MILITARY COMMISSIONS TRIAL JUDICIARY
GUANTANAMO BAY, CUBA
UNITED STATES OF AMERICA
v.
ABD AL RAHIM HUSSAYN
MUHAMMAD AL NASHIRI

AE 391
Government Motion
to Release Audio Recordings
of Commission Proceedings of
31 October 2017 and 1 November 2017
9 January 2018

1. Timeliness
This motion is filed timely pursuant to Military Commissions Trial Judiciary Rule of
Court (“R.C.”) 3.7.c.(1).
2. Relief Sought
The Government respectfully requests that the Commission authorize the immediate
release of the audio recordings of the Commission’s proceedings on 31 October 2017 and
1 November 2017 to certain parties. The Government requests that the Commission direct a
compressed briefing schedule in accordance with R.C. 3.7.d.(1) and R.C. 3.7.e.(2) so that the
audio may be released and made available no later than 19 January 2018 (so that the requested
relief may be addressed during the first day of the next scheduled session from 18–24 January
2018 as established by AE 390A).
The Government also requests that the Commission specify in its order that release of the
audio recordings to the parties (i.e., the Prosecution, the Defense, Brigadier General John G.
Baker and his legal counsel,1 and to the Department of Justice) is exclusively for their internal

                                                            
1
Because Brigadier General John G. Baker was the subject of the contempt proceedings on
1 November 2017, the Government requests that he also be granted access to the recordings.

 use and in litigation before the United States District Court for the District of Columbia in the
matter of Baker v. Spath, No. 17-cv-02311 (D.D.C. Nov. 2, 2017).
The Government requests that, except for the possible use of the audio recordings by the
United States District Court for the District of Columbia in the matter of Baker v. Spath, the
Commission prohibit release of the audio recordings by the Prosecution, the Defense, Brigadier
General Baker and his counsel, to any other person or entity. Finally, the Government requests
that the Commission direct in its order that the Office of the Court Administration provide a
certificate of authenticity and that the audio be in a suitable technical format for replay and
listening.
3. Overview
The Department of Justice has requested the audio recordings of the 31 October and
1 November 2017 hearing sessions. These recordings are relevant to ongoing habeas litigation
before the United States District Court for the District of Columbia wherein Brigadier General
John G. Baker has collaterally challenged this Commission’s decision and authority to punish
him for contempt. In those collateral proceedings, Brigadier General Baker has characterized his
defiant conduct before the Commission as “respectful” and “exceedingly courteous.” The
Prosecution disagrees and has requested that the Department of Justice attorneys representing the
United States oppose the wrongful characterization with appropriate factual rebuttal. In
evaluating contempt citations and claims of judicial misconduct, federal and state courts
frequently rely on audio recordings of proceedings to determine whether conduct in another
courtroom was, in fact, contemptuous. As the presiding officer in the Commission, the Military
Judge can authorize the release of the audio recording. Rule for Military Commission
(“R.M.C.”) 801. Moreover, the R.M.C. provides that parties should be given reasonable access

