A former U.S. Navy Reserve lawyer, who was handcuffed, shackled and arrested by U.S. Marshals to secure his testimony in a military commission case, filed a complaint Monday with the U.S. Department of Defense and the U.S. Marshal’s Service.
Stephen Gill of Marshfield, Massachusetts, is one of several civilian lawyers who recently have been caught in an ethical conflict battle stemming from the prosecution of Abd al-Rahim Al-Nashiri, the alleged mastermind of the October 2000 attack on the USS Cole.
Three other civilian lawyers, representing Al-Nashiri, who were excused from his defense because of ethical conflicts, and a law professor who provided them with an ethical opinion, resisted orders by Military Commission Judge Vance Spath to appear before him. The law professor, Ellen Yaroshefsky of Hofstra University School of Law, represented by the law firm Jones Day, unsuccessfully sought to quash the subpoena in federal court and went forward with her testimony on Nov. 17.
Gill’s situation predates their conflicts with Spath and differs in kind. In 2015, Gill was mobilized from the Reserves to serve as “legal advisor pro tempore” for the Al-Nashiri case, according to the complaints filed by his counsel, Washington attorney Mark Zaid. From March through April of that year, Gill reported multiple times to his superiors that certain federal employees were violating the terms of a disqualification order issued by Judge Spath.
In May 2015, Gill was released from active duty and returned to Massachusetts to resume his civilian law practice. Defense counsel for Al-Nashiri sought him as a witness in an evidentiary hearing and Gill voluntarily traveled to Alexandria, Virginia, to testify in a video teleconference in September 2016. He was informed he would testify again at some point from Oct. 17-21, 2016.
The second order to appear was when Gill’s problems began. In preparation for that appearance, according to his administrative complaint, he asked for a subpoena to be served at his office. He received the subpoena on Oct. 16, directing him to appear in Virginia the next day. On the 16th, he sent an application for relief from the subpoena under military commission rules to the chief prosecutor via certified mail/return receipt requested and e-mail. The prosecution, on or before Oct. 17, filed a request to arrest Gill for failing to respond to the subpoena. Judge Spath issued a “warrant of attachment” to the U.S. Marshals Service to enforce the subpoena.
Gill’s complaint said 15 U.S. Marshals and five uniformed local police officers “stormed” Gill’s home. When he opened his door, he said he saw marshals with blast shields pointing handguns at him and behind them, more marshals pointing rifles at him. He said he was ordered to put his hands up and get on his knees. Gill was put in waist and ankle shackles and handcuffs while three to four Marshals searched every room of his home.
The complaint says Gill was denied his wallet, mobile phone and medication. He was taken to a holding cell in the U.S. district court in Boston and later flown to Virginia, where he was held overnight in a cell in the Alexandria detention center. The next day, he gave his testimony despite telling the judge he was “not well” and under “extreme duress.” The judge also did not inform Gill until after his testimony that the federal public defender for the district had sent Gill a letter informing him of his right to counsel based on military detention of a U.S. citizen during peacetime.
Gill’s complaint charges that the military commission had no authority to issue a warrant of attachment to compel the appearance of a U.S. citizen. It also accused the U.S. marshals of trespass, false arrest and false imprisonment. The complaint alleged both the Defense Department and the Marshals Service abused law enforcement power.
A spokesperson said the Defense Department was not aware yet of the complaint and generally does not comment on litigation.
Gill’s complaint also claimed that the actions against him resulted in the U.S. Navy Reserve’s decision to no longer recommend him for retention in the Reserve, and they caused reputational damage to his private law practice.
“It’s astounding that something like this would happen,” said Zaid. “If you show up at the door of a lawyer with a warrant, what do you think he’s going to do? He’s going to say, ‘Hey, can you give me a few minutes to get my clothes, my bag and wallet.’ Instead, they point automatic weapons at him. Shackle him. Unbelievable.”
The Federal Tort Claims Act requires claimants to file an administrative claim within two years of the incident or injury. The agency then has six months to investigate the claim.
Zaid said there is “absolutely” a need to resolve the legal question of whether a military commission judge has the authority to order the appearance or detention of a civilian. “We’re not even getting into substantive debates about how effective the military commission is,” he said. “Instead, we’re focusing on ethical conflicts and imprisoning lawyers.”
Gill’s complaint is posted below: