Baker v. Spath

Citation: Not availableDocket: Civil Action No. 2017-2311

Court: District Court, District of Columbia; June 18, 2018; Federal District Court

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Brigadier General John G. Baker filed a Petition for Writ of Habeas Corpus against Colonel Vance Spath and Secretary of Defense James Mattis, challenging a contempt finding against him. The Court determined that: 1) the presumption of collateral consequences applies, ensuring the case is not moot and that the Court has jurisdiction; 2) General Baker has exhausted all remedies within the Military Commission system, thus the Court will not abstain from jurisdiction; 3) the Military Commission holds personal jurisdiction over General Baker for contempt-related findings and punishments; and 4) Judge Spath lacks unilateral contempt power. Consequently, the Court granted General Baker's Petition for a writ. 

Background details include that General Baker is the Chief Defense Counsel in the Military Commission System, while Colonel Spath presides over the trial of Abd Al-Rahim Hussein Al-Nashiri. Baker excused most of Al-Nashiri's defense counsel due to ethical concerns, leaving Lieutenant Alaric Piette as the sole counsel, who was not qualified under the Military Commissions Act. Al-Nashiri sought to abate his case, which was denied by Judge Spath. During a subsequent hearing, Judge Spath ordered General Baker to testify and to rescind his excusal of the defense counsel. General Baker refused, leading to a summary contempt proceeding where he was denied the opportunity to be heard and subsequently held in contempt, resulting in 21 days of confinement and a $1,000 fine. General Baker’s counsel filed the habeas corpus petition while he was confined, and a hearing was scheduled shortly thereafter.

One hour before the hearing, the convening authority deferred General Baker’s confinement pending review of the contempt finding and sentence. Consequently, the Court chose to defer its ruling on the Petition, awaiting the convening authority's review and additional briefs. The review concluded on November 21, 2017, with the convening authority maintaining Judge Spath’s contempt finding but remitting General Baker’s confinement and fine. The record of the contempt proceedings was forwarded to various military and legal authorities for an ethics review. On November 22, General Baker’s counsel inquired about a potential referral to the Court of Military Commission Review (CMCR), which has not occurred.

General Baker presents five arguments against the contempt finding's legality: 1) his actions did not meet the statutory definition of contempt; 2) Judge Spath lacked authority to unilaterally impose such a finding; 3) the summary contempt procedures violated the Military Commissions Act (MCA); 4) those procedures infringed on his due process rights; and 5) the military commission lacked personal jurisdiction over him. The respondents oppose these arguments and assert two grounds for dismissing the Petition: 1) it is moot since General Baker is no longer confined and will not suffer collateral consequences; and 2) the Court should abstain from reviewing the Petition based on Schlesinger v. Councilman due to General Baker’s alleged failure to exhaust internal military remedies.

The Court will first address the respondents' jurisdictional claims, then consider the Military Commission’s jurisdiction over General Baker and Judge Spath's authority to hold him in contempt. The Court finds it has jurisdiction to consider the Petition, disagreeing with the respondents regarding both mootness and exhaustion of remedies.

The court maintains subject matter jurisdiction over the petition, determining that it is not moot. The Constitution mandates that judicial power be limited to actual cases or controversies, meaning that if a lawsuit becomes moot, the court loses the authority to adjudicate it. The respondents claim the lawsuit is moot because General Baker has received the relief he sought—his release. However, even if relief is granted, a case is not automatically moot, particularly regarding challenges to criminal convictions, which remain actionable regardless of whether the sentence has expired or been served. 

The Supreme Court has affirmed that a writ of habeas corpus can still be sought by a petitioner who was in custody at the time of filing, even if they are released before the court can decide the case. A criminal case is considered moot only if there are no potential collateral legal consequences stemming from the conviction. Thus, the court must assess whether General Baker may face such consequences due to his contempt conviction. General Baker has the burden to demonstrate that the case is not moot by showing the potential for collateral consequences related to the conviction.

The presumption of collateral consequences is applicable in this case, as General Baker argues for its application based on two grounds: the existence of a presumption of collateral legal consequences and specific collateral consequences stemming from Judge Spath’s contempt finding. The Supreme Court has previously indicated a willingness to presume that wrongful criminal convictions have ongoing collateral consequences, as seen in Spencer v. Kemna. However, respondents contend that this presumption should not extend to military commission convictions. 

The historical development of this presumption reveals that the burden initially rested on the convict to demonstrate collateral consequences, as suggested in St. Pierre. In Fiswick v. United States, the Court acknowledged that a criminal case does not become moot upon a convict's release, noting potential consequences like deportation or difficulty in establishing "good moral character" for citizenship. The case of United States v. Morgan further illustrated that even after serving a sentence, the repercussions of a conviction may persist, affecting future sentences or civil rights.

