Military Commissions

2/19 Motions Session #4: Subpoena Power

By Wells Bennett
Wednesday, February 19, 2014, 2:46 PM

Aaaaand we’re back.  In AE184, Al-Nashiri seeks the military judge’s assistance, in sending a subpoena to Jose Rodriguez pursuant to Rule 703. That’s the controversial former CIA officer and author of “Hard Measures”---a book describing and defending abuses inflicted on certain detainees by the CIA, during interrogation abroad.  Thus the issue implicated by the motion: the court’s authority to compel a witness to travel from the United States to Guantanamo against his or her will.

CDR Brian Mizer believes that the military commission has this authority, under the Military Commissions Act as implemented by Rule 703. The latter permits commissions to require the attendance of foreign witnesses, pursuant to another statute, 28 U.S.C. 1783.  To be sure, there’s some contrary authority here, Mizer concedes: Regulation for Trial 13-5 says U.S. civilian witnesses cannot be made to attend a trial in foreign territory. But this conflicts with both the rule and its authorizing statute; according to Mizer, both of these favor his view, and trump the Regulation.  And in any case think how odd it would be, Mizer goes on, if Judge Pohl could bring foreign witnesses to Guantanamo, but not U.S. citizens.  (Mizer concedes that courts martial cannot compel foreigners to appear; but by providing explicitly for that situation in courts martial but not in commissions, Congress suggested a broader compulsory power for the latter.)  Judge Pohl: who would enforce my subpoena, if I issued one?  U.S. Marshals in the appropriate U.S. district, answers Mizer; Rodriguez also could move to quash the subpoena there, or in Guantanamo.

CDR Andrea Lockhart takes issue with Mizer’s effort to fashion a brand new rule, one allowing Mizer to compel a U.S. citizen to come to Guantanamo.  In her view, the real rules go something like this: a witness, if asked, can come to Guantanamo voluntarily or remotely via video; upon issuance of a subpoena, the witness can be compelled to testify.  Still, when pressed, Lockhart agrees that the commission cannot compel a witness to come to the ELC and testify in person; it seems the witness can choose video, or choose to travel if he or she likes.  The prosecutor doesn’t explain to Judge Pohl how his orders will be enforced, in the event of non-compliance.  That’s a down-the-road issue, to be litigated another day, she says.

Back to Mizer, who hangs his hat on 1783 and on the Military Commissions Act.  The latter, Mizer notes, says that the opportunity to obtain witnesses and testimony in a commission shall be comparable to that used in an Article III court.  And the power conferred, moreover, runs anywhere that U.S. jurisdiction does.  Judge Pohl is still skeptical, wondering aloud about whether Guantanamo more closely resembles Guam, a U.S. territory, or Okinawa.  Naturally Mizer thinks the former, again emphasizing the statutory language that supports a special, more robust subpoena authority for Guantanamo military commissions.  The latter are a hybrid, he says, and akin in this respect to a federal civilian court.  Finally, Mizer adds that Rodriguez’s statements---if obtained---would impeach the government’s case.  This raises Judge Pohl’s eyebrow; after all, Mizer hasn’t yet sought to obtain Rodriguez’s testimony voluntarily.  Isn’t that a precondition to any discussion about compelling Rodriguez?  The defense lawyer refers to upcoming evidentiary motion deadlines; to meet those, he needs to get issues like these resolved, and therefore has pushed the subpoena question to the fore.

AE184 is thus under advisement.