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This Week at the Military Commissions, 10/17 Session: Mr. Gill goes to Washington—Or Not

Chris Mirasola
Wednesday, October 19, 2016, 1:00 PM

After a short one-month break, military judge Air Force Colonel Vance Spath returned to gavel in the Al-Nashiri trial. After introducing a new member of the defense team, Rosa Eliades, the judge spends much of the early afternoon hearing argument on the wisdom of a writ compelling a witness to travel to Virginia for videoconference.

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After a short one-month break, military judge Air Force Colonel Vance Spath returned to gavel in the Al-Nashiri trial. After introducing a new member of the defense team, Rosa Eliades, the judge spends much of the early afternoon hearing argument on the wisdom of a writ compelling a witness to travel to Virginia for videoconference.

The witness at issue is Navy Reserve Lieutenant Commander Stephen Gill, currently residing in Rhode Island. Gill testified at the last Al-Nashiri hearing and was once, effectively, al-Nashiri’s sole legal advisor. He has refused to travel to the Mark Center in Virginia to testify by video this time around, and the prosecution has filed an ex parte request for an arrest warrant after Gill failed to respond to a subpoena. As an initial matter, all parties agree that defense counsel should be apprised of these ex parte requests.

For the prosecution, Mark Miller argues that Judge Spath has the authority, under Rule 703 of the Rules for Military Commissions, to issue such a warrant. In particular, Miller notes that there’s a probable cause finding that Gill will not appear—Gill even sent a letter to that effect—that the government had made multiple attempts to get him to Virginia, and, for good measure, that “he’s somewhat litigious and not shy to speak his opinion.”

After some additional back and forth, the debate boils down to whether it’s necessary for Judge Spath to compel Gill to travel to the Mark Center, as opposed to some other government office, for the videoconference. Miller argues that Gill had previously agreed to go to the Mark Center and that “setting up these sorts of VTCs is not an easy thing.” On behalf of the defense, Richard Kammen rebuts that there surely must be a Department of Defense facility somewhere in Rhode Island that could accommodate a videoconference; besides, he says, a past witness had video-conferenced in from outside the Mark Center. For good measure, Kammen points out that the subpoena used confusing and vague language and that defense counsel and Gill’s attorney should have an opportunity to review such a lengthy pleading.

On a more fundamental level, Kammen argues that it would not be appropriate to allow the prosecution to alone decide where a witness gets to testify. Such control, he says, would open up the possibility that a witness for the prosecution would be accommodated locally while a defense witness would compelled to go to Virginia. Miller attests that harassment of witnesses “won’t happen” and that “going down that road is just fraught with danger and it’s not ethical.”

For the prosecution, Brigadier General Mark Martins explains that the Mark Center is best equipped to meet the standards and requirements for remote testimony. He also emphasizes the fact that RMC 703 allows Judge Spath the discretion to balance all probative factors, including the litigation needs of the prosecution or defense, when deciding whether to compel a witness to testify at any given location.

In the end, all parties reach a consensus that, going forward, prosecution and defense will confer on a case-by-case basis as to where a witness should testify. Specifically regarding Gill, Judge Spath decides that an ex parte filing of the motion to issue the warrant of attachment was inappropriate, as it “does not bring light to the process.” He does, however, announce that he’ll sign the writ of attachment compelling Gill to travel to the Mark Center, given the number of documents that will be addressed during his testimony.

After a fifteen-minute break, the crew returns to hear testimony from Mark Toole, deputy legal advisor at the Office of the Convening Authority for the Office of Military Commissions. Toole is testifying regarding a defense motion on compliance with Judge Spath’s March 2015 order that all Office of the Convening Authority attorneys aside from Gill be removed from the Al-Nashiri case. Unlike Gill, he’s successfully made it to the Mark Center to testify remotely.

Kammen begins by asking about the extent to which the Office of the Convening Authority discussed “Change 1,” the Convening Authority’s controversial and eventually rescinded order directing military commission judges to move to Guantanamo Bay. Toole was involved in drafting the order and was disqualified from the case by Judge Spath in response.

After establishing who in the office may have discussed the order behind the scenes, Kammen inquires into the circumstances surrounding Gill’s hiring at the Office of the Convening Authority. Toole admits that he did not contact any references or prior commanders, nor did he ask for a writing sample, before hiring Gill. He also says that Gill underperformed during the early months of his tenure at the Office of the Convening Authority, but acknowledges that he supported Gill’s request to extend his billet for two months after he had been removed from the Al-Nashiri case.

Toole further confirms that he continued to supervise Gill once Gill became the only attorney allowed to continue on the Al-Nashiri case following Judge Spath’s disqualification order. It was during this time that Gill complained to his supervisor, Colonel Edward Sheeran, that Toole had tried to influence Gill’s handing of Al-Nashiri after he was removed from the case—a charge that Toole disputes.

Discussion of Toole’s continued involvement in Al-Nashiri after his removal continues for quite a while before the court turns to the question of whether alleged misconduct by Gill resulted in his firing in April 2015. Direct examination closes out by returning to Mr. Toole’s remarkably fuzzy account of Gill’s responsibilities after Gill became the only point of contact at the Office of the Convening Authority with authorized access to case documents.

After a ten-minute break, Judge Spath gavels in the last session of the day with Toole still testifying. For the prosecution, Lieutenant Paul Morris begins by inquiring into whether Mr. Toole “[took] any actions, [made] any recommendation, or [made] any decisions regarding Nashiri requests” after being excluded from the case. Tool says he did not. Though he recognized that Judge Spath’s order excluding most of the Office of the Convening Authority from the case “was legitimate,” Toole admits that, “it impacted morale, as you can imagine, pretty significantly.” The conversation soon returns to Gill, who Mr. Toole characterized as “not a good employee” and “glum most of the time.”

Kammen then returns to question Toole as to whether he truly refrained from taking “any actions” regarding Al-Nashiri after being precluded from the case. Kammen specifically brings up a binder produced by Gill on pending matters in the case, which Toole admits to “open[ing] the cover and glanc[ing] at the table of contents” and requesting that certain documents be removed. Toole says he took these actions because he “had very little confidence in the ability of Lieutenant Commander Gill to complete pretty much any task in an acceptable fashion,” but insists that he did not read anything in the binder.

Kammen then returns more generally to Gill’s allegations about Toole’s interference in the case, which boils down to the following accusation: “He [Gill] was complaining about you [Toole] violating Judge Spath’s order, and he complained about it over and over and over again until you guys fired him.”

“No, no,” says Toole.

Lieutenant Morris steps back up to focus on steps taken by Toole’s office to comply with Judge Spath’s preclusion order, including: segregating files (electronically and physically), hiring a new legal advisor and convening authority, and establishing separate Office meetings from Al-Nashiri matters. Then it’s back to Kammen again, who suggests that Gill’s complaints about Toole’s alleged continuing involvement in the case prompted Colonel Sheeran to send an email to the Convening Authority distribution list reminding staff precluded from Al-Nashiri not to discuss the case.

With that, Judge Spath rounds out the session with some administrative matters related to the next day’s schedule and gavels the court into recess. We’ll be back tomorrow for more hearings in Al-Nashiri.

Chris Mirasola is a Climenko Fellow and lecturer on law at Harvard Law School. Previously, he was an attorney-advisor at the Department of Defense Office of General Counsel.

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