Military Commission Judges Do Not Have
Unilateral Power to Punish for Contempt
Jennifer K. Elsea
Legislative Attorney
July 18, 2018
Brigadier General (Gen.) John G. Baker, Chief Defense Counsel of the Military Commission System,
prevailed in his habeas case against a military commission judge who sentenced him to 21 days’
confinement and fined him $1,000 for contempt. The contempt charge stemmed from Gen. Baker’s
refusal to appear before the military judge to defend or rescind his decision to permit all but one of the
defense attorneys in the Al-Nashiri (U.S.S. Cole bombing) case to withdraw on ethical grounds. The
District Court for the District of Columbia ultimately granted the petition in Baker v. Spath on the grounds
that military judges in the military commission system do not have the authority unilaterally to impose
punishment for contempt. Rather, contempt charges must be decided by a full military commission in the
same way as any other offense punishable by military commissions established under the Military
Commissions Act of 2009 (MCA).
Prior to addressing the military judge’s contempt power, the court reviewed whether it had jurisdiction to
hear the petition. Although Gen. Baker was no longer subject to confinement and his fine was remitted,
the court determined his habeas petition was not moot because the presumption of collateral consequences
applied. The court also rejected the government’s argument that the court should abstain because Gen.
Baker had not exhausted remedies available in the military commission system. The court pointed out that
the military commission rules do not provide for further review of a contempt conviction in the Court of
Military Commission Review (CMCR) and also disagreed with the government that appellate review
could be available at the CMCR through the All Writs Act in aid of its jurisdiction over the Al-Nashiri
case.
Turning to the merits, the court rejected Gen. Baker’s argument that he is not subject to military
commission jurisdiction because he is not an alien unprivileged enemy belligerent subject to such
jurisdiction under the MCA. However, while the first 30 of 32 offenses listed in the MCA (10 U.S.C.
§950t) apply to “any person subject to this chapter,” the crime of contempt applies to “any person” (10
U.S.C. §950t(31)). The court agreed with the government that this difference means that the contempt
