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September 09, 2016

D.C. Circuit Kicks USS Cole Bombing Case Back to Military Commissions

By Kevin Meister

Last week a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied Gitmo detainee Abd al-Rahim al-Nashiri’s petition to halt his trial by military commission. It failed to resolve the issue of whether or not the military commission, which can only try war crimes, has jurisdiction to prosecute al-Nashiri. He is accused of heading al Qaeda’s bombing of the USS Cole, which took place prior to 9/11 and therefore before the war with al Qaeda began.

The government contends the United States has been in a singular and sustained armed conflict with al Qaeda since the Kenya and Tanzania bombings of 1998, but public statements from the political branches at the time contradict that claim.

In an amicus brief coordinated by Human Rights First and filed by Morrison & Foerster LLP, 14 retired generals and admirals of the United States Armed Forces argued that the charges alleged against al-Nashiri were not committed in an armed conflict, and therefore may not be tried as war crimes in a military commission. These crimes could—and should—instead be tried in federal court, which has a proven track record handling such cases.

The D.C. Circuit avoided resolving this issue by applying the abstention doctrine from U.S. Supreme Court decision Councilman, which dictates that federal courts should generally refrain from enjoining ongoing courts-martial. The D.C. Circuit contends this also applies to a military commission setting.  

Declining to decide the important issue of whether al-Nashiri can even be tried by a military commission for the Cole bombing, the D.C. Circuit sent the case back to the military commission to be the judge of its own jurisdictional limits. As law professor Steve Vladeck noted, the D.C. Circuit’s failure to rule on the merits leads to a “lingering cloud of jurisdictional uncertainty.”

This uncertainty will hang over the military commission system and al-Nashiri’s trial for years to come as the case drags on, delaying justice for the victims and their families.

Judge David Tatel’s dissent also notes that continuing to prosecute al-Nashiri in a military commission that may not even have jurisdiction is particularly unjust considering that the CIA tortured him extensively before transferring him to Gitmo in 2006. According to the Senate report on CIA torture, al-Nashiri was waterboardedthreatened with sexual violence against his mother, subjected to mock executions, and placed in "stress positions."

While hearings resumed this week at Guantanamo after an 18-month recess on this case, Carol Rosenberg from the Miami Herald notes that al-Nashiri’s defense attorney Richard Kammen has decided to appeal the decision to the Supreme Court. If the Supreme Court accepts the petition to review the case, this would be the first opportunity for the Supreme Court to rule upon the legal consequences of the Bush Administration’s torture program and the validity of the military commission system established by the 2009 Military Commissions Act.

Should the Supreme Court determine that the military commission does not have jurisdiction over al-Nashiri’s case, his trial would have to be moved to a federal court, although this is currently impossible under the Guantanamo transfer restrictions imposed by Congress.

Human Rights First continues to advocate for the use of federal courts to try terrorism cases, which have a long track record of effectively prosecuting terrorist suspects, with additional due process guarantees.