Case 1:17-cv-02311-RCL Document 4 Filed 11/03/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOHN G. BAKER,
Brigadier General, United States Marine Corps
Petitioner,
v.

Civil Action No. 17-CV-2311 (RCL)

VANCE SPATH
Colonel, United States Air Force, et al.
Respondents.

RESPONDENTS’ STATUS UPDATE REGARDING MATTERS RAISED AT
NOVEMBER 2, 2017 HEARING AND OPPOSITION TO PETITION FOR WRIT OF
HABEAS CORPUS
On November 2, 2017, Petitioner BG John G. Baker filed a petition for writ of habeas
corpus along with a supporting memorandum and a request for expedited emergency
consideration. See ECF No. 1-2. Undersigned counsel for Respondents obtained a copy of
Petitioner’s filings at approximately 12 p.m. on November 21 and, in accordance with the Court’s
Minute Order, appeared for a hearing on the petition at 5 p.m. that same day. In light of the
expedited nature of the proceedings in this case, Respondents were not in a position to submit a
written response prior to the hearing. Although Respondents recognize that the Court took this
matter under submission at the conclusion of the hearing and stated its intent to issue a decision at
the hearing scheduled for November 3 at 2 p.m., Respondents respectfully request the opportunity
to provide the Court with a concise written statement of Respondents’ position along with the

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To Undersigned Counsel’s knowledge, the Petition has yet to be served on the United States
Attorney as required by Federal Rule of Civil Procedure 4(i)(1)(A)(i).
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additional, updated information the Court requested, and Respondents have obtained, since the
conclusion of the November 2 hearing regarding the status of the ongoing review by the
Convening Authority of the military commission judge’s decision finding Petitioner in contempt
of court.
By way of update, the Convening Authority review process set forth in Rules for Military
Commission (R.M.C.) 809, 1106, and 1107 is currently underway. In accordance with Rule 1106,
the Legal Advisor to the Convening Authority has prepared a recommendation as to the action to
be taken by the Convening Authority and that recommendation was served on Petitioner on the
evening of November 2. Rule 1106 permits Petitioner to respond to the Legal Advisor’s
recommendation by submitting written “corrections or rebuttal to any matter in the
recommendation” that Petitioner believes “to be erroneous, adequate, or misleading, and
[Petitioner] may comment on any other matter.” R.M.C. 1106(e)(4). Following Petitioner’s
review and comment, the Legal Advisor will finalize his recommendation and provide it, along
with a record of the contempt proceeding, to the Convening Authority for prompt action. See
R.M.C. 809(d); 1106(a).
The Department of Defense has advised that the Convening Authority’s review in this
instance includes both the sentence and finding of contempt. See R.M.C. 809(d); 1107(c).
Although Rule 809(d) provides that the “Convening Authority may approve or disapprove all or
part of the sentence,” other Rules allow for a broader review by the Convening Authority.
Indeed, Rule 1107(c) provides that the “Convening Authority may, in the Convening Authority’s
sole discretion: [c]hange a finding of guilty . . . [or] [s]et aside any finding of guilty.” Here, the
Convening Authority has elected to review both the sentence imposed on Petitioner, as well as the
military commission judge’s finding of contempt, for legal error.

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While this review process is ongoing, Petitioner has the right under the Rules for Military
Commission to seek from the Convening Authority deferment of his sentence to confinement.
See R.M.C. 809(e); 1101(c). “A sentence of confinement pursuant to a finding of contempt shall
begin to run when it is adjudged unless deferred, suspended, or disapproved by the convening
authority.” R.M.C. 809(e). Id. Petitioner, however, has not submitted a request for deferment to
the Convening Authority.
As explained in the November 2 hearing, Respondents’ position is that the Court should
abstain and otherwise decline to exercise habeas jurisdiction in light of the review process
discussed above. To reiterate the points raised by Respondents at the November 2 hearing, as
well as other relevant matters:
First, Petitioner was properly held in contempt, including for his actions undertaken in
the presence of the military judge. Under 10 U.S.C. § 950t(31) concerning “offenses triable by
military commission,” a “military commission under this chapter may punish for contempt any
person who uses any menacing word, sign, or gesture in its presence, or who disturbs its
proceedings by any riot or disorder.”
Contrary to Petitioner’s argument, the phrase “[a]ny person” as used in § 950t(31) is not
equivalent to the phrase “[a]ny person subject to this chapter,” which 10 U.S.C. § 948c (Persons
Subject to Military Commissions) defines as “alien unprivileged enemy belligerents.” Although §
950t(1)-(30) define offenses in terms of those for which “[a]ny person subject to this chapter,”
may be tried, § 950t(31) permits “any person” to be “punish[ed] for contempt.”
Furthermore, the military judge’s exercise of contempt power was authorized under the
Military Commissions Act and the Rules for Military Commissions. The reference to “military
commission” in the Act and the Rules, including in R.M.C. 809 which sets out certain procedures

