accredited ABA law school uses in teaching privilege. 13 Allowing for every witness simply to refuse to 14 testify because they claim any privilege under the sun would 15 stop every process cold, and everybody knows that, too. 16 that's why no authority could be found for the proposition 17 that that's what 501(b)(1) stands for. 18 doing some basic legal research, to find a few obvious 19 conclusions about where we are. 20 And It didn't take long, One, the right to refuse to be a witness is different 21 than the right to refuse to testify. 22 assertions made yesterday were true, any criminal system or 23 tribunal would ground to a halt because every witness who As I stated, if the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10056 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 didn't want to testify would claim privilege. 2 to a claim of privilege, the trial judge or the commission 3 judge is obviously the first arbiter of whether something is 4 even privileged; and then if it is privileged, by some chance, 5 whether or not it's going to be pierced for good cause. 6 The piercing of a privilege requires different But with regard 7 considerations, including different considerations for each 8 privilege. 9 others. The law has long held some are more important than A couple of examples, right, attorney-client versus a 10 government information privilege. 11 those. 12 information? 13 Different ways to pierce Or how about national security versus confidential Different levels of privilege. But the piercing of an alleged privilege is first and 14 foremost a trial court decision, period. 15 determines piercing of a privilege -- and I'll set aside the 16 national security privilege for a moment, as there are rules 17 there regarding an unauthorized disclosure of classified 18 information and a judge's inability to order that. 19 than that, if a judge determines that a piercing of a 20 privilege is appropriate -- Mr. Sutherland's statement 21 yesterday about the ability to pursue a challenge to the 22 highest court in the land, or until the highest court refuses, 23 while technically accurate, ignores the fact that pursuing an If a judge UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10057 But other UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 appeal does not necessarily stay the proceedings at a trial 2 level. 3 Again, something all the trial judges know. A basic understanding of the rules makes it clear and 4 the contrary, again, would cause havoc in every system of 5 justice. 6 it so often, when I'm talking to the government, about 7 piercing a privilege and the ability for a trial judge to 8 review privilege matters, but it stands for the same 9 proposition: All you've got to do is read U.S. v. Bowser. I use Trial judges are first and foremost the place 10 you go when dealing with privilege, because that's where you 11 start. 12 stay the proceedings, I'll stop. 13 And again, if an appellate court wants to step in and Next, a foundational aspect of our system, any system 14 of criminal justice, not unique to the commissions, is that a 15 ruling from a judge at the trial level is binding and resolves 16 the issue, with very few exceptions, and the process continues 17 until and unless stopped by competent authority. 18 A good example is an Article 62 appeal. The 19 government does have some time to file that appeal, and the 20 court will pause. 21 judge's discretion whether the trial judge is going to pause 22 or not pause and wait. 23 Typically writs, well within the trial Superior courts can always step in and stop the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10058 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 process. 2 ability to follow writs, habeas, and of course Article 62 3 appeals in the right instance. 4 They have the ability to do it, and you all have the As we headed here for trial, no writ had been filed 5 and no habeas action had been filed by the defense 6 apparently -- I realize that has changed as of today -- 7 despite the obvious window of time to file those before we got 8 here. 9 The body of rules of everybody involved in this, 10 which I also had the pleasure of reading and applying to the 11 three civilians at issue, plus the chief defense counsel, all 12 require representation continue in any case when a tribunal 13 orders continued representation, even if good cause has been 14 shown on the record. 15 was shown, who granted the excusal, why the excusal was 16 granted. 17 going, you have to keep going, again, until and unless a 18 superior court intervenes. 19 Those rules don't discuss how good cause They all say if a tribunal says you have to keep The same bar rules also provide each of them 20 protections when acting consistent with a court order, i.e., 21 it isn't misconduct for the attorneys to follow the order of a 22 court or a tribunal. 