Just when it seems like the ongoing, neverending saga that is the Guantánamo military commissions can’t get any stranger, there’s this: As Carol Rosenberg (who else) reported in today’s Miami Herald, “a witness who was reluctant to testify during pretrial proceedings was seized somewhere in the United States by U.S. Marshals on Tuesday, hours after the military judge in the USS Cole case ordered enforcement of a subpoena to testify.” Carol’s story provides the whole background, but in a nutshell, a witness who was going to testify from Virginia via remote videolink (as part of a hearing into whether disqualified Pentagon legal advisers were inappropriately continuing to participate in the Al-Nashiri case) refused to show, apparently due to a dispute over reimbursements. Nonplussed, the presiding judge issued an order of attachment, pursuant to which U.S. Marshals located and arrested the no-show witness.
In case you don’t keep your copy of the Manual for Military Commissions on your desk, Rule 703(e)(2)(G) expressly authorizes issuance of such a writ “to compel the attendance of a witness or production of documents,” if there is “probable cause to believe that the witness was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that appropriate fees and mileage were tendered to the witness, that the witness is material, that the witness refused or willfully neglected to appear at the time and place specified on the subpoena, and that no valid excuse reasonably appears for the witness’ failure to appear.” And 10 U.S.C. § 847 even makes it a crime (triable in civilian court) for military commission witnesses who have been subpoenaed to willfully refuse to appear, albeit only so long as the witness “has been provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States,” which appears to be the issue here.
So what’s the problem? Well, folks who remember the bad old days of the post-September 11 detainee litigation may recall the so-called “Non-Detention Act,” 18 U.S.C. § 4001(a), which provides that “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” and which therefore figured prominently in the litigation over the detention of US citizens as enemy combatants. Although 10 U.S.C. § 847 appears to provide authority for arresting the witness (and prosecuting him in civilian court) on grounds of non-compliance, it quite clearly does not authorize what Judge Spath did here, i.e., the issuance of a writ of attachment to compel the witnesses’s participation before the military commission by force. And although Rule 703(e)(2)(G) does expressly authorize Judge Spath’s actions, it isn’t an “Act of Congress,” and so cannot satisfy the Non-Detention Act. Nor do I think statutory authority can rest upon the All Writs Act, 28 U.S.C. § 1651, because (1) it seems like a stretch to suggest that such a statute is the kind of specific authorization the Non-Detention Act contemplates; and (2) the commissions have generally disclaimed their authority to issue extraordinary writs of all kinds (the CMCR used to even have a rule that petitions for extraordinary writs would be summarily dismissed).
Instead, I think the issue rises and falls on a statute no one has yet pointed to–28 U.S.C. § 1826(a):
Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information.
The question, methinks, is whether a Guantánamo military commission is a “court . . . of the United States” for purposes of this section. Although I have argued in other contexts that the answer is “yes,” there are substantial arguments to the contrary. If those arguments are correct, then the Guantánamo military commissions themselves, and not just the Department of Defense, are now unlawfully detaining a U.S. citizen–and all over what appears to be a fairly innocuous dispute over expense reimbursements. At the very least, here we have yet another major question of first impression in the context of the military commissions that would simply be a non-issue in civilian courts.
If this all weren’t so serious, and if the snail’s pace of the commissions weren’t such an embarrassing policy failure and de-legitimizing feature of the process (to say nothing of the still-unresolved major jurisdictional challenges in both Al-Nashiri’s case and elsewhere), it would almost be funny…