Wednesday, November 8, 2017

Contempt at the Military Commissions: A Legal History

By: Professor David Glazier
This piece originally appeared on Lawfare

Does a military commission judge have the power to cite a senior U.S. military officer for contempt as if these tribunals were courts-martial or regular federal courts?

This question came to the fore last week when Guantanamo experienced its most bizarre detention to date. On Nov. 1, Col. Vance Spath held in contempt the military commissions’ chief defense counsel, Marine Corps Brig. Gen. John Baker in the trial of Abd al Rahim al Nashiri. (Al Nashiri is accused of planning the 2000 bombing of the USS Cole.) Although it might be widely assumed that the Guantanamo tribunals should enjoy similar core authority to that inherent in other U.S. courts—including the power to punish for contempt—the reality is that their authority is limited by their governing statute, the Military Commissions Act of 2009 (MCA).

Spath summarily convicted Baker for contempt of court for refusing to testify before the commission or revoke his unilateral excusal of three civilian counsel assigned to represent al Nashiri due to purported ethical conflicts. Spath imposed on Baker twenty-one days confinement and a $1,000 fine. Although Baker’s actions might be punishable by a judge in a regular civilian court, or even a court-martial conducted under the recently amended Uniform Code of Military Justice (UCMJ), they fall outside the scope of contempt as Congress defined it in the MCA.

Baker promptly filed a petition for habeas relief in the district court for the District of Columbia. Justice Department attorneys responded on Spath’s behalf, seeking to sidestep statutory concerns by arguing that his actions were “consistent with long-standing judicial authority” and citing Supreme Court precedent in Ex parte Robinson that the “power to punish for contempts is inherent in all courts.” The fundamental flaw with this argument (as well as separate assertions from the government that judges always have the final say about excusing counsel) is the fact that U.S. military tribunals are not courts and familiar judicial rules are thus not automatically applicable. The Supreme Court’s 1857 Dynes v. Hoover decision held that the congressional establishment of courts-martial was “entirely independent” of the “judicial power” of the United States. The court subsequently extended this holding to military commissions, declaring in Ex parte Vallandigham that the commissions were not an exercise of judicial authority. William Winthrop, the leading 19th century U.S. military justice commentator, further clarified this point explicitly with respect to contempt:

A general power to punish for contempt ... is inherent in all superior courts of record, independently of legislation. But it ‘does not arise from the mere exercise of judicial functions’ ... Courts-martial, not being courts of record, nor indeed, strictly, courts at all in the sense of being a part of the judicial department of the government, but only instrumentalities in aid of the executive arm, of temporary and limited powers, without the capacity to issue process or the means of enforcing their judgments, have no general inherent authority to punish for contempt, and are only authorized to punish as they are thereto expressly empowered by [statute] (Page 301).
U.S. courts-martial have always had some power to punish contempt. The first U.S. military law (the Articles of War), adopted after the Declaration of Independence, provided:
No person whatever shall use menacing words, signs, or gestures in the presence of a court-martial then sitting, or shall cause any disorder or riot, so as to disturb their proceedings, on the penalty of being punished at the discretion of said court-martial.

A separate article in that same section allowed punishment of persons refusing to give evidence, demonstrating that refusal to testify did not fall within the scope of “disorder” as used in the statute. When Congress reenacted the Articles in 1806 to adapt them to the intervening ratification of the Constitution, the paragraph quoted above was carried over verbatim, but the provision allowing punishment for failure to testify was completely omitted. An 1874 reissuance made no further substantive changes in this area. As a result, as Winthrop explained, military trials had only very limited authority with respect to contempt (Pages 301-302). He showed that they were limited to the “punishment only of some ‘direct’ contempts ... committed in the presence or immediate proximity of the court ... as distinguished from ‘constructive’ contempts ... [such as] a refusal or neglect by a witness to appear when duly summoned ... ” (Pages 301-302).

Winthrop further explained that the term “disorder” referred only to actual conduct “so rude and pronounced as to amount to a positive intrusion upon and interruption of the proceedings in the court,” and he provided specific examples which included “assaults” on persons connected with the trial, “altercations between counsel or spectators, drunken or indecent conduct, loud and continued conversation” (Pages 308-309). Winthrop was adamant, however, that
acts not of a violent or disturbing character, though they might constitute contempts at common law and before the civil courts, would not be disorders in the sense of the present Article. Thus a quiet refusal by a witness to be sworn ... or simple refusal to testify at all, would not be punishable as a disorder and contempt before a court-martial (Page 309).
The historical language—and concurrent limitation on the scope of contempt—found its way into the post-World War II UCMJ. Only in 2011 did Congress finally rectify the problem by adding a new subparagraph to the definition of contempt in UCMJ article 848, which allowed punishment of any person who “[w]illfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial, court, or military commission.” This language would seem to encompass Baker’s conduct except for the fact that another added provision, paragraph (c), explicitly excludes this entire section’s applicability to military commissions “established under chapter 47A of this title”—the statutory codification of the MCA.

Although military commissions were originally “common law” war courts, since 2006 they have been expressly governed by federal statute—the Military Commissions Act of 2006 and its 2009 successor. Commission judges today can only rely on the limited definition of contempt found in paragraph (31) of Section 950t of the MCA, which essentially replicates the two-century-old language that Winthrop discusses.


The Guantanamo commissions confront a number of highly complex legal issues—many of which would be entirely avoidable by simply shifting the trials to federal courts—such as identifying the origin dates and lawful scope of the so-called “war on terror,” establishing the degree to which constitutional and international due process and criminal procedure rules apply to the trials and determining what substantive limitations on subject matter jurisdiction may be mandated by the law of war. Many commentators, myself included, have expressed serious doubts that the commissions are up to the task and predict that final judgments in any of the high profile cases will necessarily be delayed by many more years of litigation and appeals. The unauthorized confinement of an American general resulting from a military commission judge's inability to correctly apply a longstanding U.S. military law rule further undermines the tribunal's' credibility.

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