23 Why? The misconduct is when you disobey. Because, again, as you've probably noticed from this UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10059 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 theme, rules to the contrary cause disorder and havoc in any 2 system you've got, and that is exactly what is happening here. 3 Next, the manner of the defense community here has 4 shown flagrant disobedience in the face of, frankly, centuries 5 of precedent to the contrary, and that is a trial court issues 6 orders and you either appeal, you get a stay, or you get 7 assistance from a superior court. 8 9 The bedrock of any system is compliance with court orders, followed by attempting to navigate evidence and appeal 10 for relief. 11 judges, but every lawyer knows you have to follow them almost 12 exclusively, without exception, until another court steps in. 13 Many lawyers don't like rulings from trial Yesterday, to the extent I indicated you waive a 14 privilege by filing something -- I read the record. 15 quite what I said, but that doesn't seem to matter right now. 16 When a person sends e-mails to the chief prosecutor, takes 17 actions that stop a commission in their tracks and ignores 18 orders from the commission, that does subject them to testify. 19 It's not General Baker, I've considered whether you should be 20 found in contempt of these proceedings summarily based upon 21 the following conduct, which occurred in my presence during 22 the commission: 23 One was your willful refusal to obey my order to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10060 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 testify. 2 3 Two is your willful refusal to obey my order to rescind your excusal of the three counsel. 4 I also considered your willful refusal to obey my 5 order to arrange for the travel of Ms. Rosa Eliades and 6 Ms. Mary Spears, two detailed DoD defense counsel, to travel 7 to Guantanamo Bay, Cuba. 8 9 I also considered your willful refusal to obey my order to communicate to Mr. Richard Kammen, the appointed 10 outside learned counsel, that he travel to Guantanamo Bay, 11 Cuba. 12 The facts I witnessed here in open court and in front 13 of the commission I find beyond a reasonable doubt, as I 14 directly witnessed your conduct in the presence of the 15 commission, which is me. 16 I find: One, on 31 October 2017 you willfully 17 refused to obey the commission's order to testify; and two, 18 that on 31 October 2017 you willfully refused to obey the 19 commission's order to rescind your excusal of counsel. 20 I do not find that on 1 November 2017 you willfully 21 refused to obey the commission's order to arrange for the 22 travel of Ms. Rosa Eliades and Ms. Mary Spears to Guantanamo, 23 or that you willfully refused to obey the commission's order UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10061 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to communicate to Mr. Richard Kammen, the appointed outside 2 learned counsel, that he, too, should travel to Guantanamo 3 Bay, Cuba. 4 outside of my presence. 5 Those were done by e-mail with my staff and I would note in that e-mail traffic you recused 6 yourself from your position as chief defense counsel in 7 relation to this case, suggesting you're in a conflicted 8 position and that you did continue to show that you believe 9 court orders are both optional and nonbinding on you. 10 However, the conduct was done outside the hearing and it's not 11 appropriate for a summary contempt proceeding, and so it's 12 done at this point and we're where we're at. 13 For commission proceedings, the only legal basis for 14 a contempt finding, if you read -- which I know many of you 15 have probably spent some time in, in 809, is that you would 16 have had to commit a disorder, General Baker, before the 17 commission. 18 The Rule for Military Commission 809 doesn't really 19 define disorder, nor does the statute. 20 look is case law, military -- the MCM, or the rules in the 21 MCM, and Article 48 of the Uniform Code of Military Justice, 22 to assist with the definition of contempt. 23 So a good place to From 2008 until our current 2016 manual, the power of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10062 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 contempt evolved. 2 that violating orders became a basis for contempt. 3 intentional expansion of the military judge's contempt powers. 4 Additionally, if you go back to 2008, there is a nonbinding 5 discussion, and it says that -- and this is to the Rule of 6 Court-Martial by the way, 809 -- it says neither civilian nor 7 military witnesses refusing to testify can be held in 8 contempt. 9 was removed from the nonbinding, and that's important, 10 One of the most significant additions was It was an By 2016 the language related to military witnesses discussion. 11 Of course, here we have a witness who's here in the 12 courtroom, frankly, who has caused a significant disorder to 13 the process, violating the order to testify under oath. 14 are a different set of facts by far. 15 These So I find, beyond a reasonable doubt, that on 31 16 October 2017 you willfully refused to obey the commission's 17 order to rescind your excusal and that that behavior was 18 contemptuous to the commission and it was in front of the 19 commission. 