All of the former Presidents, as well as Sec. of Defense, Sec. of State, and so on, are still privy to knowledge that may remain classified.
Classification labels are placed on the information, not the job title. Some things that were classified (Need to know, confidential, secret, for your eyes only, whatever…) in the Bush years undoubtedly remain classified today.
Even after discharged form their previous positions of authority, they are still bound to keep that info secret.
They may be allowed to divulge it by whoever (in government service) now has the authority to declassify the particular info, and release the former office holder from the secrecy restrictions.
I assume the subpoenaed individual will have to actually show up and assert in court that the info is classified, if it is, but it still is a restriction on being able to give testimony.
Assuming there was some valid reason to subpoena Bush (and I can’t think of one either), I think you COULD do it…but that Bush’s lawyers could probably get a lot of limits and restrictions put on what could or couldn’t be asked because of his former position as President. Same would most likely apply to all former Presidents.
Since I assume the OP doesn’t know why Bush would be subpoenaed for this particular case either, maybe one of the boards lawyer types could speak to the hypothetical situation?
Off the top of my head, I think any arguably relevant information he might have would probably be hearsay, and therefore inadmissible. Bush didn’t interrogate anybody, he didn’t witness any interrogations as far as I know, he didn’t investigate anything, he didn’t collect evidence, conduct any searches, or witness the crimes at issue. Anything he knows, he knows because someone else told him.
I can think of a few tacks the defense might take that would involve subpoenaing Bush, but I don’t know the situation well enough, nor have enough skill in lawyering, to know whether it’d be a good idea. They could, for instance, argue that Mohamed’s capture was politically motivated, that Bush or his associates ordered him arrested without sufficient evidence to believe there was good reason to do so, which would call Mohamed’s actual guilt into question. If they were to take this tack, then it would make logical sense to subpoena Bush to ask him on the stand whether that were the case.
Could Bush (or his lawyers) use his former position as President to get restrictions placed on what he could be asked…or perhaps get some of his answers given in such a way that while the court could hear them, they would be kept out of the public record?
I think Bush would probably win a motion to quash a subpoena and not testify at all.
For that matter, I consider it highly unlikely that the defense would even attempt it. That’s picking a fight you probably aren’t going to win, and even if you win it, probably won’t do you any good. If I were defending, there’s a lot of other evidence/witnesses I’d much rather try to get with the time/resources it would take to go for Bush.
This is correct. You prepare papers saying what you expect the person to testify to and why you expect that. If they had a good reason, the judge would grant it. Even a sitting president has no immunity from testifying if relevant. But it’s got to be relevant.
And not cumulative. For example, they could arguably establish through Bush’s testimony that the United States requested Pakistan’s assistance in capturing KSM. But that fact can be brought out by dozens of other people, and it’s not necessary to subpoena Bush to establish the fact.
Finally, the prosecution could stipulate to facts in lieu of having Bush testify. “The government will stipulate that, if called, Mr. Bush would testify as follows…”
That’s a question of law, to be decided by the judge. It’s mixed with a question of fact – “Was KSM warned of his Miranda rights at any time, and if so, when?” But obviously Bush, or any administration official, would be able to answer that by direct knowledge. So whoever took him into custody would have to answer the question of whether or not he got his rights read to him. But the judge decides if there’s a legal requirement for those rights to be read. Bush couldn’t contribute a thing to that decision.
No, it wouldn’t. Not endorsing the idea that Miranda is in any way applicable, but the remedy for a Miranda violation is exclusion of the evidence obtained as a result of the defendant’s admissions. If all the evidence to be used was obtained before KSM was captured, then Miranda is of no help to him.