In an unusual war court drama, a demobilized Navy Reserve lawyer testified in the USS Cole case Wednesday by video from Virginia — “under extreme duress,” he said — a day after the war court judge sent U.S. Marshals to pick him up.
At one point, a letter from a Virginia public defender arrived at the Guantánamo court offering witness Stephen Gill legal assistance. The judge abruptly delayed testimony to consult a legal precedent dating to the Civil War, then ruled that Gill could be questioned without knowing about the lawyer’s letter.
“He might be detained, but he’s not being interrogated. Nobody suspects him of a crime,” said Air Force Col. Vance Spath, the judge.
The subject of his testimony was behind-the-scenes exchanges in the office of the Legal Adviser for Military Commissions after the Cole case judge disqualified some lawyers from the case last year. It’s an ancillary pretrial issue in the death-penalty case of Abd al Rahim al Nashiri, 51, accused of orchestrating al-Qaida’s 2000 bombing of the USS Cole off Yemen. Seventeen American sailors died, and dozens more were wounded.
But Gill testified in the first instance at the court of a judge here reaching into the continental United States to order U.S. Marshals to force a subpoenaed witness to court. Lawyers debate whether the war court has the authority to order a civilian witness to testify in person at Guantánamo. But Gill was to testify by video, anyway.
Gill said he was picked up at his home, apparently in Massachusetts, on Tuesday “at gunpoint,” he estimated by 20 officers, put in three-point restraints and held overnight at an Alexandria County, Virginia, detention facility.
He first appeared on the video conference screen looking distraught and wiping his eyes in a button-down business shirt. At one point, he sounded like a Guantánamo detainee complaining about conditions of confinement: He was sleep-deprived, he said, because jail guards left the lights on all night, turned the temperatures down to maybe 50 degrees, pumping in “extremely cold air.”
Lead prosecutor Mark Miller, a U.S. attorney on loan to the war court, urged the judge to get the testimony over with. He invoked the victims, sailors killed and wounded in the USS Cole attack, and said to do otherwise would be to allow Gill to make Spath’s court “a kangaroo court.”
This was Gill’s second time testifying by video conference from Virginia at the war court, to wrap up testimony from September that was cut short because he was running for state office. He lost.
Gill balked at coming to Virginia this time, according to arguments in court, because war court administrators rejected reimbursing his expenses last time over a missing $3 toll receipt. He asked, instead, to testify either from the Navy War College in Newport, R.I., or be mobilized to come to Guantánamo.
Prosecutors, who arrange for defense witness testimony, rebuffed the request and got a subpoena ordering him to appear Monday by video from Arlington, Virginia. He didn’t show up. Monday night, Spath swore out a Warrant of Attachment, and Wednesday morning, soon after Gill appeared on the video screen, he declared his testimony potentially unreliable due to lack of sleep.
At one point, Spath told Gill to take a catnap while the judge read a precedent invoked by Eastern Virginia Federal Public Defender Geremy Kamens — Ex-Parte Merryman, a habeas corpus petition dating to the Civil War.
The federal defender wrote Gill, offering to represent him — and somehow got it delivered inside the war court, where the accused terrorist watched silently on the last day of this month’s pretrial hearing for a tribunal that has no start date.
“I understand that you have been detained by the United States military, that you are present in the Eastern District of Virginia, and that you are a civilian citizen of this country,” said the letter, which Gill got only after he finished his testimony and was released from federal custody.
“In particular, a substantial question may exist whether the U.S. military possesses any authority under our Constitution to detain you outside of ordinary civilian judicial process in time of peace.”
Spath declared Merryman “wholly inapplicable,” found that Gill had no right to counsel and ordered him to answer questions from Nashiri’s lawyer, Rick Kammen. Kammen, out of earshot of Gill, made clear in court that he was not related to the public defender and hadn’t alerted him to Gill’s predicament.
Nashiri’s lawyers are trying to show that legal advisers disqualified by Spath last year continued to work on the case. Gill wasn’t disqualified and testified that he tried to segregate legal work from the others. Other war court staff members described Gill as a troubled employee with marital problems who was fired from war court work for failing to get a security clearance and underperforming.
Gill testified Wednesday that nobody complained to him about his work while he was there. In fact, under questioning from Kammen about his disagreements with other lawyers at the Legal Adviser staff at the Office of Military Commissions, he became visibly energized on screen.
The federal public defender never did get to see Gill in detention.
On Wednesday evening, after the Nashiri prosecutor told Spath that the U.S. Marshals had released Gill, Public Defender Kamens said: “The idea that a military commission could order the seizure of a civilian and they wouldn’t be entitled to counsel seems crazy to me.”
▪ Link to the compelled lawyer’s filing, Request for Relief from the judge.
▪ Link to Gill’s radio interview, after testimony and release.
▪ Full text | Letter read in court
Dear Mr. Gill:
I understand that you have been detained by the United States military, that you are present in the Eastern District of Virginia and that you are civilian citizen of this country.
I am the Federal Public Defender for the Eastern District of Virginia, and my Office may be able to assist you if you are eligible for court-appointed counsel under these circumstances and my Office is appointed to represent you. In particular, a substantial question may exist whether the U.S. military possesses any authority under our Constitution to detain you outside of ordinary civilian judicial process in time of peace (Cites to Ex Parte Merryman.)
If you would like to request our assistance, please do so and I will endeavor to determine whether my Office can be appointed to represent you in this matter.
Geremy C. Kamens
Federal Public Defender, E.D. Va.