20 Your refusal to testify on multiple occasions in my 21 presence is also contemptuous and contemplated both by the 22 Manual for Courts-Martial and the Military Commissions Act as 23 an act of contempt and a disorder. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10063 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I find beyond a reasonable doubt that your acts then 2 constituted disorders that disturbed these proceedings, 3 disorders that disturbed these proceedings significantly. 4 I would note that your approval of the withdrawal of 5 counsel, General Baker, has been determined to be an act 6 outside of your authority by this court, and as of yet no 7 superior court has disturbed that. 8 The two DoD civilian defense counsel and the outside 9 learned counsel have chosen to ignore orders to appear before 10 the commission. 11 order from the commission flagrantly and in my presence. 12 I've stated so often, no system of justice can survive if the 13 behavior is tolerated and endorsed. 14 But nonetheless, you refused to follow an As Put another way, your purported excusals of 15 Mr. Kammen, Ms. Eliades and Ms. Spears dated 11 October 2017 16 are null and void, and they have been since my written order 17 on 16 October 2017 and my follow-on written order dated 27 18 October 2017. 19 Mr. Kammen, Ms. Eliades and Ms. Spears remain 20 attorneys of record in the military commission and are ordered 21 to attend all sessions of this commission, unless properly 22 excused by me or an appropriate appellate court. 23 Furthermore, based on the representations in the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10064 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 filings from you, General Baker, to the commission, I find 2 that Mr. Kammen, Ms. Eliades and Ms. Spears were aware of my 3 decisions and willfully chose not to attend these sessions. 4 These representations you made were your choice. 5 filed them, and they remain an obvious basis by which you 6 could be called to testify in this case to explain the good 7 cause and the issues surrounding their purported withdrawals. 8 9 You For the parties, there is a written order forthcoming to Mr. Kammen, Ms. Eliades and Ms. Spears. It's going to 10 direct them to go to the Mark Center in Alexandria, Virginia 11 on 6 November 2017, where they may choose to present arguments 12 as to why they should be released from the representation of 13 the accused different than the arguments I've already heard, 14 and to allow them to continue to represent their client, if 15 they choose to, as these proceedings continue over the next 16 two and a half weeks. 17 they can come down here in person. 18 here. 19 They can do it from the Mark Center, or I can't force them to come Mr. Sutherland -- I keep calling you that, sorry -- 20 Sundel, although you repeatedly indicated yesterday in open 21 court you'd refuse my order to have Brigadier General Baker 22 testify, you were speaking on behalf of, although not 23 representing, General Baker. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10065 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 While you failed to notify the commission of your 2 appearance, you didn't file a request to be heard as a third 3 party. 4 process despite my title clearly as "The Commission" or "Your 5 Honor" or "Judge" or anything else indicating you respect that 6 you're in a courtroom. 7 rules that apply to appearing before the commission; I allowed 8 you to speak yesterday. You managed to refer to me as "Colonel" throughout the 9 And frankly, you made a mockery of the That's on me. And so after I directed you to stop speaking and you 10 did and you sat down, while it's disappointing, concerning 11 conduct, you're not contemptuous; and I'm not finding you in 12 contempt. 13 Lieutenant Piette, I appreciate that you let us know 14 yesterday you were going to file what you were going to file, 15 and I appreciate that a filing was made by 1600. 16 refusing to follow what is clearly a legal order to put 17 something in a formal filing yesterday in my presence is 18 contemptuous conduct, and on its face could be found to be 19 contemptible behavior in the presence of a commission, I'm not 20 going to find you in contempt. 21 with it as we move forward. 22 23 While But I'm not going to put up Again, nobody, nobody believes that you can act that way in a courtroom and there's no repercussions. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10066 None of our UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 licensing authorities think so, none of our supervisory 2 attorneys think so, and thus far no superior court thinks so. 3 But we all make mistakes, and I appreciate that you came along 4 and filed the appropriate pleading. 5 I know your filing indicated you're going to sit and 6 do nothing if we move on, and that is a strategy. 7 strategy that has worked poorly for defense counsel in the 8 past. 9 I hope you talk to your client about it. 10 11 It's a It's a strategy that I wouldn't suggest or recommend. But you're going to do what you want. What we're going to move on to do are going to be 12 things that don't relate to capital sentencing or motions that 13 relate to capital issues. 