OFFICE OF THE SECRETARY OF DEFENSE
OFFICE OF MILITARY COMMISSIONS
4800 MARK CENTER DRIVE
ALEXANDRIA, VA 22350-2100

 

November 21, 2017

MEMORANDUM FOR BGEN JOHN G. BAKER, CHIEF DEFENSE COUNSEL
FROM: CONVENING AUTHORITY
SUBJECT: ACTION ON CONTEMPT PROCEEDINGS

1. have reviewed and considered the record of trial, your subsequent submissions, and the
recommendation of my Legal Advisor. Accordingly, in the contempt proceedings against
Brigadier General John G. Baker, United States Marine Corps, Military Commissions Defense
Organization, I have determined that the ?ndings of the military judge are correct in law and
fact, and therefore leave undisturbed the findings of contempt against you. I hereby remit the
unexecuted con?nement term and the ?ne. I am forwarding the ?ndings and record of
proceedings to the appropriate authority overseeing your service as a Judge Advocate within the
Department of the Navy, the Standards of Conduct Of?ce, and the Staff Judge Advocate to
the General Counsel?s Of?ce, and the Commandant of the United States Marine Corps for
an administrative ethics review.

2. BACKGROUND

a. On December 23, 2008, Mr. Richard Kammen was appointed as the accused?s Outside
learned counsel in the case of United States v. The detailing notice served as a notice
of appearance and agreement on behalf of the accused. Mr. Kammen also signed an af?davit
and agreement acknowledging understanding and agreement with the Military Commissions Act
of 2006, the Manual for Military Commissions, and all military commissions regulations, orders,
instructions, and directives applicable to trial by military commissions. Speci?cally, Mr.
Kammen agreed to comply with all applicable regulations and rules for counsel, including any
rules of court governing proceedings, and agreed that he would ?be well prepared and will
conduct the defense zealously, representing the accused throughout the military commission
process, from the inception of my representation through the completion of any post-trial
proceedings as detailed in 10 U.S.C. 950a?950j and R.M.C. 1101-1209.? Mr. Kammen
further asserted that he would ?work cooperatively with [detailed counsel] to ensure coordination
of efforts and to ensure such counsel is capable of conducting the defense independently if
necessary.?

b. On October 17, 2016, Appellate Exhibit (AE) 339E was ?led, noting that on November
18, 2015, Ms. Rosa A. Eliades was assigned as assistant defense counsel in the case of United
States v. Similarly, AE 339F was ?led, which stated that Ms. Mary E. Spears was
detailed as a civilian assistant defense counsel in the same action.

c. On June 24, 2017, the defense ?led AE a notice to the commission that it had
?led a classi?ed motion to ?Advise the Accused of Potential Government Intrusions into
Attorney?Client Communications.? On July 2017, the military judge denied the motion

stating, am statutorily prohibited from ordering the disclosure of classi?ed information, which
everybody knows.? See Record of Trial, 10037.

d. On July 13, 2017, the defense ?led AE 369PP, a notice to the commission that the
defense had ?led a classi?ed motion to compel production of discovery materials related to the
potential intrusion into attomey-client communications. (On September 20, 2017, the military
judge ?led AE which was notice to the parties of his classi?ed ruling on this defense
motion. The military judge stated the ruling denied the defense motion after reviewing ?all of
the information submitted thus far on the issue, both classi?ed and unclassi?ed, and I found the
defense failed to carry its burden of proof to warrant additional disclosure.? See Record of Trial,
10037.)

e. On July 14, 2017, the defense ?led AE 369RR, a notice to the commission that it had
?led a classi?ed motion for an evidentiary hearing or, in the alternative, abatement of the
proceedings. (On September 20, 2017, the military judge denied this defense motion in AB
369222, stating, ?again after consideration of all the classi?ed and unclassi?ed ?lings and the
in?court representations and a classified declaration submitted by the government, I issued
Appellate Exhibit 369222 denying the motion and ?nding there wasn't any basis to ?nd there
had been an intrusion into attorney?client communications between this accused and this defense
team.? See Record of Trial, 10038.)

