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This Week at the Military Commissions, 10/19 Session: The Return of the Prodigal Witness

Isaac Park
Tuesday, October 25, 2016, 10:43 AM

Hearings continued on Wednesday in the Al-Nashiri case. After some preliminary matters, the commission turns immediately to the matter at hand: the testimony of Stephen D. Gill, on redirect. On Monday the 17th, Gill refused to travel to the Mark Center in Virginia to testify by video-link. In a Gitmo first, military judge Air Force Colonel Vance Spath authorized a writ of attachment to apprehend him and compel him to testify.

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Hearings continued on Wednesday in the Al-Nashiri case. After some preliminary matters, the commission turns immediately to the matter at hand: the testimony of Stephen D. Gill, on redirect. On Monday the 17th, Gill refused to travel to the Mark Center in Virginia to testify by video-link. In a Gitmo first, military judge Air Force Colonel Vance Spath authorized a writ of attachment to apprehend him and compel him to testify. Gill was arrested and detained by the U.S. Marshals yesterday.

Over video-link, Gill complains that he’s “not well” and “under extreme duress, having been taken from my home but 20 law enforcement officers yesterday at gunpoint, being shackled and held in a jail cell all night.” He hasn’t been able to sleep and he doesn’t know where he is. For that reason, he argues that whatever he says today is “inherently unreliable.”

But quickly, there’s a break in the testimony. Defense counsel Richard Kammen has been handed a document, Exhibit 332XX—a letter from the Federal Public Defender for the Eastern District of Virginia to Gill, offering to assist him in challenging the government’s authority to hold him under Ex parte Merryman. The defense wants to let Gill know that they’ve received the letter.

For the prosecution, an angry Mark Miller strenuously objects. “It’s a day late and a dollar short,” Gill is in the middle of testimony, and public defenders don’t get to run the military commission from Virginia. Now it’s the prosecution’s turn to throw around the term “kangaroo court”: “This is what … Gill is trying to turn this into.”

Judge Spath expresses doubt that there is a problem under Ex parte Merryman: Gill wasn’t detained by military authorities, and the U.S. Marshals Service has the authority to execute military writs of attachment. But he admits that “it’s been a long time” since he’s read Gideon v. Wainwright, and it troubles him that Gill is not yet represented by counsel. So Judge Spath suggests that Gill “take a nap for the next half hour” while the judge goes to reread the relevant cases.

After the recess, Judge Spath concludes that Merryman is “wholly inapplicable” and that Gill doesn’t have a right to counsel when he is merely being detained for testimony in court. He instructs defense counsel not to tell Gill about the letter until after his redirect.

Redirect Examination of Gill

Back to the redirect. In response to questioning from Kammen, Gill recounts his work on the Al-Nashiri case and how he came to be the legal advisor on the case. Gill establishes that he received nothing but positive feedback during his time at the Convening Authority. After Judge Spath’s order that much of the the Convening Authority was to step aside from the Al-Nashiri case, an “ad hoc, open bay sort of consensus” arose that Gill was the “last man standing.”

Gill turns to his complaints about Mark Toole, deputy legal advisor at the Office of the Convening Authority for the Office of Military Commissions, who had been ordered off the case by Judge Spath. On Gill’s account, Toole did not segregate himself from the case as ordered, but instead tried to use Gill as a “straw man to simply transmit his work.” Toole questioned Gill “regularly” at “ad hoc” meetings about the Al-Nashiri case about things that shouldn’t have been on his radar and would discuss matters relating to Al-Nashiri around others. In response, Gill sent several complaints up the chain of command — first to Colonel Ed Sheeran (no relation), and then to Admiral Quinn. But nothing happened.

Gill notes that “prophylactic measures” he suggested to comply with Judge Spath’s order were generally rejected by Toole. Toole turned down the creation of a separate “tracker” for events relating to Al-Nashiri and rejected password protection of files relating to the case.

