By John Ryan | July 6, 2016 | Lawyer Limelights, Guantanamo Bay
Marine Brig. Gen. John Baker is now one year into his role as Chief Defense Counsel for the military commissions at Guantanamo Bay. (Image from the Committee to Review the Criminal Justice Act, April 2016 hearing.)
If you go to Guantanamo Bay to observe the military tribunal against the five Sept. 11 defendants, you won’t see the Chief Defense Counsel arguing any of the motions at the podium or sitting at the defendant tables during the proceedings. Instead, you’ll find Marine Brig. Gen. John Baker at a discrete table at the back of the courtroom, directly in front of the glass separating the highly secure court from its viewing gallery. During breaks, Baker will also move about the court, chatting with the defense attorneys and occasionally a detainee.
In his supervisory role, Baker does not represent any of the detainees. Rather, he provides advice to the defense teams and helps them get the resources they need from the military commissions Convening Authority, which is responsible for overall management of the commissions system as well as referring charges for trial. Baker’s position is different than that of the chief prosecutor – Army Brig. Gen. Mark Martins – who also prosecutes the cases in addition to managing his office. Baker says he is impressed that his not-quite-counterpart is handling both roles, adding with a smile: “I am busy enough doing mine.”
Lawdragon sat down with Baker at his Guantanamo Bay office on the afternoon of June 1, during a weeklong pretrial hearing in the Sept. 11 case. Prosecutors and the defense teams that Baker supervises were all in court, but he was not permitted to attend. It was a closed session involving classified information and – though he has the necessary security clearances – Baker does not have an attorney-client relationship with any of the defendants and is not a party to the case. As a result, defense teams have had to ask prosecutors on a piecemeal basis whether they can discuss certain information when meeting with their boss – mostly getting “yes” answers, but sometimes “no.”
“I have no idea what they are talking about,” Baker says of the session taking place just down the hill at the Camp Justice complex. “There is something wrong with the boss not knowing what is going on.”
Baker followed up by email in late June, explaining that the problem should be rectified going forward. He had proposed a change in the commission regulations – allowing him to attend classified sessions and permitting defense teams to share classified information with him – and it had been approved by the Deputy Secretary of Defense.
Nevertheless, one year into his assignment atop the Military Commissions Defense Organization, Baker sees broader challenges for his office. Though he is extremely impressed with the approximately 175 civilian and military personnel working for him, he does not believe the defense teams have enough resources and support to litigate such massive and complex cases. The five 9/11 defendants all face the death penalty for their alleged roles in planning and financing the attacks, as does the alleged USS Cole bomber in a separate case. The third commission in pretrial hearings targets Abd al Hadi al Iraqi, who faces a life sentence for alleged war crimes as an al Qaeda commander. All defendants in the commissions system receive government-paid military defense lawyers; those facing the death penalty also receive learned counsel experienced in capital cases. (The current crop of learned counsel are all from private practice.) Baker’s office also includes a smaller group of defense attorneys who represent detainees the government has identified for possible prosecution but not yet charged.
Baker was a supply and logistics officer in the Marines before attending law school at the University of Pittsburgh through the Marine Corps Law Education Program. Since graduating in 1997, he has served as a defense attorney, prosecutor and judge. He says he found his true calling – managing defense lawyers – as the Regional Defense Counsel for the Eastern Region of the Marine Corps, a position he held from 2008 to 2010 before serving three years as Chief Defense Counsel. In that top job, he oversaw the establishment of the Marine Corps Defense Services Organization, which reformed how defense lawyers were supervised and assigned to cases.
Immediately before joining the commissions, Baker was the Deputy Director, Judge Advocate Division, for Military Justice and Community Development, and also served as the Marine Corps representative to the Department of Defense’s Joint Service Committee on Military Justice
[Related: Visit Lawdragon's Guantanamo page for more features.]
Lawdragon: Can you discuss why you changed the name of the defense office, and how that plays into what your role is here?