By Pollard v. United States, the Court moved away from requiring proof of specific collateral consequences, instead presuming their existence based solely on the acknowledgment that most criminal convictions lead to adverse legal outcomes. This presumption was established to prevent cases from becoming moot due to the mere possibility of collateral consequences. However, subsequent decisions, such as Lane v. Williams, limited the presumption, stating it does not apply when a convict challenges only part of their sentence, as no civil disabilities arise from such a finding.

In Spencer v. Kemna, the Supreme Court established that collateral consequences from a parole revocation do not automatically meet the injury-in-fact requirement of Article III. It cautioned against presuming collateral consequences, a view echoed by the D.C. Circuit in Gul v. Obama, which declined to apply such a presumption to former Guantanamo detainees labeled as enemy combatants. The D.C. Circuit provided three main reasons for its conclusion, emphasizing that standing must be clearly evident in the record, questioning the relevance of presuming collateral consequences in a modern judicial context, and doubting the actual existence of significant collateral consequences from parole revocations.

Respondents in the current case argue against extending this presumption to General Baker’s military commission conviction. The court differentiated Baker’s situation from prior cases (Lane, Spencer, and Gul), noting that those cases did not challenge underlying criminal convictions, whereas Baker directly contests his contempt conviction. Unlike Lane, where respondents could have sought to set aside their convictions, Baker's attack is on the conviction itself, which is still pending, making his case distinct from those previously adjudicated. Moreover, Gul's refusal to apply the presumption is irrelevant as it dealt with non-criminal designations without established collateral consequences. Thus, the court concludes that the presumption of collateral consequences applies to Baker’s case.

The Court determined that any potential harms from the designation in General Baker's case are not within its power to address, distinguishing his situation from the Gul case, which involved individuals seized on a battlefield and under foreign control, implicating international relations. In contrast, General Baker is a U.S. citizen convicted of criminal contempt, a crime equivalent to ordinary criminal convictions, with no international relations issues at hand. He is challenging the underlying criminal conviction itself through habeas corpus, not just the sentence. Consequently, the presumption of collateral consequences applies to his case.

The respondents failed to provide sufficient evidence or argument to counter this presumption. Their attempts to rebut General Baker’s identified collateral consequences were inadequate, as such rebuttals do not fulfill the burden of overcoming the presumption. The Court highlighted that allowing respondents to merely refute specific examples would lead to unfair pleading strategies for petitioners, either forcing them to withhold examples or risk easy rebuttal. 

To overcome the presumption, respondents would need to reference laws in relevant jurisdictions that explicitly limit or negate the collateral consequences associated with the conviction. The Court referenced a legal precedent indicating that collateral civil penalties typically do not extend beyond the completion of the sentence or release from imprisonment.

Scholarly work and legal surveys can assist in understanding collateral consequences, but the Court emphasizes that the respondents have not presented sufficient evidence to rebut the presumption of such consequences stemming from General Baker's criminal contempt conviction, thus deeming the case non-moot. The Court determines that General Baker has exhausted necessary avenues for relief, rejecting the respondents' claim that he should seek mandamus relief from the Court of Military Commissions Review (CMCR) before pursuing habeas relief in this Court. The respondents' position is considered disingenuous, as Rule 809 of The Rules for Military Commissions explicitly states that the convening authority's decision on contempt findings is final and not subject to further review or appeal. Consequently, the Court concludes that General Baker has no further recourse within the military commission system, and there are no ongoing proceedings to defer to, as established in Schlesinger v. Councilman.

The respondents fail to establish the jurisdiction of the Court of Military Commission Review (CMCR) over a petition for mandamus relief regarding General Baker’s case, as Section 950f limits CMCR's review to cases referred by the convening authority, which has not occurred here. The respondents also reference the All Writs Act as a potential jurisdiction source, but the Act does not confer independent appellate jurisdiction. While military appellate courts can issue extraordinary writs to assist their existing statutory jurisdiction, the Court finds no connection between addressing General Baker's contempt conviction and the CMCR’s future appellate jurisdiction over Al-Nashiri's case. The Court notes that General Baker's contempt actions do not directly influence Al-Nashiri’s trial outcomes, as various factors shape the defense. Any concerns should be raised through normal appeal processes rather than mandamus. The contempt proceedings will be part of Al-Nashiri’s trial record, allowing the CMCR to consider their impact during an appeal if necessary. Ultimately, the Court concludes that it has jurisdiction over General Baker's Petition, as the military commission’s rules do not provide for CMCR review in this instance.

The military commission has personal jurisdiction over General Baker to try him for contempt under 10 U.S.C. 950t(3). General Baker argues that the commission lacks personal jurisdiction because he is a U.S. citizen and, therefore, not an "alien" as defined in 10 U.S.C. 948a(1). He contends that since he is not an alien, he is not "subject to trial by military commission" as specified in 10 U.S.C. 948c, leading to the conclusion that the commission lacks jurisdiction to try him.

