Washington, DC (Nov. 2, 2017) – Yesterday afternoon, at the U.S. Naval Base at Guantanamo Bay, Chief Defense Counsel for the Military Commissions Defense Organization Marine Brig. Gen. John Baker was held in contempt by Military Judge Spath and sentenced to 21 days confinement in his quarters and a $1,000 fine. On October 13, 2017, Baker found good cause to allow the withdrawal of three civilian members of the defense team in the case of United States v. Nashiri due to concerns that the government compromised attorney-client confidentiality.
United States v. Nashiri is the trial of Abd al Rahim al Nashiri, who is the alleged mastermind of the 2000 bombing of the U.S.S. Cole. Tuesday, Baker refused to testify and to rescind his order allowing the withdrawal of Mary Spears, Rosa Eliades, and Learned Counsel Richard Kammen. The National Association of Criminal Defense Lawyers (NACDL), which has a long history of supporting defense counsel at the military commissions, has stepped in to provide strike force representation for General Baker. Court papers (available here, here, and here) were filed today in federal court in Washington, D.C., by Baker’s counsel, NACDL Immediate Past President Barry J. Pollack, a member of the law firm Miller & Chevalier.
NACDL President Rick Jones said, "The nation’s criminal defense bar deplores this attack on the defense function and the attorney-client privilege. United States Marine Brig. Gen. John Baker has been held in contempt and sentenced to 21 days confinement for nothing more than defending American principles and the Constitution."
"This is a national disgrace and an embarrassment," said NACDL Executive Director Norman L. Reimer. "The idea of confining a United States General for discharging his duties is abhorrent. He should be immediately released."
On Sunday, Kammen, one of the civilian attorneys Baker allowed to withdraw from the case, explained to the Miami Herald why he and his colleagues defied Judge Spath’s order to travel to Guantanamo for a hearing concerning their withdrawal: "The military judge has ordered U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the façade of justice that is the military commissions running. This order is illegal and neither I nor the other civilians are going to Guantánamo. The fundamental problem, of course, is government misconduct and the judge’s willingness to tolerate this misconduct, which gives rise to the requirement that we withdraw as Mr. al-Nashiri’s lawyers."
In addition to finding Baker in contempt, Judge Spath declared Baker’s decision allowing the withdrawal of the three civilian attorneys "null and void" and also ordered Kammen, Spears, and Eliades to appear via U.S. video link on November 6 to testify in this matter.
NACDL has long been concerned about attorney-client privilege at Guantanamo, as reflected, for example, in its 2012 NACDL ethics opinion. Previous NACDL statements on Guantanamo and attorney-client communications can be found here, here, and here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.