State Department: Guantánamo lawyers can’t question Yemeni leader

Yemeni President Ali Abdullah Saleh is in the United States with full diplomatic immunity, Secretary of State Hillary Clinton’s legal advisor has written the Pentagon, and should not be compelled to provide sworn testimony for the Guantánamo war court.

State Department Legal Advisor Harold Hongju Koh wrote the letter Monday to the Pentagon’s chief war crimes prosecutor, Army Brig. Gen. Mark Martins, opposing a request for a subpoena by lawyers for an alleged al Qaida bomber facing a tribunal at the U.S. Navy base in southeast Cuba.

Saleh, 69, arrived in New York late last month and checked into the Ritz-Carlton Hotel. The U.S. granted him entry for medical treatment of burns he suffered in a June attack at his palace mosque in the uprising to oust him from power.

Lawyers for Guantánamo captive Abd al Rahim al Nashiri, 47, argue that Saleh could provide critical evidence in the capital case. Nashiri, who was waterboarded by the CIA, is accused of orchestrating al Qaida’s suicide bombing of the USS Cole off Aden, Yemen. Seventeen U.S. sailors died in the attack that crippled thewarship in October 2000.

U.S. investigators descended on Saleh’s nation after the attack collecting evidence for several U.S. terror prosecutions.

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But Nashiri defense lawyer Richard Kammen said there’s public evidence that Saleh “sought to limit the investigation of the Cole bombing,” that “he personally handled evidence” and “members of his government are alleged to be complicit in the Cole bombing.”

Koh did not address the value or content of the testimony that Saleh might provide in the three-paragraph single page letter obtained by The Miami Herald on Wednesday.

His letter also makes no mention of Saleh’s medical treatment.

Rather, Koh invoked “the particular importance attached by the United States to avoiding compulsion of an oral deposition of President Saleh in view of international norms and the implications of the litigation for the Nation’s foreign relations.” He did not describe those implications in the letter.

Koh asked Martins to convey his analysis to the chief of the Guantánamo judiciary, Army Col. James Pohl, Nashiri’s trial judge, that “President Saleh, as the sitting head of state of a foreign state, is immune while in office from the jurisdiction of the Military Commission to compel his oral deposition.”

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Defense lawyers disagree. In U.S. v. Nixon, Kammen said, the 1974 Watergate case found “a sitting president of the United States was not immune from questioning in a criminal case.”

Koh, a former Yale Law School dean and assistant secretary of state for human rights in the Clinton administration, is no stranger to Guantánamo controversies.

In 1994-95 he faced off against President George H. W. Bush’s Justice Department, arguing that it was a violation of international law to capture fleeing Haitian refugees on the high seas and incarcerate them indefinitely at Guantánamo Bay.

In 2006, he wrote a U.S. Supreme Court brief for former Secretary of State Madeleine Albright and other former U.S. diplomats that opposed the first format for Guantánamo’s military commissions, which were unilaterally created by President George W. Bush without consulting Congress. Those commissions, he argued, “damage our reputation abroad and undermine our ability to promote the global rule of law as an antidote to terrorism.”

A spokesman for the Yemeni Embassy had no comment on the developments.

Saleh pledged in a statement Tuesday to return to his homeland before his successor is chosen in elections, now scheduled for Feb. 21.

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