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 to audio recordings of the proceedings in the event of a dispute over an authenticated record. See
R.M.C. 1104(f)(2). For these reasons, the Commission should authorize releasing the recordings
of the 31 October 2017 and 1 November 2017 sessions to the parties.
4. Burden of Proof
As the moving party, the Government must demonstrate by a preponderance of the
evidence that the requested relief is warranted. R.M.C. 905(c)(1)–(2).
5. Facts
a. On or about 2 November 2017, the Military Judge authenticated the record of General
John G. Baker’s misconduct and contempt proceedings before the Commission. The
authenticated record consists only of written material and includes no audio or audio-visual
recordings of the 31 October 2017 or 1 November 2017 sessions.
b. It is the Prosecution’s recollection that, on 31 October 2017, during the course of
Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and
audibly laughed in a contemptuous manner in response to the clear orders given by the
Commission to rescind his release of defense counsel. This behavior, coupled with failure to
approach the podium when addressing the court and his refusal to take the witness stand when
called by the Commission, was consistent with his general deportment of defiance and disrespect
before the Commission throughout the proceedings.
c. Due in part to the expeditious nature in which the record was produced so as to assist
the Convening Authority in its review of the proceedings, the transcript does not include
annotations reflecting Brigadier General Baker’s verbal and non-verbal conduct before the
Commission on 31 October 2017 or 1 November 2017. The authenticated record does not
indicate General Baker’s tone, volume, or other phonic indicia of his deportment during the
proceedings.
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 d. Brigadier General Baker filed a Petition for habeas corpus in the United States District
Court for the District of Columbia on 2 November 2017. In contesting the Commission’s
authority to hold him in contempt, the Petition characterizes Brigadier General Baker’s conduct
before the Commission as “respectful declinations to take actions . . . .” Pet’r Brief, Baker v.
Spath, No. 17-cv-02311 (D.D.C. Nov. 2, 2017) (ECF No. 2) at 2; id. at 15 (“None of Petitioner’s
acts were close to being contemptuous . . . . Rather Petitioner respectfully disagreed with
Respondent Spath that he had the lawful authority to issue any of the orders he did.”).
e. In a supplemental brief to that Petition, Brigadier General Baker claimed that the
Commission’s contempt citation has no “legal or factual basis” because, among other things,
Brigadier General Baker was “exceedingly courteous” and only “respectfully disagreed” with the
Commissions rulings during the 31 October 2017 hearing session. Pet’r Supp. Brief, Baker v.
Spath, No. 17-cv-02311 (D.D.C. Dec. 1, 2017) (ECF No. 11) at 22–23.
f. In preparing its Response to Brigadier General Baker’s habeas petition, the
Department of Justice has requested the Prosecution obtain the audio recording of the 31 October
2017 and 1 November 2017 proceedings.
6. Discussion
A military judge can authorize the release of the recordings of a commission’s
proceedings to the parties. R.M.C. 801 provides that “the military judge is the presiding officer
in a military commission.” As its presiding officer, the military judge is responsible for the
record of a commission’s proceedings. See R.M.C. 1104(a) (“A record of trial by military
commission shall be authenticated by the signature of the military judge who presided over the
portion of the proceedings that he or she is authenticating. . . . Authentication is an attestation
that the record accurately reports the proceedings.”); cf. United States v. Anderson, 12 M.J. 195,

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 196 (C.M.A. 1982) (noting the trial judge “should at all times respect the professional
independence of the reporter, but may challenge the accuracy of the reporter’s record of the
proceedings”).
Recordings of the proceedings are maintained for the military judge in case disputes arise
over the record. See Regulation for Trial by Military Commission (“R.T.M.C.”) 22-2(b) (“The
court reporters in every case shall ensure that . . . any recordings (mechanical, video or voice)
from which the record of trial was prepared are retained until such time as review of the case is
final.”); see also R.M.C. 1104(f)(2) (providing that the military judge is responsible for
overseeing disputes regarding authenticated record). If such a dispute arises as to aspects of an
authenticated record of a commission’s proceedings, the R.M.C. requires that “[a]ll parties shall
be given reasonable access to any original report’s notes or tapes of the proceedings.” R.M.C.
1104(f)(2).
Although R.M.C. 1104 specifically applies to the correction of an authenticated record of
trial in the context of direct appellate review of a conviction, the rule is instructive in this
situation. Brigadier General Baker has collaterally challenged the Commission’s findings in a
federal district court and proffered facts regarding his decorum before this Commission. Access
to the audio recordings of the proceedings could aid the factfinder in resolving the parties’
factual dispute regarding deportment and decorum. The situation is therefore analogous to that
contemplated by R.M.C. 1104, and the Military Judge possesses the same authority to permit the
parties to access the audio recordings.
The Commission should authorize production of the recordings. First, the Department of
Justice has requested the audio recordings of the 31 October and 1 November 2017 hearing
sessions for use in collateral habeas proceedings. Even in the absence of a dispute over the

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 record, there is no good cause to deny the Department of Justice access to a United States
Government record. Second, the recordings are clearly relevant, as res gestae, to resolve
Brigadier General Baker’s habeas petition before the United States District Court for the District
of Columbia should the district court reach the merits of Brigadier General Baker’s claims.
The limitations of the written word are such that a transcript alone cannot fully convey
tone, volume, or other phonic indicia of deportment. However, these are the precise things that
are relevant in evaluating contemptuous conduct, where the difference between a respectful and
diligent response like, “I’ll get right on that, your honor” and a sarcastic one using the same
words could have legal significance. This is why, when evaluating contempt citations and claims
of judicial misconduct, federal and state courts frequently rely on audio recordings of
proceedings to determine whether conduct in another courtroom was, in fact, contemptuous.2
The Government maintains that Brigadier General Baker’s characterization of his
conduct before the Commission is inconsistent with the actual events of 31 October 2017 and
1 November 2017. Although the written record could theoretically support his claims under an
implausible reading of the transcript, the audio recordings—in the Government’s view—would

                                                            
2
See, e.g., In re Doe, 640 F.3d 864, 869 (8th Cir. 2011) (“Having reviewed a complete transcript
and listened to an audiotape of the November 4, 2010 hearing, the respondent’s conduct at the hearing
conclusively refutes complainant’s allegations. The record plainly does not reflect complainant's
contention that the district judge disparaged, attacked, ridiculed or otherwise treated complainant with
hostility. . . . The respondent demonstrated an accommodating tone throughout the hearing, was patient,
pleasant and judicious . . . .”); In re Van Vleet, 2009 U.S. Dist. LEXIS 95374, at *13–16 (D. Colo. 2009)
(noting district court’s independent review of audio recordings of bankruptcy court’s proceedings to
determine sufficiency of court’s contempt finding). See also Minka v. State, 2017 Miss. LEXIS 289, at
*24 (Miss. 2017) (“[B]oth the transcripts and the audio recording included with this record fully support
the court’s findings [of contempt].”); Rosenzweig v. Lofton, 295 Ark. 573, 583 (1988) (“[W]e have
carefully reviewed both [the written] record and [the audio] recording and are thoroughly satisfied that
counsel’s demeanor to the trial court was at all times respectful.”); Commonwealth v. Wilson, 81 Mass.
App. Ct. 464, 465 (2012) (“We have also reviewed an audio recording of Wilson’s outburst that resulted
in the finding of summary criminal contempt.”).

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 make plain that Brigadier General Baker was not “respectful” or “exceedingly courteous” in his
deportment when he attacked and defied the Commission’s judgments by refusing to obey them.
Resolving this factual dispute is important to resolving Brigadier General Baker’s habeas
petition. The litigants and the United States District Court for the District of Columbia should
have access to the best available evidence. As the presiding officer in the Commission, the
Military Judge in this case can and should authorize the release of the audio recordings to the
parties.
7. Conclusion
The audio recordings requested by the Department of Justice are relevant to ongoing
habeas litigation before the United States District Court for the District of Columbia and should
be released to the parties. Courts frequently rely on such recordings as evidence because of the
limitations of written transcripts in evaluating contemptuous and other inappropriate courtroom
conduct. As the presiding officer in this Commission and the authority responsible for the
record, the Military Judge may authorize the release of the audio recordings to the parties and
should do so, in this instance, to resolve an apparent dispute over the authenticated record.
8. Oral Argument
The Government does not request oral argument.
9. Witnesses and Evidence
The Government does not request any witnesses.
10. Additional Information
The Government offers no additional information.

