GUANTANAMO BAY NAVAL BASE, Cuba (CN) - After spending the night in jail for refusing to testify the day before, a demobilized Navy reserve lawyer testified Wednesday morning in the USS Cole bombing case "under extreme duress."
Appearing via video teleconference, Lt. Cmdr. Stephen Gill told the court that an estimated 20 armed U.S. marshals seized him from his home Tuesday "with deadly force," put him in ankle, waist and wrist shackles, and jailed him overnight at the county detention facility in Alexandria, Virginia.
It was the first time
a military judge presiding over the Guantanamo military commissions asked the U.S. marshals to force a subpoenaed witness to testify.
Gill immediately cast doubt on his reliability as a witness, saying he was "extremely exhausted" and "not clear-headed."
"I'm not well sir, I'm under extreme duress," Gill said when asked how he was doing by Richard Kammen, lead counsel for suspected USS Cole bombing mastermind Abd al-Rahim al-Nashiri.
Plotted by al-Qaida, the Oct. 12, 2000, attack of the Navy destroyer off the coast of Yemen killed 17 Americans on board.
Gill called the writ of attachment that Military Judge Air Force Col. Vance Spath signed to compel his testimony an "unlawful warrant."
Spath nevertheless ordered Gill to go ahead and testify. Shortly into Kammen's questioning, however, a letter from Federal Public Defender Geremy Kamens with the Eastern District of Virginia appeared in the war court. The letter called into question the constitutionality of Gill's detention and offered him legal assistance if he was eligible for counsel.
Spath ordered a short recess to look up a Civil War-era case, Ex Parte Merryman
, to determine whether the U.S. marshals had authority to seize Gill. After a 15-minute break, Spath determined the case was "wholly inapplicable." Gill had no right to counsel because he was not being interrogated and isn't suspected of a crime, Spath said.
"He's here to testify in court. It is legal," Spath continued.
The defense and prosecution argued over whether to inform Gill about the letter before he testified, something Kammen told Spath he felt obligated to do.
Lead prosecutor Mark Miller meanwhile urged the court to proceed with the testimony.
"It's a little late for this at this point," Miller said. "Mr. Gill doesn't get to run this courtroom."
Invoking the 17 victims of USS Cole bombing, Miler suggested that Gill was trying to turn the court into "a kangaroo court" -- a quip usually reserved for Kammen, who wore a kangaroo pin to court Wednesday.
After a short debate, Spath ordered Gill to testify without informing him of the letter.
A former legal adviser to the military commissions, Gill had apparently testified without qualms during September proceedings, appearing by video teleconference from the Office of Military Commissions headquarters in the Mark Center in Arlington, Virginia. He had been ordered to continue the testimony there on Tuesday, but apparently wanted to testify at Guantanamo or the Navy War College in Newport, Rhode Island, instead. According to comments Kammen made in court Tuesday, Gill was also upset about not being reimbursed for a $3 toll when he last testified.
Before he testified Wednesday, Gill complained about his detention conditions, noting that a bright light in his cell and noise in his cellblock kept him awake all night. He said he slept in his clothes because the cell was frigid.
"They were pumping in extremely cold air," he said.
On Wednesday, Gill continued testimony about alleged violations of Spath's 2015 order which disqualified convening authority staff in the office of the Legal Adviser for Military Commissions from the al-Nashiri case.
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.
Al-Nashiri's defense team believes disqualified staff continued to work on the case. Gill claims he was demobilized in retaliation for complaining about the alleged violations.
Gill told the court Wednesday that no one had ever complained about his work, and that he had gotten positive feedback "all over the place" from his superiors. On Tuesday, several of his colleagues testified that Gill was a troubled employee with poor performance issues.
After Gill's testimony, Spath signed a warrant for his release. As Wednesday's hearing wrapped - the last in this round of pretrial hearings in the al-Nashiri case - Miller told the court that Gill had been released and had lunch.
The court will reconvene the case in December.