Brig. Gen. John Baker: When I took over, this office was referred to as the Office of the Chief Defense Counsel. The reason why I changed the title to the Military Commissions Defense Organization is that the focus of this office shouldn't be on me. We are an organization that is comprised of defense teams, and when someone thinks about what we do, it is not the Chief Defense Counsel that is doing the litigation. The litigation is done by the defense teams.
What I do is provide them with oversight and supervision, and advocate on their behalf for resources. What I don't do is tell them how to litigate their cases. That is a big difference between my role and General Martins' role. General Martins decides what the government is doing with its litigation strategy and has an active role in court. The Chief Defense Counsel absolutely does not decide the litigation strategy for any particular case and cannot represent individual clients. The defense teams talk to me about their cases, but what they do with my advice is up to them.
LD: What did you think when you were promoted and assigned to this position? Did you know what you were getting into?
BGJB: I knew about the position and was excited about the possibility when being considered for it. But what I thought the commissions were, and what the commissions are, is like night and day. I just didn't appreciate the depth and breadth of the legal work that is involved in the commissions. I had no idea how much work is involved. I didn't know the amount of resources that were put to it. I had no idea how often they came down here. I had no idea how many motions they filed. I had no idea how much discovery would be involved.
I also did not have an appreciation for how committed to the mission people here are. The quality of lawyers that are assigned to this, the paralegals and all the staff – everybody here is really, really impressive. I guess the other thing I didn't appreciate was how under-resourced the defense teams are, even though we have what may seem like a lot of people. I feel like we have made some progress, but we need more resources to get the job done.
LD: Can you talk about how you get resources for the case? In April, you were on a panel about the Criminal Justice Act in which you said that process is different for you now than in your past roles.
BGJB: When I was Chief Defense Counsel of the Marine Corps, I had my own budget. Here I don't have my own budget. I have to ask permission from the Convening Authority of the military commissions to spend any amount of money on the defense teams. When I was the Chief Defense Counsel for the Marines, I felt like I had enough people and other resources. Here I don't feel like I have enough resources, so that is what I have been working with the Convening Authority to provide – to get the assets that the teams need to do their job. I don’t know how Gen. Martins is resourced, but I can’t just go to the FBI or Department of Justice or elsewhere to get what we need. I have to go to the Convening Authority.
LD: I understand from some of the court filings that you want to get a second learned counsel for all the defense teams for the Sept. 11 defendants, who are all facing the death penalty.
BGJB: Yes, I have notified the Convening Authority that I need a second learned counsel for every capital team, except right now for Mr. [Abd al Rahim al] Nashiri [who is accused of masterminding the bombing of the USS Cole] because his case is on appeal. There is an incredible amount of work to do related to capital cases, along with other practical considerations. You saw earlier this week in court that James Connell [lead attorney for Sept. 11 defendant Ammar al Baluchi] wasn’t feeling well. Jay sent me a note Monday night that said, "Hey, I really, really don't feel good. I hope I can make it to court tomorrow." If Jay couldn't have made it to court Tuesday, we wouldn't have had court Tuesday because the defendants need to be represented by learned counsel. We have had hearings cancelled solely because a single learned counsel was sick or dealing with a significant personal issue. That is one practical aspect of it.
But these are huge cases. There is a fact investigation that has to occur, there is a sentencing investigation that has to occur. The legal standard on capital cases is very clear. Counsel are essentially required to investigate and litigate two simultaneous cases: one to determine the guilt of the client and one for mitigation if the client is found guilty. If we really want to try these cases, there needs to be a second learned counsel on each team.
LD: But it goes beyond that from your perspective – you feel you need more staff generally, more lawyers, investigators, paralegals, analysts.
BGJB: Yes. What I did when I came into this job, with Captain Brent Filbert, my deputy, we sat down and did a requirements analysis. That’s the way I was brought up in the Marine Corps. You figure out what your mission is, and then you figure out what you need to meet the mission. We came up with what I thought was the bare minimum requirements to do these cases. The Convening Authority just recently granted my request for more paralegals. I expect that over the summer we will be able to begin to hire them. While that is going to be a tremendous benefit to the teams, simply increasing the number of paralegals on each team will not solve our personnel shortfalls.
