GUANTANAMO BAY NAVAL BASE, Cuba -- A Long Island law professor is seeking a federal judge's protection from an order to testify by video feed next week at a USS Cole case hearing. It is the latest test of the reach of the war court created after the Sept. 11 attacks to try non-citizens.
In court Friday, prosecutor Air Force Maj. Michael Pierson called Hofstra law professor Ellen Yaroshefsky's pre-emptive habeas corpus filing at the U.S. District Court in Manhattan part of a "collateral attack" on the military commission system.
While war court prosecutors haven't yet subpoenaed Yaroshefsky and three "rogue counsel" who have defied a judge's order to appear, Pierson said, Congress and the Secretary of Defense have absolutely granted the power to the prosecutors.
At issue is what Air Force Col. Vance Spath, the judge, can do about the resignations of three civilian defense attorneys for Saudi captive Abd al-Rahim al-Nashiri -- death penalty defense lawyer Rick Kammen and Pentagon employees Rosa Eliades and Mary Spears. The defenders quit in October, citing a classified ethical conflict, after getting advice from Yaroshefsky, who had no access to their secrets.
Spath says they didn't have his permission to resign, considers them attorneys in absentia and is considering contempt proceedings over their "shocking and appalling" decision to "abandon" al-Nashiri, the alleged mastermind of the Oct. 12, 2000, USS Cole bombing. He is charged in a death penalty case.
So Spath has ordered Yaroshefsky to war court headquarters in Virginia next week to answer his questions about her eight-page Oct. 5 ethics opinion the lawyers used as a basis for their resignations.
When the judge tried to do the same thing -- order Kammen, Eliades and Spears to appear by video from Virginia -- Kammen got a federal court in Indiana, where he has a law practice, to temporarily suspend enforcement of that order.
Now lawyers for the law professor have similarly filed a pre-emptive habeas corpus petition in federal court against Spath and Secretary of Defense Jim Mattis to prevent prosecutors or the judge from sending U.S. Marshals to force her to war court headquarters.
The thought is not far-fetched. Spath had marshals seize a recalcitrant witness in Massachusetts last year, hold him overnight in a Virginia jail and deliver him to the same place for video testimony.
Lawyers for Yaroshefsky argue in their petition before U.S. District Court Judge Gregory H. Woods in New York that the Guantanamo war court "lacks any authority to detain or seize United States citizens." They said Yaroshefsky may not be allowed to bring her own lawyers into "the secure government facility" for Spath's questioning, and she and does not want to go.