14 with the things that you're experienced with in your time as a 15 judge advocate, foundations for evidence, cross-examine of 16 witnesses and the like. We are going to continue to move on 17 Congress did not intend for learned counsel simply to 18 vacate the premises, abdicate their responsibilities, stop the 19 process, and yet still be critical for every part of the 20 system, or Congress would have set up a system that would 21 never have a hearing. 22 don't think are appropriate about Congress doing things that 23 are confusing or we might not agree with what they do. And again, we all can make jokes that I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10067 Not my UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 role. 2 When Congress acts, they intend to act. What they 3 say they mean to say. 4 read the legislation, it is my job to interpret it in a manner 5 that makes sense when it's difficult to interpret. 6 pretty longstanding, normal process in any court that I've 7 seen. And when you read their rules and you Again, 8 So before I deal with the sentence and discuss where 9 we're at -- again, I am confident everyone has read Rule 809. 10 First, on Friday we're going to take up the witness who is 11 here related to Appellate Exhibit 327E. 12 questions for the witness, the witness will be released and 13 depart back, I assume, to mainland. 14 If there's no On Monday, 6 November 2017, we're going to deal with 15 any 505 matters related to al Darbi. 16 additional witnesses under 327E, because there are three other 17 witnesses, we'll take those up Monday or throughout next week. 18 I know I ordered four be made available at the request of the 19 defense, as I have now done on 26 occasions -- my count. 20 could be wrong on the numbers -- of witnesses made available 21 at defense request. 22 them next week. 23 And if there are And they're available. So we'll take We're also going to start and work through the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10068 I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 al Darbi cross-examination next week. 2 I guess you can say you have no questions, but he is available 3 for cross-examination, you were here for the direct 4 examination, and you have had the discovery. 5 ask questions. It is a deposition. 6 admissibility. So again, your trial strategy is yours. 7 Again, Defense Counsel, I can't make you We haven't resolved its And after that we have Appellate Exhibit 207, the 8 preadmission of real evidence from the COLE. 9 admission and admissibility of evidence, real evidence, That's simple 10 something every judge advocate understands, frankly in their 11 first trial. 12 And we're going to move forward with that. This is just the defense, by the way, putting on -- I 13 mean, this is just the prosecution putting on their side of 14 this. 15 witnesses in the future and fight the foundational elements of 16 it. 17 and I know you'll do whatever you think is best. 18 The defense counsel will have every opportunity to call But again, they're available for some cross-examination, If there's no questions for Mr. al Darbi next week, 19 we're going to move to the 207 stuff reasonably quickly, so 20 make sure that -- Trial Counsel, for the government, let's 21 make sure we're ready to move smartly through the matters that 22 we have put on notice for. 23 docketing order we're not going to handle, the other motions The other stuff I put on the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10069 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 and the like. 2 That is enough. But I'll tell you, when we come back in January, 3 because we have time scheduled in January, we're going to move 4 on through continued preadmission matters that the government 5 has put us on notice that they want to preadmit. 6 going to take up the four ordered CIA witnesses, no matter 7 where we are at that point with disobedience of three civilian 8 defense counsel. 9 And we're I hope they choose to attend. If learned counsel by then is deciding to participate 10 and has stopped violating the order of the court, we may 11 change what January looks like and what we deal with, of 12 course. 13 we're going to do in January, more preadmission from the 14 government. 15 they'll have the opportunity to attack the foundation as we 16 move forward, and they're not losing that opportunity. 17 But if we're sitting where we are today, that's what And again, as I've said to the defense all along, So just for the public, the way contempt proceedings 18 work under 809, the convening authority ultimately has to 19 approve, as they do any conviction, my finding of contempt, or 20 disapprove. 21 sentence I adjudge. 22 with and if there's designation of a place of confinement by 23 the convening authority, and here there is. They also have to approve or disapprove the However, confinement begins immediately UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10070 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The convening authority communicated that the place 2 of confinement, if there is any confinement, is going to be 3 the on-island quarters of Brigadier General Baker. 