f. On August 14, 2017, the defense ?led AE a notice to the commission that it
had ?led a classi?ed motion to allow defense counsel to meet with their client in the courtroom
and to ensure his right to privileged attorney-client communications. On October 25, 2017, the
military judge ?led AE 3690000, denying the defense motion. In that ruling, the judge noted,
certainly didn't object to the defense utilizing the courtroom, or frankly any room, for
attorney-client meetings as that is something that they need to work out with the con?nement
facility. It is not something for me to be involved in in most instances, and I have stayed out of it,
as you all know, because I don?t run this facility. I would note there have been many meetings
here in the ELC between the defense counsel and their client in this case.? See Record of Trial,
pp. 10033-39.

g. On October 6, 2017 Mr. Kammen, Ms. Eliades, and Ms. Spears submitted a request to
you, to withdraw from their representation of the accused, relying in signi?cant part on the June
24, 2017 memorandum and an October 5, 2017 ethics opinion from Professor Ellen
On October 1 1, 2017, you noti?ed Mr. Kammen, Ms. Eliades, and Ms. Spears
that you had accepted their request to withdraw from representing the accused, and you released
them for ?good cause shown on the record,? citing R.M.C. On October 13, 2017 the
defense provided notice to the commission of this purported withdrawal. See Record of Trial p.
10039.

 

Ms. Yaroshefsky was called to testify about her opinion, but declined to comply with a subpoena and ?led a writ in
the Southern District ofNew York {case I :l7-cv-3718-GHW) in an effort to avoid being compelled to testify. In
that proceeding, the district courtjudge refused to quash the subpoena, inter alto, that Ms. 1'r?aroshefsky failed to
make a clear showing of likelihood of success on the merits that would justify granting ofa preliminary injunction.

Ix.)

h. On October 16, 2017, the detailed defense counsel ?led Appellate Exhibit 389, a motion
to abate proceedings pending the detailing of a new learned counsel. See Record of Trial, p.
10040. On the same day, the commission iSSued Appellate Exhibit 389A, which reiterated that
Mr. Kammen, Ms. Eliades, and Ms. Spears remained counsel of record in the case and ordered
the three counsel to appear at the next scheduled hearing of the commission unless excused by
the military judge. The commission also invited you to ?le pleadings as to your perceived
authority to unilaterally and without review excuse counsel, and the commission set a
compressed brie?ng schedule. From October 20-26, 2017, both you and the government ?led
pleadings responsive to Appellate Exhibit 389A.

i. On October 27, 2017, the commission issued AE 389F denying the abatement motion and
speci?cally ?nding that: 1) no good cause existed to warrant the excusal of Mr. Kammen, Ms.
Eliades or Ms. Spears; 2) no evidence had been presented to demonstrate intrusions in this case
affecting this accused which would ethically require withdrawal or disquali?cation of outside
appointed learned counsel; and 3) the excusal of outside appointed learned counsel at that stage
of the proceedings would prejudice Mr. al Nashiri?s due process rights See Record of Trial, pp.
10039-40.

j. In the commission session on October 31, 2017, the military judge directed you to rescind
your memo releasing civilian defense counsel and to be sworn in to testify. You refused to
rescind the memo or to testify, claiming privilege. See Record of Trial pp. 10051 10060.2

it. On November 1, 2017, summary contempt proceedings were held under 10 U.S.C. 950t
in accordance with R.M.C. 809(b)(1) and 809(c). See Record of Trial p. 10065. During the
contempt proceedings, the military commission found contempt beyond a reasonable doubt on
two occasions, both on October 31, 2017, as follows: 1) You willfully refused to obey the
commission?s order to testify and 2) you refused to obey the commission?s order to rescind your
excusal of counsel. The commission found beyond a reasonable doubt that your acts
?constituted disorders that disturbed these proceedings, disorders that disturbed these
proceedings signi?cantly.?

1. The military commission sentenced you to be ?ned $1,000 and to be con?ned for 21
days.3 On November 3, 2017, the Convening Authority deferred the remainder of your
con?nement until ?nal action was taken on the contempt ?ndings and sentence.4 See
Attachment. Pursuant to the R.M.C. and due process, the Convening Authority invited you to
submit for his consideration any written matters including any allegations of errors, any portion
of the record of trial, matters for mitigation, and clemency recommendations. In addition, he 
invited you to make a personal statement to him, if you wished.

