In Contempt Clash at Guantanamo, Chief Defense Lawyer Is Jailed

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A Marine Corps brigadier common who was held in contempt Wednesday and detained amid a dispute over attorney-client protections at Guantanamo Bay is the form of Kafkaesque quagmire that Miller & Chevalier’s Barry Pollack stated calls him to bat.

Pollack, head of Miller’s white-collar and inside investigations follow, on Thursday filed a federal habeas petition in Washington federal district courtroom on behalf of Brig. Gen. John Baker, chief protection counsel of the Military Commissions Defense Organization System.

A fee choose held Baker in contempt and ordered him confined for 21 days for refusing to rescind his Oct. 11 resolution to excuse three civilian attorneys from their protection of Saudi Abd Al-Rahim Al-Nashiri, charged with organizing the bombing of the united statesS. Cole in Yemen in 2000.

Barry Pollack. Credit: Diego M. Radzinschi/ ALM

“The government has for years promised us the only people detained at Gitmo are the worst of the worst,” Pollack stated in an interview with the National Law Journal on Thursday. “With the confinement of General Baker, a military judge has detained the best of the best.”

The three protection attorneys, together with capital protection counsel Richard Kammen of Kammen & Moudy in Indianapolis, sought to withdraw from the Al-Nashiri case due to alleged breaches of attorney-client and work-product privileges. To proceed their illustration, they stated, can be a violation of moral guidelines.

Although proof of the alleged breaches is clbaded, Baker issued a memorandum on June 14 that suggested protection counsel he had not too long ago acquired data indicating that badembly areas for navy fee defendants and their attorneys couldn’t badure confidentiality.

Pollack, in his habeas petition, requested U.S. District Judge Royce Lamberth for expedited evaluation of the habeas petition. Lamberth, a former chief choose who oversaw lawyer entry and different points badociated to Guantanamo detainees, scheduled a listening to for Thursday afternoon and deliberate to proceed the continuing on Friday.

In the petition, Pollack made basically three arguments: The presiding choose, U.S. Air Force Col. Vance Spath, violated Baker’s due course of rights by expressly denying him a chance to be heard earlier than holding him in contempt; the choose had no private jurisdiction over Baker as a result of the Military Commissions Act refers solely to aliens; and none of Baker’s acts was contemptuous.

Pollack spoke to the NLJ concerning the case and its broader implications. What follows are highlights from the dialog, edited for size and readability.

NLJ: How did you change into counsel to Gen. John Baker?

Pollack: I’m the instant previous president of the National Association of Criminal Defense Lawyers and there have been individuals who reached out to the NACDL on Gen. Baker’s behalf as soon as the contempt was threatened to attempt to get him authorized counsel. The NACDL requested me to take it on and I used to be completely delighted to take action as somebody who has huge respect for Gen.  Baker and all the pieces he has been doing to deliver equity to the proceedings.

Did Baker have any avenue apart from federal habeas to problem the contempt order?

I don’t badume so. There isn’t any different judicial evaluation accessible. There isn’t any course of for this type of contempt holding.

Are there broader implications on this contempt order for attorneys representing Gitmo detainees?

This contempt order is way broader than Gen. Baker. It undermines the protection operate and basic equity of those proceedings. The entire cause the chief protection counsel place was created is for Gen. Baker to do what Gen. Baker has executed—guarantee a robust, vibrant protection part. Without that, nobody may have any confidence in these proceedings.

What influence may Baker’s state of affairs have on civilian attorneys representing detainees?

It may have a chilling impact. Knowing you may go to jail for doing all your job effectively will not be one of the simplest ways to encourage folks to tackle these roles.

Judge Spath has directed the three civilian protection attorneys to seem at a listening to Friday in Alexandria, Virginia. Two have stated they won’t present up. Any ideas on what might occur?

That’s effectively past what I’m doing so I’m only a spectator. I must say for a similar causes we set forth in our movement, it’s tough to see what authority a navy choose in a fee whose jurisdiction is restricted to aliens would have over civilian U.S. residents.

Al-Nashiri is left with one navy protection lawyer who will not be capital certified. During a listening to Thursday on a preliminary injunction to delay his case till certified capital counsel is discovered, Lamberth raised considerations about civilian courts intruding in navy proceedings. Do you badume that concern will likely be an impediment to your habeas petition?

I feel Gen. Baker’s state of affairs is totally different. We’re not asking Judge Lamberth to determine any of the underlying points from the navy fee. We’re not asking him to second-guess any resolution within the fee course of. This is a way more basic query—whether or not Congress gave a single navy choose the authority to behave as prosecutor and jury in a contempt listening to with out giving Gen. Baker the chance to be heard. This is a pure authorized query of statutory authority, which federal courts take care of on a regular basis.

A transcript of the listening to at which Baker was held in contempt is posted beneath:

 

 

Read extra:

With Gitmo Back in Play, Obama Envoy Returns to Boies Schiller

As Trump Touts Guantánamo, U.S. Prosecutors in New York Notch Wins in Terror Trials

Special Report: The Guantánamo Bar

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