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Pentagon upholds Marine general’s contempt conviction in USS Cole legal dispute

November 24, 2017

The senior Pentagon official in charge of the war court has upheld a judge’s contempt conviction of the Marine general overseeing defense teams, according to a statement issued Tuesday that suggested three civilian defense attorneys are still bound to litigate in the USS Cole case at Guantanamo.

The Pentagon also said that the official, Harvey Rishikof, will advocate for a new space where captives can meet with their attorneys in confidence that their conversation is not being monitored. The issue is at the core of the attorneys’ refusal to participate in the case.

While upholding the contempt conviction, Rishikof decided that Marine Brig. Gen. John Baker need not serve the remainder of a 21-day sentence of confinement or pay a $1,000 fine. USS Cole case judge Air Force Col. Vance Spath sentenced Baker to both on Nov. 2 for invoking a privilege and refusing to answer the judge’s questions at the war court.

Instead, Rishikof, whose title is convening authority of military commissions, will forward the conviction to Baker’s chain of command as an administrative and ethics matter.

“I find that imposition of the remainder of the sentence of confinement would have no significant deterrent or rehabilitative effect,” Rishikof wrote Baker, according to a copy of his decision obtained by The Miami Herald.

In the short term that could keep the issue out of federal court.

When Baker was confined to his trailer park quarters behind the Guantanamo courthouse, U.S. District Court Judge Royce Lamberth considered a habeas corpus petition brought by civilian lawyers for Baker, who called the general’s detention unlawful. After about 48 hours but before Lamberth could rule, Rishikof suspended the general’s punishment.

The general’s civilian attorney, Barry Pollack, said Wednesday that Baker and his attorneys were considering whether there was a military channel “to challenge the erroneous contempt finding or whether to return to Judge Lamberth to ask him to overturn the contempt finding.

“While we are very pleased that the Convening Authority negated the remainder of the sentence of confinement and overturned the fine that had been imposed,“ Pollack said by email, “we think the Convening Authority was plainly wrong in concluding that the military judge had the authority to hold General Baker in contempt in the first place. The contempt finding should be reversed.”

Based on the Pentagon statement, Rishikof appears to recognize an ongoing, clandestine crisis in confidence in the ability of defense attorneys to hold confidential conversations with accused terrorists at the prison complex — the reason why USS Cole criminal defense attorney Rick Kammen, an experienced death-penalty lawyer, and colleagues Rosa Eliades and Mary Spears asked Baker to permit them to resign in the first place. All three were paid by the Pentagon.

The Pentagon said Rishikof “will also recommend to the Joint Detention Group at Guantanamo Bay that a ‘clean’ facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds.”

In the past, lawyers have discovered listening devices in Guantanamo meeting rooms disguised as smoke detectors; a prosecutor said soldiers mistakenly overheard legal meetings, and then something — the details are classified — happened over the summer to cause Baker to caution defense teams that no meeting site at the base guarantees fundamental attorney-client confidentiality.

The Pentagon said Rishikof would be asking the commander of the guard force at Guantanamo’s prison of 41 captives to create a space for attorney-client meetings. In specifically seeking that be done by the Joint Detention Group commander, Army Col. Steve Gabavics, the Pentagon statement signaled that Rishikof was bypassing the senior commander of the prison, Rear Adm. Edward Cashman.

Gabavics answers directly to the prison commander, independent of the prison’s intelligence, legal and combat camera units, which answer to Cashman via a chief of staff of equal rank to Gabavics.

Four entities get to decide Baker’s fate, according to the statement: the top-ranking lawyer in the Marine Corps, a two-star general who serves as the staff attorney to the commandant of the Marine Corps; someone at the Pentagon’s General Counsel office; the Department of Defense’s “Standards of Conduct Office,” and someone in the Department of the Navy.

The Pentagon statement signaled Rishikof‘s support for Spath, who has refused to recognize the resignations of Kammen and the others, by referring to the “attempted resignation of counsel.” That suggests that, as far as the top Pentagon war court official is concerned, Kammen, Eliades and Spears are still attorneys of record on the case.

Kammen said by email Wednesday morning that “our position is that Gen. Baker excused us. So our resignations were approved by the only official with a vote. The convening authority has no legitimate role in this decision.”

He added that, under the rules for the war court, the role of the convening authority is not that of “a super judge until there is a conviction. He does not have a legitimate role in the conflict between Colonel Spath and General Baker over excusal authority. Indeed his attempt to insert himself into it may be unlawful influence.”

Kammen represented former CIA captive Abd al Rahim al-Nashiri for nearly a decade. The Saudi is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the USS Cole warship off Aden, Yemen, that killed 17 American sailors.

This month he was represented in hearings — which focused in part on the death-penalty representation question — by a Navy lieutenant with no capital defense experience who had been practicing law for just five years.

Baker, who has recused himself from overseeing the USS Cole defense teams, is represented on the contempt matter by civilian lawyers Pollack and Addy Schmitt and Marine Col. Jonathan Hitesman, the chief defense counsel of the Marines.


© 2017 Miami Herald

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