 

3 Mr. Kamrnen ?led a writ of habeas corpus in [ndiana and did not attend the proceedings.

3 The Convening Authority set the place ofcon?nement as your quarters on NSOB, with access to telephone,
intemet, cable television, and all your lodging accommodations, to include unlimited requests for food or beverages.
After entry ofthe contempt ?nding and sentence, you ?led a writ of habeas corpus with the United States District
Court for the District of Columbia seeking immediate release from the contempt punishment (Case a :17-Cv-

0231 The district court has retainedjurisdiction in this matter pending the ?nal order of the Convening
Authority.

m. On November 9, 2017, your attorney, Col Jonathan W. Hitesman, submitted matters on
your behalf for my consideration in accordance with R.M.C. 1105. In your matters you asserted
the imposition of the contempt ?ndings and sentence were unlawful as follows:

i. Contempt cannot be adjudged for violation of a judge?s order;
ii. The M.C.A. does not authorize unilateral contempt punishments;
Summary contempt procedures are not authorized;
iv. The military judge abused his discretion by utilizing summary contempt proceedings;
v. The military judge had no authority to issue any orders to BGen Baker;
vi. The military commission had no personal jurisdiction over BGen Baker.

3. The matters are sui generis and matters of ?rst impression for the Of?ce of Military
Commissions. The issues break down into two baskets a) the contempt of court questions,
and b) the underlying res, the attorney client con?dentiality concern. The contempt of court
question raises the following fundamental discussions: 1) the authority of the judge to ?nd
contempt; 2) whether the actions of BGen Baker rose to the level of contempt; 3) options BGen
Baker had to avoid contempt ?ndings or sentence; and 4) the appropriateness of the penalty. The
underlying attorney?client con?dentiality issue raises three concerns: 1) the infringement of
privileged communications; 2) the authority to release defense counsel for good cause, and
?nally, 3) the path forward. Each of these issues will be addressed in turn.

1. Contempt of Court Issues
i. Authority of Judge to Find Contempt

4. Your written submission challenged the authority of the military commission judge to
hold contempt proceedings summarily. Concerning the contempt powers of a military
commission, 10 United States Code 950t, para. 31 states that a military commission may
punish for contempt ?any person who uses any menacing word, sign, 0r gesture in its presence,
or who disturbs its proceedings by any riot or disorder.? The term ?disorder? is not de?ned in
the M.C.A., the Rules for Military Commissions, the Regulation for Trial by Military
Commission, or the Military Commissions Trial Judiciary Rules of Court. However, the
language of the Code section is nearly identical to that of Article 48 of the Uniform Code of
Military Justice (U.C.M.J.) prior to the amendment in 2011. See Act of May 5, 1950,
ch. 169, 1 (Art. 48), 64 Stat. 107, 123 court-martial, provost court, or military commission
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 

5. R.M.C. 309 states that a military commission may exercise contempt power granted
under 10 U.S.C. 950t. When conduct constituting contempt is directly witnessed by the
commission, the conduct may be punished summarily, but a statement of facts must be recited
for the record. R.M.C. 809(c) speci?cally outlines that the military judge determines whether to
punish for centempt and the quantum of the punishment. R.M.C. 809(d) mandates that the record
of the contempt proceeding must be part of the record of trial and forwarded to the Convening
Authority for review. The Convening Authority ?may approve or disapprove all or part of the
sentence. The action of the Converting Authority is not subject to further review or appeal.?

6. Per R.M.C. 809(e), the maximum sentence for a ?nding of contempt shall not exceed
con?nement for 30 days and a ?ne of $1,000. A sentence of con?nement in a place designated
by the Convening Authority begins to run when it is adjudged unless deferred, suspended, or
disapproved by the Convening Authority. A ?ne does not become effective until ordered
executed by the Convening Authority.

7. Courts of law traditionally have held contempt power, particularly within the courtroom
itself. A ?court must act instantly to suppress disturbance or violence or physical obstruction or
disrespect to the court when occurring in open court. There is no need of evidence or assistance
of counsel before punishment, because the court has seen the offense. Such summary vindication
of the court's dignity and authority is necessary. It has always been so in the courts of the
common law and the punishment imposed is due process of law.? Cooke v. U?m?red Stores, 267
US. 51?, 534-35 (1925). Unless an ?open threat to the orderly procedure of the court and such a
?agrant de?ance of the person and presence of the judge before the public in the ?very hallowed
place of justice,? as Blackstone has it, is not instantly suppressed and punished, demoralization of
the court?s authority will follow." 1d. at 536.