LD: Even if the defense teams get new members, it can take a while for them to get their security clearances. That seems to come up in court almost every hearing. So those are situations where people joining the team can help out with some tasks, but not others?
BGJB: That is right. That is a huge issue. The length of time that it takes to get a security clearance is unacceptable. I have talked to everybody that I know about this, but it is like talking to a wall. Everybody I talk to says, "Hey, great, we hear you. We wish it was better." Nobody can do anything about it. I am still waiting to find the person that can speed the process up. Everybody acknowledges that it is a problem, but nobody offers a solution, and that dramatically impacts the defense team's ability to adequately and zealously defend their clients.
LD: Are there enough learned counsel out there who want to do this?
LD: How do you find them?
BGJB: One way is word of mouth. I am part of the National College of Capital Voir Dire faculty, and I know capital lawyers from other experiences. The learned counsel on the teams also have colleagues they can go to. We let people know that we have these openings. The way the process works is when there is a candidate that is identified, the team submits a request to me. I determine whether the person is qualified or not and they get added to the civilian counsel pool. Then, I submit a request to the Convening Authority for funding for them. I’ll tell you, the lawyers that the teams are submitting to me are very, very well qualified.
The civilian counsel pool also allows people that are interested in working here to submit an application to the defense office. If they are qualified, we will begin the process of getting them a security clearance. That way, if there is a need for them, it shortens that process. There is somebody that I requested to be the second learned counsel on one of the teams who already was a member of the pool, so the attorney already has a security clearance.
LD: Is it the same pool from which pro bono attorneys are chosen? Abd al Hadi al Iraqi is not facing the death penalty, so he is not entitled to learned counsel, but he was recently given four new civilian lawyers in addition to his statutorily-required military counsel. [Hadi’s new team claim that the government has the wrong man and that their client’s name is actually Nashwan al Tamir.]
BGJB: Yes. I came in about the same time that Nashwan requested that I change all his military lawyers. The civilian counsel pool at that point was stagnant. That is when I sent an email out to every lawyer I knew that said, "Hey, there is this civilian counsel process. If you are interested, submit an application." That is when we got a lot of people who asked to join. It was very easy. We had way more people that wanted to help work on his case than we made available to work on his case.
But to clarify one issue: My view is that you cannot serve as learned counsel in the military commissions on a death penalty case as a pro bono attorney. The way the statute is written, and the way the regulations are written, the Convening Authority is required to fund the learned counsel in the same fashion as learned counsel are funded in the federal court system. And these lawyers have to have capital defense experience. The capital teams can have pro bono attorneys, including those with capital experience, but they cannot serve in a learned counsel position on the teams.
LD: Is it another problem that the military lawyers can be rotated out for another assignment? That seems like it would be an issue given how long these cases are taking.
BGJB: Part of the problem is that I am supposed to have 64 lawyers in my organization and 51 of them are supposed to be military lawyers. Last fall, I had about 30 of the 51 military lawyers – so the services were not meeting their obligations. On top of that, of the 30 military lawyers I had, some were due to rotate. That is why I went to the Convening Authority and said, “What I really want is to trade a bunch of uniform lawyers and replace them with civilian lawyers.” To be fair, I am going to end this summer with more military lawyers than last year, so the services are getting closer to meeting their obligations. Part of that is because since I came here, I spent a lot of time talking to the Service JAGs and explaining how important our mission is, and they were all very receptive.
But I still really do want to replace some of my military lawyer positions with government service civilian lawyers. The military lawyers that come here have a lot of experience handling Uniform Code of Military Justice cases. The primary military justice case they have dealt with is either low-level drug use or distribution sorts of cases, or sexual assault cases. Those are good skills, but they are really not the skill-set that you need to do these types of cases. It’s not that I don't like our military lawyers – that is what I am. But more civilian lawyers allows each team to figure out what skill set they need. Cheryl Bormann’s team [for Sept. 11 defendant Walid bin Attash] might need somebody to write motions, whereas Jim Harrington [for Sept. 11 defendant Ramzi bin al Shibh] might need somebody that is good at international law.