In contrast, the respondents argue that the commission does have personal jurisdiction over General Baker specifically for contempt. They point to the wording of 10 U.S.C. 950t, which lists 31 crimes, noting that while the first 30 crimes pertain only to "persons subject to this chapter," the contempt provision states that a military commission may punish "any person." This distinction implies that the commission can exercise jurisdiction over a broader category of individuals for contempt than for other listed offenses.

The court acknowledges the apparent contradiction between 10 U.S.C. 948c and 948d, which limit jurisdiction to alien unprivileged enemy combatants, and 950t(3), which allows for punishing "any person" for contempt. The tension between these statutes raises questions about the extent of the commission's authority.

In determining the interpretation of the statute, the Court emphasizes two principles of statutory construction: 1) every clause and word of a statute must be given effect when possible, and 2) the intentional inclusion or exclusion of specific language by Congress indicates deliberate legislative intent. The absence of the phrase "persons subject to this chapter" in the definition of contempt is significant, as it is included in 30 of the 32 crimes listed in § 950t. General Baker's argument that this omission has no practical effect contradicts the presumption of intentionality behind Congress’s wording.

The Court concludes that while the commission has personal jurisdiction over "alien unprivileged enemy belligerents" as defined in §§ 948c and 948d, § 950t additionally provides a limited personal jurisdiction over "any person" committing contempt. This interpretation maintains the integrity of the statutory framework and recognizes the significance of the textual distinction.

Furthermore, the Court rules that Judge Spath lacked the authority to unilaterally impose a finding of contempt against General Baker. Section 950t explicitly states that contempt must be tried and punished by a military commission, not a military judge acting alone. The distinction between "military judge" and "military commission" is clear in Chapter 47A, indicating that the two terms are not interchangeable, and thus, Judge Spath's unilateral action was not authorized under the statute.

Commissioned officers of the armed forces on active duty are eligible to serve as members of a military commission, as outlined in Section 948i(a). Members are distinct from military judges, who have different qualifications and duties under Section 948j. Military judges must be commissioned officers, bar members of a federal or state highest court, and certified as military judges for general courts-martial. The language in Sections 948i and 948j emphasizes the separation between commission members and military judges, with members serving on the commission and judges being detailed to and presiding over it.

Military judges cannot consult with members outside of the presence of the accused and counsel, nor can they vote with the members, reinforcing their non-member status. These rules parallel the traditional separation between judges and juries in civilian courts. The prohibition against judges voting is crucial, especially in light of Section 949m(a), which states that a conviction by a military commission requires concurrence of two-thirds of the primary members. Since military judges are not members, they are excluded from the vote and the necessary procedures for convictions, rejecting any interpretation that would include judges as part of the military commission. The respondents do not assert that “military commission” encompasses military judges.

950t(l. 30) permits unilateral findings of guilt and sentencing by the military judge without member input, which threatens to undermine the military commissions system by effectively instituting bench trials for crimes listed in 950t. The court finds no textual justification to interpret “military commission” in 950t(31) differently than in 950t(l. 30). The consistent use of “military commission” throughout Chapter 47A supports the principle of statutory construction that identical terms should have the same meaning (Sullivan v. Stroop, 496 U.S. 478, 484). 

Respondents advocate for Chevron deference to rules established by the Secretary of Defense, which define “military commission” to include the military judge acting alone in certain contexts. However, the court declines to defer to these rules, asserting that the first step in Chevron analysis involves determining if the statute is ambiguous. If Congress's intent is clear, that intent must be honored (Chevron, 467 U.S. at 843). 

The court refuses to consider external sources, such as legislative history or comparisons with the Uniform Code of Military Justice (UCMJ), as they do not create ambiguity in a clear statute. An agency cannot manufacture ambiguity through its rules and then seek deference based on that ambiguity. The UCMJ may provide guidance but is not binding on military commissions established under this chapter (10 U.S.C. 948b(c)). Legislative history is only relevant to clarify ambiguity, not to undermine clear statutory language (Milner v. Dep’t of the Navy, 562 U.S. 562, 572).

Legislative history is utilized to clarify congressional intent behind ambiguous statutory language, not to create confusion. The respondents argue that Chapter 47A does not explicitly prohibit a military judge from conducting summary, unilateral contempt proceedings; however, the chapter's provisions indicate that such actions are not permitted. Specifically, Chapter 47A establishes that contempt is a punishable offense by a military commission, requiring a two-thirds vote from commission members for convictions, thus excluding military judges from this process. Judge Spath acted unlawfully by unilaterally convicting General Baker of contempt, usurping authority reserved for the commission. Consequently, Judge Spath’s findings must be vacated, and the Court grants General Baker's Petition. The Court finds no need to address additional arguments, as the illegality of R.M.C. 809, which allows military judges to find and punish contempt, is evident since it contradicts Chapter 47A’s requirements. The Court orders the vacating of General Baker’s conviction, denying all other pending motions. A separate order will follow. Signed by Judge Royce Lamberth on June 18, 2018.