8. Based upon a review of the applicable case law, statutes, regulations, and the facts
involved in this contempt proceeding, I ?nd that the judge had ample authority and opportunity
to evaluate your actions and ?nd you in contempt.

ii. Whether Actions by BGen Baker Rose to the Level of Contempt

9. The militaryjudge issued two orders, the denial of which served as the basis of his
contempt ?nding: 1) The failure to rescind the memorandum releasing civilian counsel
representing Mr. Al-Nashiri and 2) the failure to take the stand as ordered to testify as a witness.

10. A military judge has the authority to issue orders to reveal information, even if counsel
believes it to be privileged. United States v. Bowser, 73 MJ. 889 (A.F.C.C.A. 2014) (?Trial
counsel has an obligation to "comply with all orders and directives of the court 
Short of some completely unusual circumstances not present here, the Government simply does
not have the authority to choose which orders of a military judge it will follow and which ones it
will not, at least not without facing the threat of remedial action or even punishment?).

11. As you noted in your written matters, the military judge stated on the record that ?your
purported excusals of Mr. Kammen, Ms. Eliades, and Ms. Spears dated 1 1 October 2017 are null
and void, and they have been since my written order on 16 October 2017 and my follow-on
written order dated 27 October 2017.? See Transcript p. 10064. I agree the military judge alone
possessed the authority to ?nd good cause on the record to release defense counsel. 1 also ?nd it
is well established in law that your refusal to follow the judge?s order to take the stand to testify
as a witness constituted contempt of court.

 Options to Avoid Contempt Finding or Sentence

12. In evaluating the contempt issues involved, I have also reviewed the various options that
were available to alleviate the current situation. For example, at the outset, the military judge
ruled in AB 389F that your memorandum purporting to release civilian counsel representing Mr.
Al Nashiri was null and void. At thatjuncture, you could have rescinded your original order, but
chose not to. While it is arguable whether the military judge possessed the authority to order you
to rescind your memorandum, the prudent course of action would have been to acknowledge the
judge?s authority to override a determination of law that was made.

13. Second, the military judge ordered you to be sworn as a witness and testify on the stand.
Although you, or alternately through counsel purporting to represent you andfor the Military
Commission Defense Organization, claimed various privileges, it was not within your rights to
refuse to take the stand and raise privileged claims at that time. Your failure to recognize the
rule of law, accede to ?rmly established legal precedent which required you to raise objections
on privilege grounds while in the witness box, placed you squarely in the realm of contemptuous
behavior. The ?nding of contempt against you on this ground may well have been avoided if
you had not chosen a course at odds with basic tenets of military and civil jurisprudence and
taken the stand as a witness to assert your privileges.

14. Third, once the contempt ?ndings against you were rendered, you possessed the right to
request of me deferment of your con?nement. This option was reiterated by Department of
Justice attorneys in their ?ling in opposition to your Federal writ of habeas.5 You elected not to
exercise this clemency option, an option 1 instead granted sun Spears in the best interests of the
military commissions process.

15. Finally, you may seek legal redress to the United States Court of Military Commission
Review on issues of law if you believe that you were treated unlawfully by the military
commission. To my knowledge, you have not attempted to exhaust this remedy and ?le an
appeal with the United States Court of Military Commissions Review, as suggested by the
military judge on the record. In sum, there were many instances from the inception of this issue
which you could have chosen which likely would have avoided the point at which we are at
today.

iv. Appropriateness of Contempt Penalty

16. With regard to the sentence of a $1,000 ?ne and con?nement for 21 days, I note that you
have spent two days of the con?nement term while restricted to your quarters in the
Expeditionary Legal Complex. As you know, I deferred the remainder of con?nement until a
?nal action was taken. Having now had the opportunity to review the facts, circumstances, and
law surrounding the contempt proceedings, 1 ?nd that imposition of the remainder of the

 