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concerning the commission’s exercise of contempt power granted in § 950t(31), see R.M.C.
809(a), does not limit the military judge’s ability to find a person has committed the offense of
contempt. R.M.C. 501(a)(2) concerning the composition of a military commission provides, in
pertinent part, that “a capital military commission shall consist of a military judge and not less
than twelve primary members.” Further, the definition section of the Rules for Military
Commissions defines a “military commission” to include: “(A) The military judge and members
of a military commission; or (B) The military judge when a session of a military commission is
conducted without members under R.M.C. 803.” See R.M.C. 103(a)(21)
In light of this authority, there is no basis for Petitioner’s argument that the term “military
commission” as used in R.M.C. 809 excludes the military commission judge. Indeed, R.M.C.
801(b) expressly provides that “The military judge may… (2) Subject to R.M.C. 809, exercise
contempt power.” (emphasis added). Further, R.M.C. 809(c) states: “The military judge shall in
all cases determine whether to punish for contempt and, if so, what the punishment shall be….”
Thus, the reference to “military commission” in R.M.C. 809 includes the military judge, acting in
the absence of the other “members” who would eventually be seated in the commission
proceeding. See also 10 U.S.C. § 949d(a), which provides:
Sessions Without Presence of Members.—
(1) At any time after the service of charges which have been referred for trial by
military commission under this chapter, the military judge may call the military
commission into session without the presence of the members for the purpose of—
...
(B) hearing and ruling upon any matter which may be ruled upon by the
military judge under this chapter, whether or not the matter is appropriate for later
consideration or decision by the members . . . .

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Accordingly, a military judge may exercise contempt power without the presence of the
members as was done in this matter.2
Here, the military judge conducted a summary disposition proceeding under R.M.C.
809(b)(1) for a contempt directly witnessed by the judge, including Petitioner’s refusal to obey
the military judge’s direct order to testify, a refusal that the military judge characterized as
“disorders that disturbed these proceedings significantly” warranting a finding of contempt under
§ 950t(31). See Unofficial / Unauthenticated Transcript of Proceedings (Nov. 1, 2017) at 1006064.3 The military judge’s exercise of his contempt authority in this context is consistent with
long-standing judicial authority that dates back to the founding of this Nation. See Ex parte

