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February 18, 2016

Al-Nashiri’s D.C. Circuit Court Hearing

By Alice Debarre

On Wednesday a three-judge panel of the D.C. Circuit Court heard oral arguments in the case of Abd al Rahim al-Nashiri, the Guantanamo detainee charged in a military commission with planning the 2000 bombing of the USS Cole.

The central question of this case is whether the United States was in an armed conflict with al Qaeda at the time of the alleged offense. If the period prior to 9/11 is considered a time of peace, the military commission cannot try al-Nashiri because its jurisdiction is confined to offenses that occur “in the context of and associated with hostilities”—hostilities defined as “any conflict subject to the laws of war.”

In an amicus brief coordinated by Human Rights First, 14 retired military leaders of the United States Armed Forces urged the court not to allow military commissions to prosecute crimes that occur outside of armed conflict, as this violates the rule of law and undermines the military justice system. The government argues that the United States has been in an armed conflict with al Qaeda since the 1998 embassy bombings. This is an attempt to revise history. The facts plainly demonstrate the United States was, at the time, in a period of peace—facts laid out clearly in the amicus brief.

The judges focused many of their questions on whether the court should abstain and let the case proceed in the military commission before coming back to the D.C. Circuit. One judge pointed out that dozens of terrorist cases are currently being tried in federal courts. The federal court system has proven itself more than capable of trying terrorism suspects.

The defense counsel underlined the lack of any kind of “speedy trial” in the military commission. The judges appeared concerned that the military commission proceedings in this case have been stayed since March of 2015. Al-Nashiri’s defense counsel posited that if the D.C. Circuit decides to let the case proceed in the military commissions, the earliest it would come back to the federal court on appeal is 2024. This is yet another example of the many delays that plague the military commission system.

The judges also asked the government why military commissions would be better suited than federal courts to determine when hostilities began. According to the government’s counsel, Congress intended for military commissions to review such cases in the first instance. The question of when hostilities begin turns on the military nature of acts by the government and the defendant, so the military’s perspective is not irrelevant. The judges did not seem convinced, however, that this particular question required military expertise.

Al-Nashiri still has many high procedural hurdles to overcome before the court decides whether to take on the case and order the government to drop the military commission charges. At the end of the public portion of the hearing, all observers not on an approved list were required to leave the courtroom. The judges went on to hear arguments on whether going through a capital trial in the military commission would cause al-Nashiri irreparable harm, which involves classified information. Al-Nashiri was one of the detainees that the CIA tortured using tactics such as waterboarding, threats of sexual violence against his mother, operating a drill near his body, and "stress positions."