They ask him to quash any potential subpoena to testify at Guantanamo, even virtually.
They argue that Spath overstepped his role by unilaterally calling Yaroshefsky as a witness, essentially usurping the role of prosecution and defense attorneys. And they say a military commission is less a court than "an administrative agency board that operates under tightly constrained powers and may not act outside of the powers explicitly given it by statute."
In court Friday, Spath said he was waiting to hear more about the scope of his power. "If a District Court judge tells me I don't have contempt authority we will pick up and go home," he said.
Pierson told Spath that prosecutors were confident the law was on their side. The prosecutor invoked an earlier precedent in which a civilian federal court chose to not meddle in a military trial in the interest of "comity, respect for the expertise of military judges and judicial economy."
That case, however, involved a classic court-martial. The war court at Guantanamo is a hybrid civilian-military tribunal created by President George W. Bush and reformed by President Barack Obama solely to try non-U.S. citizens for war crimes.
Seventeen U.S. sailors were killed in al-Qaida's suicide bombing of the Cole off Aden, Yemen, after two Yemenis pulled a garbage skiff packed with explosives alongside the ship and detonated it.
Court hearings this week have focused on lead prosecutor Mark Miller's continuing effort to pre-admit evidence, such as debris collected by sailors and federal agents aboard the foundering warship in the aftermath of the bombing.
Al-Nashiri's only lawyer in court all week, Navy Lt. Alaric Piette, consistently refused to question the witnesses or take part in the mini-hearing.
Spath explained in court that he was carefully bifurcating and setting aside pretrial preparation portions that, in his view, did not require the guidance of an American Bar Association-approved lawyer with death penalty experience. The judge called it "nuts and bolts" litigation.
Piette replied the evidence was the "nuts and bolts of a government case that they are trying to use to convict and execute Mr. Nashiri," and that "every aspect of a capital case" requires the guidance of a learned counsel.