LD: All the attorneys you supervise, at least those that speak publicly, are extremely critical of the military commissions system. Do you generally share their views?
BGJB: Yes. I have been asked if I thought we needed to move the commissions out of Guantanamo to within the United States. I have no view on where they are tried; that is not my decision. But they need to be tried fairly; right now, they are not. The rules aside, the number one problem is the continual government interference with the defense function. I have never talked to anybody who has seen a system where you have repeated government intrusion on the defense function: the bugging of the attorney-client meeting rooms, the infiltration of a defense team by the FBI, a defense team having an interpreter who used to work for the CIA – the whole panoply of things that have happened. That cuts to the core of the defense counsels’ ability to form an effective relationship with their clients. We could have the fairest rules in the world, but until you solve that problem, it won’t be fair.
And the rules as they are written are just not fair. They are not like the court martial system or the federal system, which are both fair systems. They really have created this hybrid set of rules that almost seem to be designed to violate the due process rights of the accused. Everybody talks about how this is perhaps the most important criminal trial in United States history. You would think that if we are going to put our system of law on display internationally, we would want to demonstrate how fair we are. And we certainly aren't.
LD: When you think about these criticisms, do you tend to focus on the rules – such as hearsay being allowed as evidence in more scenarios – or more practical matters, like the fact that the defense teams can’t have phone conversations with their clients?
BGJB: It is all of that. And I am still in the learning process on these issues. Watching the litigation over the judge’s order as it relates to how the lawyers can communicate with the clients – this type of uncertainty is totally unique in American criminal law. So, that is a big problem. The hearsay is also a big problem. But the litigators decide which rules to challenge because one issue is going to be more important to David Nevin [lead lawyer for Khalid Sheikh Mohammed] than it is to Cheryl Bormann. For me the biggest problem is the government's intrusion into the defense function. It really cuts at the Sixth Amendment right to defend your clients. It is pretty inspiring to watch the lawyers litigate the issues, to see how dedicated they are to the mission.
LD: The issue that delayed the case for about 18 months is the investigation into Jim Harrington’s team for Ramzi bin al Shibh, and whether that created a conflict that would require lawyers to leave the case. Does that linger over the office – that there can be extremely serious consequences if information in the case is not handled properly?
BGJB: I am going to give you an inconsistent answer. That litigation lingers over the office every day. The people that work for me, their security clearance for many of them is their livelihood, and the idea that if they don't follow the rules they can be justifiably held accountable is something that makes us extra cautious in what we are doing. That very justifiable anxiety is made much worse by the fact that we have still never received the official guidance about what is classified and what is not that we are entitled to under the regulations. If the government ever meets that obligation, it will help.
Despite all of that, every single day these people are going 150 miles an hour for their clients. The conflict litigation absolutely impacts our office, and it certainly impacts the attorney-client relationship. But despite that and all the other challenges that are wrapped up in being assigned here, they work extremely hard and effectively.
LD: Another regular complaint from some of the defense lawyers is that they haven’t been able to talk to you about everything they are dealing with – there are classified sessions that you are not present for because you are not actually representing any of the defendants. Why has that been the situation? [This interview took place before the Deputy Secretary of Defense approved the proposed change in regulations allowing Brig. Gen. Baker to attend closed sessions.]
BGJB: The protective order in the case says, essentially, that the government releases information to the parties of the case. At one point, James Connell wanted to talk to me about a classified issue. I said, "You know what, the protective order might say that you can’t." I wasn’t sure. If there is a question about what the protective order is or what the security classification is, everybody errs on the side of caution. So Mr. Connell filed a motion to change the protective order so the defense teams could talk to me. However, the judge said that the way the regulations are currently written he did not have the authority to authorize the disclosure of classified information to the Chief Defense Counsel. Therefore, defense teams can't use the protective order to provide classified information to me.
The judge did explain that the government can give defense lawyers authorization to talk to me on a subject. So, we could be sitting in my office talking about an issue with a defense team, and the conversation evolves into a discussion of another issue that concerns classified information. In these situations, we have had to stop and send an email to the prosecutor saying, "We want to talk to the chief defense counsel about X." The prosecutors decide yes or no. They usually say “yes.” Sometimes they say “no.”
