On Thursday, the presiding judge in the military tribunal of Guantánamo Bay detainee Abd al-Rahim al-Nashiri (photo) denied the request made by al-Nashiri’s counsel to issue a subpoena to Yemeni President Ali Abdullah Saleh. The defendant argues that Saleh is a material witness in the case against him and should be compelled to testify.
Army Colonel James Pohl is the judge in the case, and in his order denying al-Nashiri’s motion he declined to offer the reasons behind his decision, stating merely that he would “explain his decision later.”
Both the motion to subpoena Saleh and the military judge's refusal to issue the same are under seal at the Pentagon’s war court.
When questioned by reporters during a press conference as to whether Saleh would be afforded diplomatic immunity while in the United States for medical treatment, State Department officials responded that “Ali Abdullah Saleh is still the President of Yemen and will be accorded those privileges and immunities accorded to any head of state until a new Yemeni president is sworn in following elections on February 21.”
Diplomatic immunity is a policy affording foreign diplomats immunity from prosecution. These agreements are made between governments and guarantee safe passage of government representatives, as well as freedom from lawsuits. The present iteration of the internationally recognized guidelines for diplomatic immunity was agreed as international law in the Vienna Convention on Diplomatic Relations (1961).
The lawyer for al-Nashiri, Lieutenant Commander Stephen Reyes, argued that Saleh should not benefit from the protection afforded by diplomatic immunity because he was not being sought as a suspect, rather merely for the purpose of providing crucial testimony in the trial of another person.
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