Military Judge Issues First-of-Its-Kind Order to Compel Testimony from U.S. Witness in USS Cole Bombing Trials
By Britain Eakin, Courthouse News Service
GUANTANAMO BAY NAVAL BASE, Cuba (CN) — A military judge presiding over the trials connected to the bombing of the USS Cole announced Tuesday that he signed a warrant the night before to compel testimony from a reluctant witness.
Potentially a first-of-its-kind order in the history of the military commissions, the test of the war court's powers came just days after the 16th anniversary of the al-Qaida attack against the U.S. Navy destroyer off the coast of Yemen, which killed 17 Americans on board. A military spokeswoman has not yet confirmed whether the order is the first of its kind or the first since 2010.
Prosecutors brought the issue to a head Monday by requesting a writ of attachment to compel testimony from Lt. Cmdr. Stephen Gill.
A former legal adviser to the military commissions, Gill had apparently testified without qualms during September proceedings, appearing by video teleconference from the Mark Center, the Office of Military Commissions headquarters, in Arlington, Virginia.
Air Force Col. Vance Spath revealed this morning that he signed the warrant on Monday night to compel testimony from Gill.
The judge took care before issuing his decision because the text of the military-commission regulation on subpoenaing witnesses appears to limit this power to video-teleconference testimony.
"A civilian witness may be subpoenaed to testify at a military commission hearing from a site in the United States through remote audiovisual device, or through a deposition," regulation 13-5 b states.
Such an order has never been delivered before, however, and Spath told the court Monday, "I want to get the call right."
After the lunch break Tuesday, government prosecutor Mark Miller told the court that Gill had been taken into custody, but offered no information about where he was being held.
Miller told Spath at the close of Tuesday's hearing that Gill would be ready to testify Wednesday morning at 9:15. Spath did not say what will happen if Gill still refuses to testify.
The issue on which Gill is expected to testify is Spath's disqualification of the convening authority staff in March 2015 from the case of Abd al-Rahim al-Nashiri, the Yemeni accused of masterminding the USS Cole attack.
Spath had disqualified the staff for unlawful meddling, related to a now-revoked Pentagon order that would have required judges presiding over the military commissions to live at Guantanamo until its three active cases conclude.
With the military commissions having trickled at a slow drip for the last 4 1/2 years, prosecutors say the order was an apparent effort to speed up the proceedings.
Al-Nashiri's defense team meanwhile saw the order as a way to put unfair pressure on the pretrial process, a serious issue for detainees like their client who faces the death penalty.
The CIA held al-Nashiri at one of its secret overseas prisons after his 2002 capture in Dubai. The defendant is among just three former CIA captives whom the agency has admitted to waterboarding.
Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects and hazarding a vessel.
Before the Pentagon revoked its position on residences for Guantanamo judges, the order forced the convening authority at the time, Vaughn Ary, to resign. Paul Oostburg Sanz has since replaced Ary.
Though Spath disqualified five of Ary's legal advisers, Gill complained that some of the staff had remained involved in al-Nashiri's case. The defense outlines this allegation in a renewed motion to dismiss the charges against al-Nashiri for continued unlawful meddling.
"Disqualified members of the convening authority's staff - including those that this commission specifically barred by name - have knowingly and willfully defied this commission," the motion states. "They have continued to direct the decision-making process relevant to this case, both directly and through subterfuge."
But prosecutors have countered that the defense allegations are focused on a two-week period of transition between the new convening authority and the outgoing crew.
"The defense's allegations that the disqualified legal advisors and staff continued to act in this case are wildly overstated and, at times, simply wrong," the prosecution said in its response to the defense motion for dismissal.
Al-Nashiri's capital defender Richard Kammen questioned one of the disqualified legal advisers, Mark Toole, on Monday afternoon.
Toole said he was aware that Gill, who he described as "glum" and a "poor employee," had complained about "people" talking about the al-Nashiri case in front of him, but insisted that he did not deal with any issues related to the case following Spath's order.
Ripples for Trial of Accused 9/11 Plotters
Gill's testimony exposed for the second time in less than one week confusion about the rules governing the subpoena power of military commissions at Guantanamo.
At an Oct. 12 hearing, Jay Connell, lead attorney for accused 9/11 plotter Ammar al-Baluchi, raised a similar issue concerning the military commission's ability to compel witnesses to come to Guantanamo in the future to testify.
Whereas the military commissions can compel witnesses for testimony by video teleconference, Pentagon regulations say the commissions cannot force witnesses to come to Guantanamo.
"A civilian may not be compelled by subpoena to leave the United States and travel to a foreign country; therefore, a subpoena issued to a civilian to testify at Guantanamo Bay may not be enforced in the United States," regulation 13-5 b states.
Connell had argued Wednesday that the commission actually does have the authority to compel witnesses. The Military Commissions Act states that the process "shall be similar to that which the courts of the United States having criminal jurisdiction may lawfully issue." Citing precedent, Connell said the law requires live witnesses, not virtual witnesses.
The secretary of defense "got it wrong" with regulation 13-5 b, he said, while Congress got it right with the Military Commissions Act. Connell asserted that the Pentagon regulations are "structurally unconstitutional."
Connell and military judge Army Col. James Pohl engaged in a hearty back and forth about how to enforce a foreign subpoena.
"Is the U.S. Marshals Service going to go pick him or her up and put him on a plane and come with him to Guantanamo," Pohl asked.
Connell suggested the Marshals Service would have the authority to do that.
Chief prosecutor Army Brig. Gen. Mark Martins urged Pohl to refrain from ruling on the matter now, suggesting that it is more appropriate to wait until there is an actual and particular witness to compel. He reminded the court that the five accused 9/11 plotters are "alien unprivileged enemy belligerents" who are being appropriately and lawfully held.
"They're getting compulsory process under that statute," Martins said. "They have many recourses within the process, and they can seek to get that particular witness that you're mentioning. Once we tee it up in a very precise way, we are confident that this structure is giving every bit of that right to the accused."
Failure to resolve this issue last week led Connell to voice his frustration at a Friday press conference.
"After 4 1/2 years when do we get to know what the rules are?" he asked.
Martins responded to the comments during his own press conference, defending the rules presented in the 2009 Military Commission Act (pdf) as clear and constitutional.
"There's a very clear procedure authorized by an act of Congress that was duly exercising its powers under some very important Supreme Court cases," Martins said. "Not liking the rules is not the same thing as the rules lacking authority."
To Learn More:
Appeals Court Ruling Challenges Legitimacy of Military Commissions For Guantánamo Prisoners (by Noel Brinkerhoff, AllGov)
Guantánamo Military Board, for First Time, Orders Continued Imprisonment without Trial for Detainee (by Noel Brinkerhoff, AllGov)
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