5 "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 con?nement. See R.M.C. 309(e); 101(c). sentence
of con?nement pursuant to a ?nding of contempt shall begin to run when it is adjudged unless deferred, suspended.
or disapproved by the convening authority." R.M.C. 809(e). M. Petitioner, however, has not submitted a request for
deferment to the Convenin Authority." See Respondent?s Status Update, p. 4, case it 17-CV-231 1.

sentence of con?nement would have no signi?cant deterrent or rehabilitative effect. Therefore, I
remit the remainder of the sentence of con?nement the military judge imposed. With regard to
the ?ne, balancing the need and authority of the military judge to maintain good order in the
courtroom with the ineffectiveness of a ?ne to deter future similar conduct, I am remitting the
fine.6 In addition, due to your conduct, I am forwarding the ?ndings and record of proceedings
to the appropriate authority overseeing your service as a Judge Advocate within the Department
of the Navy, the United States Marine Corps, and the General Counsel of the Department of
Defense for an administrative ethics review.

II. Underlying Attorney-Client Con?dentiality Issues
i. Protection of Privileged Communications

17. The military judge reviewed all the ?lings of defense counsel in this case, both classi?ed
and unclassi?ed, concerning the possible prejudice to the right of the attorneys to speak with
their client con?dentially and without unauthorized electronic monitoring. The military judge
denied the defense motion after reviewing ?all of the information submitted thus far on the issue,
both classi?ed and unclassi?ed, and I found the defense failed to carry its burden of proof . . 

18. On July 14, 2017, the defense ?led AE 369RR, a notice to the commission that it had
?led a classi?ed motion for an evidentiary hearing or, in the alternative, abatement of the
proceedings. On September 20, 2017, the military judge denied this defense motion in AB
369222, stating, ?again after consideration of all the classi?ed and unclassi?ed ?lings and the
in-court representations and a classi?ed declaration submitted by the government, I issued
Appellate Exhibit 369222 denying the motion and ?nding there wasn't any basis to ?nd there
had been an intrusion into attomey-client communications between this accused and this defense
team."

19. On August 14, 2017, the defense ?led AE a notice to the commission that it
had ?led a classi?ed motion to allow defense counsel to meet with their client in the courtroom
and to ensure his right to privileged attorney-client communications. On October 25, 2017, the
military judge ?led AE 3690000, denying the defense motion. In that ruling, the judge noted,
certainly didn't object to the defense utilizing the courtroom, or frankly any room, for
attorney-client meetings as that is something that they need to work out with the con?nement
facility. It is not something for me to be involved in in most instances, and I have stayed out of it,
as you all know, because I don?t run this facility. I would note there have been many meetings
here in the ELC between the defense counsel and their client in this case."

20. On November 17', 201?, the military judge commented on the record about this topic,
stating ?Learned counsel?s request that he meets in the courtroom has been granted by the
behavior of the con?nement facility, over and over and over. They?ve also offered up a meeting
place in AV-34, where I work, and the defense counsel has been able to take advantage of those .
. . . . yet learned counsel still refuses to appear.? See Unauthenticated Transcript, United States
v. November 17, 2017, 1 1034.

 

?5 I note that you have resigned from further supervision or involvement in the US. v. Nashiri case.

ii. Authority to Release Defense Counsel for Good Cause

21. On October 6, 201'? Mr. Kammen, Ms. Eliades, and Ms. Spears submitted a request to
you, to withdraw from their representation of the accused, relying in signi?cant part on the June
24, 2017 memorandum and an October 5, 2017 ethics opinion from Professor Ellen Yaroshefsky.
On October 1 1, 2017, you noti?ed Mr. Kammen, Ms. Eliades, and Ms. Spears that you had
accepted their request to withdraw from representing the accused, and you released them for
?good cause shown on the record,? citing R.M.C. 505(d)(2). On October 13, 2017 the defense
provided notice to the commission of this purported withdrawal. See Record of Trial p. 10039.

22. Rule for Trial by Military Commission (RTMC) outlines the authority for the Chief
Defense Counsel (CDC) to detail counsel to represent individuals charged in military
commissions. Speci?cally, Rule 9-1 and (5) requires the CDC to detail judge advocates to
represent an accused.

