In a war court first, a witness who was reluctant to testify during pretrial proceedings was seized somewhere in the United States by U.S. Marshals on Tuesday, hours after the military judge in the USS Cole case ordered enforcement of a subpoena to testify.
Massachusetts attorney Stephen Gill was due to appear Monday by video-teleconference to testify on what he perceived to be unauthorized behind-the-scenes involvement by Pentagon legal advisers in the case after their disqualification by the judge, Air Force Col. Vance Spath.
Gill is a Navy Reserve lieutenant commander who began testifying by video-teleconference last month. He is not currently mobilized to service, meaning he was ordered to testify as a civilian.
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But Gill didn’t show up at a conference room in Arlington, Virginia, on Monday, in what was described in open court as a dispute over reimbursement of expenses.
Judge Spath announced in court Tuesday morning that he had signed a “warrant of attachment” the night before; after lunch the lead case prosecutor, Assistant U.S. Attorney Mark A. Miller, announced that Gill was in custody and being taken to Virginia.
Earlier, defense attorney Rick Kammen said he heard through a military commissions representative that Gill would be unavailable Tuesday because he was attending a military funeral.
The issue at hand — alleged defiance of a war court disqualification order — is an ancillary one in the death-penalty prosecution of Saudi captive Abd al Rahim al Nashiri, accused of orchestrating al-Qaida’s 2000 bombing of the USS Cole off Yemen. Seventeen American sailors died, and dozens more were wounded.
The Saudi sat passively in court throughout the hearing but was excused for part of the morning to a holding cell after reporting to his lawyer that he was feeling ill.
National Security scholar Stephen Vladeck, who monitors military commissions closely, said such a move was unprecedented.
“It’s the first time I’ve heard of the commission issuing anything like this kind of order,” he said by email from the University of Texas School of Law in Austin, where he is a law professor.
Vladeck questioned the war court’s authority to make such a move. “I have to imagine he has a pretty good habeas claim,” he said of Gill’s overnight detention to testify. “If the commissions can’t usually issue extraordinary writs, what is the government’s legal basis for detaining him?”
In court Monday, prosecutor Miller predicted that Gill, an attorney in Massachusetts who unsuccessfully ran for public office, would resist: “He is litigious, he’s going to fight this. I don’t know how he’s going to fight it. I don’t want to suggest to him how he’s going to fight it. I’m sure he has already thought that through.”
The issue of subpoena power and authority to force a civilian witness to Guantánamo came up in last week’s Sept. 11 pretrial hearing session. In this instance, Gill had requested that he be put back into uniform temporarily to testify here in person. Prosecutors arranged for Gill to testify at what chief prosecutor Army Brig. Gen. Mark Martins described in court as a “state-of-the-art” video-teleconference facility at Office of Military Commissions headquarters in a commercial building called The Mark Center.
Miller reported Tuesday evening: “They made arrangements. They have him in custody. He will be arriving at the Mark Center at 9 a.m., and he will be available to testify at 9:15 a.m.”