4 not be allowed to depart those quarters until the period of 5 confinement ends, the sentence is disapproved, or a new 6 location is designated. 7 Internet and the telephone, according to the convening 8 authority. 9 He will He will be allowed to use the But a place of confinement has been designated. And so the way the rule reads and works, and it's not 10 unique, is that confinement, if it's adjudged, begins 11 immediately. 12 this case with anybody. 13 discussed it with them, I haven't highlighted it to anybody, 14 and I haven't told the convening authority what my plan was. 15 What I directed my staff to do is follow the process, which I 16 do so often, follow the process, and they did. 17 I have had no conversations about my sentence in That includes my staff. I haven't General Baker -- and again, this is -- I don't enjoy 18 this. 19 sentencing case with an accused. 20 one should enjoy imposing sentences on anybody. 21 be the most difficult thing you ever do. 22 unfortunate, because it could have been avoided. 23 nonetheless, here we are. I don't enjoy it at my day job when I'm going through a I tell the trial judges no And it's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10071 It ought to But UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 So, Brigadier General, this proceeding, this 2 commission, believing it does have jurisdiction over you based 3 on a clear reading of the rules and based on your contemptible 4 conduct, you're held in contempt, and you are sentenced to pay 5 the United States a fine in the amount of $1,000 and to be 6 confined for a period of 21 days. 7 I will do all I can to get the record to the 8 convening authority so they can take action or not take 9 action, disapprove or approve my sentence. That's all I can 10 do. 11 run confinement here, separate from the detainee confinement, 12 obviously, the regular confinement here on Naval Base 13 Guantanamo Bay. 14 I've discussed with the bailiff here and the people who And so when I recess, General Baker, the bailiff is 15 going to escort you back to this back hallway. 16 officials will be back there to deal with your transport and 17 then to bring you to your room, where you'll stay until such 18 time as the convening authority acts or designates a different 19 place of confinement. 20 Confinement That's where we're at. I know there's a writ filed. We'll deal with it when 21 we hear anything from that court. 22 from that court, Friday morning 0900, we'll deal with just one 23 witness, and it's the witness for 327E, as I mentioned. If we don't hear anything UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10072 And UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 then we'll move into next week with al Darbi's deposition, the 2 classified issues, and then the 207 issues. 3 4 5 Trial Counsel, is there anything else for this proceeding? TC [MR. MILLER]: Nothing from the government, Your Honor, 6 other than to reiterate that these proceedings were 7 transmitted by closed-circuit television to the locations 8 authorized in your order. 9 MJ [Col SPATH]: I appreciate that. 10 TC [MR. MILLER]: 11 MJ [Col SPATH]: 12 13 Nothing further. Just a moment. Thank you. Thank you, sir. And then, Defense Counsel, anything else for these proceedings? DDC [LT PIETTE]: No, Your Honor, other than that in 14 addition to the people who were here yesterday, we also have 15 Mr. Marc Dolphin, our investigator. 16 MJ [Col SPATH]: 17 And I appreciate that. And I know -- I know you understand orders from the 18 commission. 19 will do what you will do. 20 that you filed yesterday so that we didn't have other issues 21 with you. 22 really have tried to work through this in an open-minded, 23 reasonable manner. It is meant with your best interests. I meant what I said. I know you I appreciate I don't know if I would have done that or not. I But I appreciate that, and we'll see where UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10073 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 we are. 2 DDC [LT PIETTE]: 3 MJ [Col SPATH]: Yes, Your Honor. All right. General Baker, the bailiff is 4 going to escort you back here and then move you to another 5 location while we await the -- I don't know how confinement 6 works at Guantanamo Bay, Cuba, because I have never dealt with 7 regular confinement at Guantanamo Bay, Cuba, obviously. 8 they are working through it. 9 So But they, too, have heard the location, which is your 10 room, nowhere else. 11 let us know if they change the location that they have 12 designated for any period of confinement and if they 13 disapprove or approve the contempt proceeding, which we will 14 get that record to them as quickly as we can. 15 16 17 And again, the convening authority will See you all Friday morning at 9:00. We're in recess. [The R.M.C. 809 session recessed at 1250, 1 November 2017.] [END OF PAGE] 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10074