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Petitioner also argues that in 2011 Congress amended the contempt provision of the Uniform
Code of Military Justice (“UCMJ”), 10 U.S.C. § 848, to prohibit military commission judges
from exercising general contempt power. See Pet’r’s Mem. at 13. Petitioner greatly overstates
the meaning of this amendment. The law that Congress passed in 2011 (Ike Skelton National
Defense Authorization Act, Pub. L. No. 111-383, § 542, 124 Stat. 4137) was merely a
reaffirmation of the same provision that Congress included in the Military Commissions Act of
2006 (“2006 MCA”), Pub. L. No. 109-366 (Oct. 17, 2016), the original statute that created the
current military commission and related process. Section 4 of the 2006 MCA contained a
number of conforming amendments to make clear that the newly-enacted statute governing
military commissions would not automatically employ or be bound by certain rules governing
courts-martial. Accordingly, Congress excluded the application of various provisions of the
UCMJ from the 2006 MCA, including the contempt provision (section 848), where those
specific subjects were otherwise addressed in the 2006 MCA. See id. (“Sections 821, 828, 848,
850(a), 904, and 906 (articles 21, 28, 48, 50(a), 104, and 106) are amended by adding at the end
the following new sentence: ‘This section does not apply to a military commission established
under chapter 47A of this title.’). Thus, contrary to Petitioner’s argument, the 2011 amendment
added nothing new to the law as it had already existed since 2006 and did not change anything
with respect to the contempt authority of military commission judges under the MCA. Rather,
the purpose of the 2011 amendment was simply to amend the contempt rules for UCMJ
proceedings, specifically to raise the contempt fine to $1000 from $100, add additional conduct
punishable by contempt in UCMJ proceedings, and expand the contempt authority to the military
appellate courts and the Court of Appeals for the Armed Forces. See Pub. L. No. 111-383, §
542. Accordingly, there is no basis to conclude that Congress, in passing an amendment entitled
“Enhanced Authority to Punish Contempt in Military Justice Proceedings,” intended to strip
military commission judges of their contempt authority. Id.
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For the Court’s convenience, the transcript of proceedings conducted on October 31 and
November 1 is attached as Exhibits 1 and 2.
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Robinson, 86 U.S. (19 Wall) 505, 510 (1873) (“The power to punish for contempts is inherent in
all courts; its existence is essential to the preservation of order in judicial proceedings, and to the
enforcement of the judgments, orders, and writs of the courts, and consequently to the due
administration of justice. The moment the courts of the United States were called into existence
and invested with jurisdiction over any subject, they became possessed of this power.”). The
consequence of Petitioner’s argument here, that military commission judges have no power to
summarily find the persons appearing before them in contempt, would render military
commission judges powerless to ensure order in the courtroom or to control uncooperative
attorneys or witnesses. The absence of such contempt power could lead to chaos and disruptions
in the courtroom without any way for the military commission judges to immediately control such
disruptive activity. Both common sense and over 200 years of precedent do not support
Petitioner’s view.
Petitioner’s remedies with respect to the military judge’s action finding Petitioner in
contempt and sentencing him, properly lie within the military commission process—first, with the
Convening Authority, as discussed above, and then through review in the United States Court of
Military Commission Review and the D.C. Circuit, through mandamus, if not direct appeal. See
supra; see also 10 U.S.C. § 950c (providing for appellate review of final decisions of military
commission including findings of guilty with respect to offenses). Further, to avoid
implementation of his sentence pending such review, Petitioner has the option of seeking
deferment of his confinement, which he has not done. See supra: R.M.C. 1101(c).
In light of potential alternative ways in which Petitioner could seek relief, this Court
should abstain from exercising habeas jurisdiction over this matter. In In re Al-Nashiri, 835 F.3d
110 (D.C. Cir. 2016), the D.C. Circuit held that abstention principles apply with full force to

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habeas challenges to military commission proceedings under the MCA. The court explained that
abstention is warranted because the MCA and the Rules for Military Commissions provide
sufficient process and because important interests are served by allowing that process to proceed
uninterrupted. That conclusion would be particularly appropriate here, where the Convening
Authority's review is currently ongoing and where allowing the military commission process to go
forward serves the important interest in enabling the military commission to control the
proceedings before it. See also Munaf v. Geren, 553 U.S. 674, 693 (2008) (“[h]abeas corpus is
governed by equitable principles”; habeas court “is not bound in every case to issue the writ” but
must determine in a case whether the power of habeas corpus “ought to be exercised”).
Indeed, as relevant here, the Supreme Court has recognized that traditional abstention
“principles apply to a case in which the . . . contempt process is involved.” Juidice v. Vail, 430
U.S. 327, 335 (1977) (“we think the salient fact is that federal-court interference with the State’s
contempt process is an offense to the State’s interest” and concluding that a federal district court
should have abstained from hearing a collateral challenge by plaintiff found in contempt by a state
court for refusing to comply with subpoenas). As explained above, Petitioner can seek deferment
of confinement while the Convening Authority considers the military judge’s findings and
sentence and while other review options are pursued. Further, even assuming the Convening
Authority ultimately approves the sentence and/or the contempt finding, the proper course of
action is for Petitioner to seek relief before the higher courts that Congress has designated as the
proper forums to address military commission issues: the United States Court of Military
Commission Review and the Court of Appeals. See 10 U.S.C. §§ 950f; 950g. By vesting
jurisdiction in these courts, Congress has expressed its view that this Court is not the proper
forum for Petitioner to seek review of military commission decisions. Cf. Telecommunications

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Research & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) (“even where Congress has not
expressly stated that statutory jurisdiction is ‘exclusive’ . . ., a statute which vests jurisdiction in a
particular court cuts off original jurisdiction in other courts in all cases covered by that statute”)
(footnote omitted).
For these reasons, the petition for habeas corpus should be denied.

Dated: November 3, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
Civil Division
JENNIFER R. RICKETTS
Director
Federal Programs Branch

/S/ Andrew I. Warden
TERRY M. HENRY
ANDREW I. WARDEN
Attorneys
United States Department of Justice
Civil Division Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel.: (202) 616-5084
Fax: (202) 616-8470
E-mail: Andrew.Warden@usdoj.gov

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