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 11. Certificate of Conference
The Government certifies that it conferred with the Defense before filing this motion.
The Defense did not respond within twenty-four hours; therefore, by rule the Defense is
presumed to oppose the relief sought by the Government.
12. Attachments
A. Certificate of Service dated 9 January 2018.
B. Draft Proposed Order
Respectfully submitted,
___________//s//______________________
Mark A. Miller
Trial Counsel
John B. Wells
Colonel, USA
Managing Assistant Trial Counsel
Michael A. Pierson
Major, USAF
Assistant Trial Counsel
Mark Martins
Chief Prosecutor
Military Commissions

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 ATTACHMENT A

CERTIFICATE OF SERVICE
I certify that on the 9th day of January 2018, I filed AE 391, Government Motion to Release
Audio Recordings of Commission Proceedings of 31 October 2017 and 1 November 2017, with
the Office of Military Commissions Trial Judiciary and served a copy on counsel of record.

________________//s//_________________
Mark A. Miller
Trial Counsel
Office of the Chief Prosecutor
Office of Military Commissions

 ATTACHMENT 

MILITARY COMMISSIONS TRIAL JUDICIARY
GUANTANAMO BAY, CUBA
AE 391__
UNITED STATES OF AMERICA

Draft Order

v.

Regarding AE 391 Government Motion
to Release Audio Recordings
of Commission Proceedings of
31 October 2017 and 1 November 2017

ABD AL-RAHIM HUSSEIN
MUHAMMED ABDU AL-NASHIRI

XX January 2018

1. On 9 January 2018, the Prosecution filed AE 391 Government Motion seeking the release of
the audio recordings of the Commission sessions of 31 October 2017 and 1 November 2017.
2. The Prosecution advised the Commission that the audio records have been requested by the
Department of Justice to evaluate and form a Response to a Petition filed by Brigadier General
John G. Baker in the United States District Court for the District of Columbia seeking judicial
review of this Commission’s contempt proceedings. Baker v. Spath, No. 17-cv-02311 (D.D.C.
Nov. 2, 2017).
3. The Prosecution advised the Commission that the Petition describes and characterizes in a
favorable manner Brigadier General Baker’s demeanor and deportment before the Commission
during the course of his refusal to follow the Commission’s lawful orders.
4. The Prosecution disagrees with the Petitioner’s favorable characterization of his conduct before
the Commission and notes that the Authenticated Transcript does not include manner and tone
annotations. The Prosecution asserts that the audio recordings are relevant to assessing the
demeanor and deportment of Brigadier General Baker’s contempt during the Commission

 sessions, and that the audio recordings may be made available to the United States District Court
for review.
5. As the presiding officer in a commission, Rule for Military Commission (“R.M.C.”) 801
provides a military judge the authority to release audio recordings of sessions. The R.M.C. also
provides that parties should be given reasonable access to audio recordings of the proceedings in
the event of a dispute over an authenticated record. See R.M.C. 1104(f)(2).
6. For the reasons outlined by the Prosecution in its motion, the Commission authorizes
immediate release of the session audio recordings of the 31 October 2017 and 1 November 2017
to the parties (the Prosecution and the Defense), to Brigadier General John G. Baker, and to the
Department of Justice for the internal use and distribution only to the United States District
Court for the District of Columbia in the matter of Baker v. Spath, No. 17-cv-02311 (D.D.C.
Nov. 2, 2017).
7. Except for the possible use of the audio recordings by the United States District Court for the
District of Columbia in the matter of Baker v. Spath, the audio recordings may not be released by
the Prosecution, the Defense, or Brigadier General Baker and his counsel to any other person or
entity.
8. The Commission further directs the Office of the Court Administration to provide, as needed,
an appropriate certification of authenticity or declaration suitable for use and admission of the
audio recordings to the United States District Court for the District of Columbia.
9. Further, the Commission directs the Office of Court Administration to confirm and provide the
audio recording in a technical format capable of replay and listening by any party identified in this
Order.
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 10. Accordingly, AE 391 is GRANTED with orders and directions specified above.
So ORDERED this ___ day of January 2018.
______________________________
VANCE H. SPATH, Colonel, USAF
Military Judge
Military Commissions Trial Judiciary

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