LD: You don't have an attorney-client relationship with the defendants, but you do speak with them. For example, you’ve spoken a lot with Walid bin Attash, who has been unsuccessful in getting his attorneys fired and replaced. Can you characterize your relationship with a defendant in a situation like that?
BGJB: While I don't have an attorney-client relationship with any of them, their communications with me are privileged. I will meet with any detainee that requests to meet, as long their lawyers approve. I won't meet with a detainee where his counsel says no. That has never arisen. There are a couple reasons why they want to talk to me. One is because they have an issue they feel needs to be resolved. Mr. Bin Attash and his issues with his lawyers is a perfect example. I have met with him probably ten times to explain the rules, my role in the process, to let him know and give him my word that we are going to work through this issue.
The other time I will go talk to them is that sometimes they want to tell me in front of their lawyers or their paralegals that they think these people are doing a good job, which is interesting.
LD: Why did you decide to go to law school?
BGJB: I was a supply and logistics officer and sat on the administrative separation boards in Quantico, Va., which are held if a service member engages in minor misconduct and the command wants to process them out of the service. It is essentially the way you can get fired without going to court. I sat on these boards every other week for six months.
I remember watching a Marine Judge Advocate defending a Marine and thinking to myself that I could do a better job. Not because he was doing a really bad job, but it felt like it was an opportunity to help the Marines. Once I was involved in that process it made me decide that I wanted to be involved in the military justice process. My oldest brother also is lawyer.
LD: So you knew you wanted to end up on the defense side?
BGJB: It’s interesting. What drew me to want to go to law school was watching a Marine defend a Marine, thinking that was cool. But as I came out of law school I wanted to prosecute. My first assignment was as a legal assistance attorney, then as a defense counsel, and then I became a prosecutor. I really liked that, and later I also really liked being a judge. It is almost like whatever job I have been in, I have enjoyed.
But when I became Regional Defense Counsel for the Marine Corps on the East Coast, is when I really felt like I had found my calling – leading defense counsel. I went from the regional role to being the Chief Defense Counsel of the Marine Corps. I really like leading litigators.
LD: Some lawyers in the Sept. 11 case believe that trial is several years away. How long do you expect to stay in this role?
BGJB: I think it is a three-year assignment, but I don't know. Nobody said to me when I came in, "You are here for X amount of days." I want to stay in this position as long as I am effective. So, if that means five years, it means five years. If it means one year, it means one year.
LD: Earlier today, one of the lawyers for Walid bin Attash, Michael Schwartz, told Judge Pohl that he did not feel comfortable bringing staff here because of the cancer concerns at Camp Justice, where everybody works and where many people sleep in trailers when traveling here for hearings. You initially ordered defense team members not to sleep at Camp Justice, then rescinded that, so people are sleeping here this week.
BGJB: I received the February interim report on these health concerns in April, and found out that most of the testing had been done in October. Gen. Martins got the report the same day I did. It is just disappointing that it took so long for either of us to get that report I came down here pretty much right away, but I didn’t really understand the report. I was most concerned about where my people were sleeping. I am not a scientist, but I knew from Hurricane Katrina there were problems with those FEMA trailers and formaldehyde in them. What I couldn't understand from the February report is why the formaldehyde levels were high and how they were solving that issue, and I just did not get the questions answered that I asked. I made the decision that we are not staying in the trailers.
Fast forward to this month, and they completed a second set of testing in the trailers. I talked with the scientist that leads the public health team. He very clearly explained that the formaldehyde dropped, and why, by opening up the air conditioner vents and increasing the air flow. I am still substantially concerned about the other toxins that are here. The Navy Marine Corps Public Health Center has a fantastic reputation, and I am very comfortable with waiting for them to complete their work here. If the public health team had an immediate concern, I am confident they would have said, "Move out tomorrow."
Mike Schwartz and the Bin Attash team have a different position. That is actually an example of how I don't make their litigation decisions.