New York federal judge declines to quash Guantánamo subpoena

A federal judge on Wednesday evening rejected a Hofstra law professor’s bid to quash a war court subpoena, clearing the way for the expert on legal ethics to testify on an opinion she gave the USS Cole death-penalty defense attorney who quit the Guantánamo war crimes case.

New York U.S. District Court Judge Gregory H. Woods’ ruling marked the first civilian court victory for the military judge in the USS Cole case in a nearly three-week showdown over who gets to decide if a civilian has to show up at the court in Cuba.

Chief war court prosecutor Army Brig. Gen. Mark Martins ordered the professor, Ellen Yaroshefsky, to report to war court headquarters in Alexandria, Virginia, at 9 a.m. Friday to testify by video-link to the Camp Justice court compound here.

RELATED: “Law professor seeks federal court protection against forced video testimony to Guantánamo

“Do not depart the proceeding without proper permission,” the general’s subpoena said.

“Failure to appear could result in your being taken into custody and brought before the Military Commission under a Warrant of Attachment, or in the imposition of other lawful sanctions,” he warned.

Martins announced in court Thursday that Yaroshefsky would likely testify Friday at 2 p.m.

Yaroshefsky new
Hofstra Law School Professor Ellen Yaroshefsky, who specializes in legal ethics. Hofstra Law School

The USS Cole case judge, Air Force Col. Vance Spath, is considering whether to hold contempt proceedings against three civilian attorneys — Rick Kammen, Rosa Eliades and Mary Spears — who quit the defense team of Abd al Rahim al Nashiri, the alleged mastermind of the Oct. 12, 2000, USS Cole bombing. The Saudi is charged in a death-penalty case.

Spath ordered the law professor to answer his questions about her eight-page Oct. 5 ethics opinion that lawyers used as a basis for their resignations from the case.

RELATED: See the professor’s opinion here.

Lawyers for Yaroshefsky had made a preemptive habeas corpus filing for an emergency restraining order against the Pentagon to try to prevent U.S. marshals from taking her into custody. In a similar incident a year ago, Spath such action when he ordered a Massachusetts attorney, Navy reservist Stephen Gill, to testify by video feed between Virginia and Guantánamo and Gill ignored the summons.

Air Force Col. Vance Spath

In that episode, civilian lead case prosecutor Mark Miller advised the judge that he had no authority to order a witness to come to the remote base in southeast Cuba. So U.S. marshals picked up Gill at his Massachusetts home, held him in a Virginia lockup overnight and delivered him to the war court video site to testify.

In a filing at the New York federal court, a Justice Department attorney called the effort to get an injunction by the Long Island law school professor “an impermissible collateral attack” on the war court, “baseless” and an end-run around “available remedies or procedural protections from the Military Commission,” the judge ruled from the bench.

Earlier this week, war court prosecutor Air Force Maj. Michael Pierson told Spath that history was on their side.

He said: “The government finds it remarkable that a citizen of New York, who has been on notice, since at least the 1870s, that they may be compelled to provide information before a military tribunal and who voluntarily allowed her purported expert opinion to be injected into these proceedings, would now question that she was going to be required by the commission to attend a hearing of the commission and provide further information on her opinion.”

University of Texas Law professor Stephen Vladeck said Pierson was likely making a reference to the 1874 Articles of War, a precursor to the U.S. court martial system called the Uniform Code of Military Justice. The articles give military judges “power to issue the like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or District where such military courts shall be ordered to sit, may lawfully issue.”

Vladeck, however, disagreed with the notion that the military has the authority to arrest or otherwise confine a civilian who refuses to comply with a military subpoena. “The relevant statute makes such refusal a civilian criminal offense,” he said.

RELATED: See the Army general’s war court subpoena

Brig. Gen. Mark Martins, the chief prosecutor for war crimes, at a May 6, 2012, news conference at Camp Justice, the U.S. Navy base at Guantánamo Bay, Cuba. WALTER MICHOT Miami Herald file photo

Spath has been holding pretrial hearings in the death-penalty case despite the mid-October resignations. The three lawyers quit with the permission of the chief defense counsel for military commissions, Marine Brig. Gen. John Baker. Spath says only he has the authority to release attorneys of record.

Kammen said the three lawyers resigned over something secret that’s gone on at the prison that neither the public nor Nashiri can know. Baker, who had access to the same classified information, agreed. Yaroshefsky offered her opinion based on information that is known to the public, including a series of problems with attorney-client privacy at the prison.

Spath declared Baker’s decision to approve Kammen’s resignation “null and void” earlier this month, ordered Kammen to come to court, and sentenced Baker to 21 days confinement to his quarters for refusing to recall Kammen.

After Baker spent 48 hours in a trailer behind the war court, his sentence was suspended by a senior Pentagon official, and his case is being reviewed. Kammen, meantime, has ignored two orders to appear by Spath, and has obtained a temporary protective order from an Indiana federal court.

Carol Rosenberg: 305-376-3179, @carolrosenberg