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 to compel testimony from a reluctant witness.
Potentially a first-of-its-kind order in the history of the military commissions, which date back to the Mexican-American War, the test of the war court's powers came just days after the 16th anniversary of the al-Qaida attack against the USS Cole. The bombing of the Navy destroyer off the coast of Yemen killed 17 Americans on board.
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.
Spath 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." A military spokeswoman confirmed only that there has not been an order like it since 9/11.
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.