23. Rule for Military Commission (R.M.C.) 505(d)(2)(B) permits an authority competent to
detail defense counsel to excuse or change such counsel, upon request of the accused or
application for withdrawal by such counsel; or (ii) for other good cause shown on the record.?

24. In addition to the authority to detail military counsel, Rule states that the
CDC may also detail a learned counsel from the staff as practicable. The distinction
between the detailing of military counsel and the selection of civilian counsel representation is
emphasized in Rule (?The Chief Defense Counsel shall ensure that all detailed
defense counsel and civilian defense counsel who are to perform duties in relation to a military
commission have taken an oath to perform their duties 

25. Generally, the ?military judge controls the proceedings in a trial referred to his court from
beginning to end.? United States v. Nivens, 21 C.M.A. 420, 425 (C.A.A.F. 1972). A detailing
authority cannot unilaterally excuse counsel without a good cause determination by the military
judge because R.C.M. 505 requires such a ?nding be accomplished by the militaryjudge on the
record. United States v. Bevacqaa, 37 MJ. 996, 1003 (C.G.C.M.R. 1993). Indeed, in this
commission case, defense counsel have previously recognized the authority of the Military Judge
to approve excusal of counsel.3 This issue has also been addressed in the United States v. KSM
et of. case with the military judge ?nding that the judicial authority must assess whether con?icts
of interest exist. See AE 292QQ (?Defense counsel facing a con?ict of interest may deprive an
accused of representation by competent counsel unless a judicial inquiry ?nds there is no actual
conflict.? (citing United States v. Jones, 662 F.3d 1018 (8th Cir. 2011);Aasier v. United States,

 

7 This distinction was underscored by the militaryjudge, who stated, from a chief defense counsel in prior
releases of counsel that make clear that they believe their authority only applied to detailed military counsel, not
leamed counsel; unique because learned counsel aren't detailed, they are appointed.? See Transcript of Proceedings,
United States v. Nasniri, November 14. 2017, p. 10754.

3 On July 2017, defense counsel ?led a motion seeking the militaryjudge?s permission to excuse detailed
defense counsel. AE 3391-1, Defense Motion to Excuse Detailed Defense Counsel, Lieutenant Commander Jennifer
Pollio, United States v. Nasniri, July 14, 2017. In their motion, defense counsel cited to Military Commissions
Trial Rule of Court (RC) 4.4b and requested that the Military Judge approve the Chief Defense Counsel?s excusal of
LCDR Pollio with the consent ofthe accused. The militaryjudge subsequently granted the defense motion in AB
3391.

545 F.3d 1101 (8th Cir. 2008); United States v. Blount, 291 F.3d 201 Cir. 2002); United
States v. Lee. 589 F.2d 980 (9th Cir. 1979)). Similarly, in that same military commission, when
defense counsel for Mr. bin ?Attash believed a potential conflict of interest had arisen, they
brought the issue to the military judge, including a request to withdraw, with no involvement
from the Chief Defense Counsel.9 See United States v. Mohammad, er of Transcript, May 15,
2017, pp. 15583-84. After discussing the matter, the Military Judge denied defense counsel?s
request to withdraw. Id. at 15637.

26. Based on legal authority and prior precedent in both the KSM trial and the Nashfri
case, it is my opinion that only the military judge can release defense counsel from
representation of a client after a showing of good cause on the record. Contrary to your
assertions, you lack the authority to unilaterally release defense counsel without a judicial
?nding of good cause.

Path Forward

27. A matter more imperative than my action in the contempt proceeding remains the
underlying security concerns that led to the attempted resignation of counsel in the ?rst place.
Until the issues of transparency are resolved in an unclassi?ed forum, the case is unlikely to
advance, even if new counsel are appointed, because new counsel might well assert identical
attorney-client privilege ethical concerns. Security concerns and classi?cation issues have raised
legitimacy issues from the outset of military commissions. Although the appropriateness of their
chosen path is now under review, Mr. Al-Nashiri?s civilian defense counsel have raised the issue
of the lack of con?dentiality in attorney-client communications at the detention facilities at
NSGB. To ensure openness and transparency continue in the future, I also intend to recommend
to the Joint Detention Group that a ?clean? facility be designated or constructed which would
provide assurances and con?dence that attorney-client meeting spaces are not subject to
monitoring. This clean facility would also be checked periodically to ensure compliance with
con?dentiality expectations by an independent team to ensure it remains free of listening and
inappropriate monitoring devices. Although this step is beyond the authority of the Convening
Authority to direct, I take the liberty of noting it, because it would go far in facilitating litigation
in this case.