The questioning then turns to Gill’s job performance. Gill testifies that he received no complaints about his work. On one occasion, he left his uniform hanging on a lamppost outside his apartment while moving his trash to the curb and showed up to work without it, but this wasn’t an incident that struck him as notable. (And, not to worry, the “criminal element” was unable to steal his “beautiful polyester pajamas”). Other than that, though, Gill testifies that nobody ever told him his work was substandard, not good, or anything of the sort: “Given that we’re supposed to essentially regurgitate prior rulings, a chimpanzee could do this job.” (In a follow-up question, Kammen helpfully clarifies that nobody ever told Gill his work wasn’t “up to chimpanzee standards.”)

After his second complaint to Quinn, however, Gill testifies that Quinn “went over the top.” He began to blame Gill for Toole’s continuing violations of Judge Spath’s disqualification order. At that point, “the fix was in.” Gill was soon fired.

At this point, Gill is thanked for his testimony and informed of Kammen’s letter from the Federal Public Defender. The judge says that he has no idea how the public defender learned of Gill’s case, to which Gill responds: “No doubt through Carol Rosenberg.” And that’s it for Gill’s testimony for the moment.

Motion to Compel Discovery

After a short recess, Judge Spath issues a ruling on the motion to compel discovery from the defense, which originally requested “all communications of any nature between any governmental agency and the U.S. CMCR [Court of Military Commission Review].” The motion to compel is narrower, relating to “communications specifically between government counsel and the CMCR.” The judge grants the request, which only concerns two communications—one involving parking and the other regarding a posting of a CMCR decision on the public website. Both are administrative emails.

The Court then considers the defense’s “broaden[ed]” motion for the other materials previously requested in its discovery request. Judge Spath notes that if the materials that the government had produced to him were “relevant, necessary, and noncumulative” that they would be discoverable. But they are not: none of the documents presented to the judge are related to the defense’s allegations of unlawful influence. Judge Spath also clarifies that many of these communications are privileged, but emphasizes that because these emails were not discoverable in the first place, privilege alone was not necessary to bar discovery.

Judge Spath now turns to the defense’s motion to compel discovery relating to two people mentioned in Gill’s testimony: Colonel Sheeran and Lieutenant Colonel Lewis. Both were present in the meetings relating to Al-Nashiri and Toole’s conduct.

The government objects, with Lieutenant Paul Morris questioning whether these witnesses are “relevant or material to an interlocutory question,” the accusation of unlawful influence. Despite the defense’s allegations that Judge Spath’s order had been violated and that Gill had been “run off,” the government asserts that at the end of the day, “there was nothing going on.”

Defense Request for Funding

The commission then hears from both sides on the defense’s funding request. Two potential defense witnesses have been convicted in New York and are serving life sentences, but they’ve agreed to be interviewed if their lawyer, Bernard Kleinman, is present. The defense is therefore asking for funds to permit Kleinman to be present during conversations with the witnesses.

Kammen argues that because the government’s case depends on statements made in Yemen years ago—“hearsay” as it is—denial of access to these witnesses, who might be relevant to rebutting those statements, could be “extraordinarily prejudicial.” He acknowledges that this request is unprecedented, but notes that “there is no precedent because we’re in a new system.”

For the government, Lieutenant Cherie Jolly objects, noting that even in cases of ineffective assistance of counsel, the commission is not enabled to fund the defense. The defense’s inability to interview these witnesses serving life prisons in New York doesn’t amount to a constitutional violation. And without the legal authority to fund the defense, the Court would potentially face an Antideficiency Act violation if it did grant the defense the funds.

Judge Spath makes no rulings on these motions but reassures the parties that he’ll “let you know very quickly” to permit some scheduling of witnesses. With that, the judge gavels the court into recess to “get some work done on some more motion rulings.”

And here it is, your moment of zen:

TC [MR. MILLER]: . . . . We can’t allow other outside entities to interfere in this particular process. We talk about giving it legitimacy. This is a real court. I am a real lawyer. We have — this is a real case.

Isaac Park is a student at Harvard Law School. He graduated with a B.A. from Yale University in 2013.

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