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June 13, 2013

Is "Terrorism" a War Crime Triable by Military Commission? Who Knows?

Thirteen years after the USS Cole was bombed by an approaching vessel in the Yemen port of Aden, a military commission in Guantanamo Bay is trying to figure out if the act constituted "terrorism" and if "terrorism" is a crime that can be charged in a military commission.

We still don't know.

The pre-trial hearings of alleged al Qaeda bomber Abd al-Rahim al-Nashiri, who's been in U.S. custody since 2002 and spent four years under "enhanced interrogation" in secret CIA prisons, are dragging on slowly at the Guantanamo war court. As the lawyers argue, the judge is just now trying to figure out what are the proper charges and which rules govern bringing the case to trial.

On Thursday morning, Air Force Captain Daphne Jackson, representing al-Nashiri, argued that a recent ruling of the federal court of appeals of the D.C. Circuit suggests that "terrorism" itself is not a crime that can be charged separately from the acts that were committed.

Al-Nashiri is charged with Conspiracy, Terrorism, Perfidy, Murder in Violation of the Law of War, and Attempted Murder in Violation of the Law of War, among other things. In addition to the Cole bombing, which killed 17 U.S. sailors, he's charged with attempting to blow up the USS The Sullivans (another Navy ship) and with attacking a French supertanker MV Limburg, also in Yemen.

Although murder, conspiracy and terrorism are all clearly crimes in U.S. federal courts, and the United States had not yet declared war against al Qaeda in 2000 when the first two crimes occurred, the U.S. government has chosen to bring this case in a military commission at Guantanamo Bay. That war crimes court was created in 2001, after the September 11 terrorist attacks. Col. James Pohl, the presiding judge, has ruled the case can move forward in this military commission, but it remains unclear whether on appeal, the courts will ultimately find that this case was properly brought at Guantanamo Bay. If it wasn't, a conviction could be overturned.

The D.C. Circuit Court of Appeals in recent months has ruled that "conspiracy" and "material support for terrorism" are not war crimes in international law and weren't made war crimes by U.S. law until 2006, so they can't be charged in cases alleging acts committed before then. (That issue will continue to be litigated.)

But is "material support for terrorism" the same thing as "terrorism"? That's where it gets fuzzy.

Defense attorney Jackson on Thursday argued that the D.C. Circuit's ruling suggests that only specific acts of terrorism may be charged as war crimes; "terrorism" as a whole, she argued, cannot be a separate charge.

Brigadier General Mark Martins, the military commissions' chief prosecutor, responded that "systematic terrorism" is indeed an international war crime, citing references to "a system of terrorism" condemned in the 1919 Conference of Paris after World War I, and conspiracy claims in the post-World War II trial of Nazi judges, U.S. v. Altstoetter. The first wasn't a war crime charge, though, and in Altstoetter, the conspiracy charge in that case was actually dropped: the court at Nuremberg found it didn't have jurisdiction over it.

Other matters argued Thursday include whether the military commission rules that allow prosecutors to veto the defense lawyers' choice of witnesses violates the defendant's Constitutional right to due process, whether the military commission should be run more like a military court martial or like a U.S. federal court when it comes to the right to present evidence, and why the Guantanamo commander didn't know that the attorney-client meeting rooms were bugged with hidden surveillance equipment.

As usual, Judge Pohl didn't rule on any of these matters in court. So for now, at least, the case will continue without our knowing what exactly the charges are, whether the court has jurisdiction over them, which procedural rules apply, and whether supposedly confidential attorney-client meetings were monitored by the government.

This is a cross post from The Huffington Post