28. The ongoing issues that precipitated the contempt proceedings are rooted to a great
degree in the classi?ed nature of the proceedings, evidence, detention facilities, and personnel
involved. The key to the legitimacy of military commissions is transparency. The Of?ce of the
Chief Prosecutor has asserted that millions of pages of highly classi?ed information has been
reviewed and summarized into roughly a few hundred thousand pages of information available to
the defense. The ?nal summarization of that classi?ed evidence was turned over to the defense
in late 2017, over six years after charges in this case were referred to trial. Additionally, every
proceeding, ?ling with the commission, transcript, and individual practicing before military

 

9 Speci?cally, when a former member of the defense team ?led a lawsuit against the current defense team members,
learned counsel for Mr. Bin ?Attash, Ms. Cheryl Bonnann, requested that the Military Judge abate the proceedings
or appoint independent counsel for Mr. Bin ?Attash. UnofficialtUnauthenticated Transcript at  5583-84. United
States v. Mohammad er (May 15, 2017). Alternatively, she would move to withdraw. Id. After discussing the
issue, the Military Judge denied the defense motion on all grounds, including the defense request to withdraw. id. at
1563?.

commissions must clear the appropriate classi?cation screening process. Even a ?ling as
mundane as a notice of appearance of counsel or a scheduling order must be vetted through a
labyrinthian process through various agencies who determine whether the
information should be classi?ed, and at what level. Although there are legitimate, recognized
intelligence equities, they must be balanced against the ability to carry out an orderly trial
process so that the pursuit of justice for those involved in the commissions process and provide
closure for the victims and family members.

29. The declassi?cation of relevant documents concerning this matter needs to be expedited
to ensure the now-classi?ed analysis can be shared with the appropriate parties to ensure the
integrity of the process. Indeed, the fact that the original defense ?ling which gave rise to the
attempted resignation of civilian defense counsel and contempt proceedings against you was
classi?ed has made it nearly impossible to those not party to the proceeding to assess the merits
of the ?ling. Compounding this issue is the fact that even the judge?s original opinion, in which
he determined that there was no good cause to warrant excusal of civilian counsel in this case
and no ethical issues requiring withdrawal or disquali?cation, is still undergoing a security
review by classi?cation authorities over a month after the ruling was made.'0

30. CONCLUSION: I hereby order that the ?ndings of the military judge of contempt
against you not be disturbed, as they are correct in law and fact. I also order that the remainder
of the unexecuted portion of your sentence of con?nement and ?ne be remitted. Pursuant to
R.M.C. 109(b)(2), I am forwarding the ?ndings and record of proceedings to the appropriate
authority overseeing your service as a Judge Advocate within the Department of the Navy, the
Standards of Conduct Of?ce, and the Staff Judge Advocate to the Commandant of the
United States Marine Corps for an administrative ethics review. Finally, I recommend to the
Joint Detention Group that a ?clean? facility be designated or constructed which would provide
unclassi?ed assurances and con?dence that the attorney-client meeting spaces are not subject to
monitoring.

Harvey Rishikof
Director, Of?ce of Military Commissions

Attachment:
Converting Authority Action, November 21, 2017'

 

?0 In expressing his frustration at the lack oftransparency in this issue, thejudge stated, it has to do with the
classi?ed information in 389. And so to the extent possible. I want the OCAs to deciassify what they can. I want you
all to work with them. I know I can't order it. I know I can't order it disclosed. But I am ordering you to work with
the OCAs to declassify, to the extent possible, information related to this alleged intrusion. and, frankly. the
complete lack of evidence of intrusion in this case for this accused." US. v. Ai-A?ashiri Transcript. November 
201T,p.10536.

ACTION

In the contempt proceedings against BRIGADIER GENERAL JOHN G. BAKER,
United States Marine Corps, Military Commissions Defense Organization, the
unexecutecl portion of the sentence of 21 days con?nement and the ?ne in the amount
will not be executed.