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.

Prof. Glazier's Amicus Briefs in Military Commission Case Finds Influential Audience

As reported in an earlier post on Summary Judgments, Professor David Glazier has filed two amicus briefs in support of Abd al-Rahim al-Nashiri, the high-profile Guantanamo detainee. Now, the merits of the arguments contained in those briefs are addressed on LawFare.

Excerpt:

Both amici address the unintended consequences of allowing the government to treat the existence of hostilities as a factual question subject to retrospective determination. They both argue that perceptions of the legitimacy of our military courts system affect the security of our armed forces. The RMAG amicus argues that reciprocity is a key determinant in ensuring the safety of US troops that are captured abroad, citing as evidence of the power of reciprocity and legitimacy the fact that 99% of U.S. war prisoners in Germany during World War II survived.

Prof. Glazier Files Amicus Brief in Nashiri Military Commission Trial

Professor David Glazier recently filed an amicus brief with the U.S. Court of Appeals for the District of Columbia in the case of Abd al-Rahim Hussein Al Nashiri v. Barack Obama, et. al. 

Excerpt:

Domestic and international law have confined military commission jurisdiction to acts taking place during, and directly related to, an ongoing armed conflict. Acts subject to military commission jurisdiction constitute serious violations of the law of war which have recognized penal sanctions associated with their violations, commonly called “war crimes.”

Abd al-Rahim Hussein Al Nashiri ("Nashiri") is facing military commission trial at the U.S. Naval Station at Guantánamo Bay for three incidents that transpired in or near Yemen between 2000 and 2002: the attempted bombing of the USS The Sullivans on January 3, 2000; and the completed bombings of the USS Cole and the French tanker M/V Limburg on October 12, 2000 and October 6, 2002, respectively.

The military commission seeks to try Nashiri for nine charges defined by the Military Commissions Act of 2009, Pub. L. 111-84 §§ 1801-1807 (2009) ("2009 Act") (codified at 10 U.S.C. §§ 948a, et seq.). While charges based on the attempted attack on the USS The Sullivans and the completed attacks on the USS Cole and French tanker M/V Limburg qualify for federal criminal prosecution by Article III courts, these acts fall outside the recognized scope of an armed conflict, a necessary prerequisite for law of war military commission jurisdiction. As detailed below, the United States was not involved in armed conflict during the timeframe of the earlier incidents, nor does the post-9/11 attack on the Limburg, a French tanker under charter to a Malaysian entity, fall within the scope of any armed conflict. Charges based on these incidents thus cannot constitute “war crimes” and fall outside both the constitutional jurisdiction of the military commissions and the statutory ambit of the 2009 Act which limits the commissions to trying offenses “committed in the context of and associated with hostilities.”

Read the full brief below.

Al Bahlul, Conspiracy, and the Misuse of History

By Professor David Glazier

This piece originally appeared on Lawfare.

The oral arguments in Monday's D.C. Circuit en banc review of Ali Hamza al Bahlul's military commission conspiracy conviction essentially came down to competing views of history. The government concedes that conspiracy is not a recognized war crime under international law. But rather than accepting chief prosecutor Brigadier General Mark Martins' plan to move forward using more credible charges, the Justice Department argued that the Guantánamo commissions can try conspiracy based on historical U.S. practices. Relying largely on research by prosecution team member Haridimos Thravalos (discussed on Lawfare here and here), the government asserts the existence of a "domestic" U.S. law of war which includes conspiracy to overcome concerns that its initial codification in the Military Commissions Acts of 2006 cannot be applied retroactively. Al Bahlul naturally disagrees.

After reviewing each authority cited by Thravalos' article and the government's briefs, I believe that al Bahlul has the best of this argument for reasons I expressed to the court in an amicus briefand have more fully developed in a draft law review article available here. As I see it, there are two basic flaws in the domestic law arguments:

(1) Virtually every credible reference to the law of war, including the sources the government relies on, describes the law of war as being part of international law. 

(2) None of the cases cited as domestic "law of war" conspiracy prosecutions really stand up to exacting scrutiny. On closer examination, each one seems to (a) represent the prosecution of completed, rather than inchoate, conduct; (b) ground the conspiracy charges in domestic legal jurisdiction under martial law or military government rather than the law of war per se; or, (c) use conspiracy as a mode of liability rather than charging conspiracy as a substantive offense.