The lead prosecutor, Mark A. Miller, a Justice Department lawyer assigned to the Cole case, said: “We are leery of the notion that a subpoena can be issued by any court, American court, to a foreign national who is in a foreign country in a court that’s sitting in a foreign land. So I think the subpoena actually, for our purposes and to get this done, is kind of a waste of time.”
The office of the overseer of military commissions, known as the convening authority, refused to grant Mr. Hela immunity from prosecution in exchange for his testimony.
Ms. Carmon said the inability to get testimony from the Yemeni prisoner “robs both the defense and the American people of a public determination of where responsibility for the bombing of the Cole truly lies.”
In court, Mr. Hela spoke bitterly about his 20 years in U.S. custody, saying it was “like a life sentence.”
His lawyer, Beth D. Jacob, has said that he wants to be reunited with his wife and to be able to see his sole surviving child, a daughter he last saw when she was a toddler. His two sons were killed in an accident while he was held at Guantánamo, and the daughter, who is now married and expecting his first grandchild, is in Yemen studying to be a lawyer with a specialty in human rights.
The testimony capped two weeks of pretrial hearings that focused on the torture of Mr. Nashiri during his time in C.I.A. custody after his capture in Dubai in 2002 and of another Saudi prisoner who has admitted to being part of a Qaeda cadre that plotted attacks on seaborne vessels.