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February 16, 2016

The al-Nashiri Case and the Question of When War Begins

By Alice Debarre

Tomorrow the D.C. Circuit Court of Appeals will hear oral arguments in the case of Guantanamo detainee Abd al Rahim al-Nashiri. This case brings to the fore several important issues related to the so-called “war on terror,” such as the use of military commissions, torture, and the right to habeas corpus. Also central to these proceedings is the question of when an armed conflict begins, and hence when the laws of war—the special set of rules applicable only in wartime—kick in.

Al-Nashiri, a 51-year-old Saudi national, is charged in a military commission with planning the 2000 bombing of the USS Cole, a U.S. navy ship, among other terrorism-related offenses. He was arrested in 2002 and held in CIA “black sites” and tortured for four years before being transferred to Guantanamo in 2006. Al-Nashiri is one of several detainees the CIA admitted to waterboarding. According to the Senate report on CIA torture, he was also subjected to a number of other torture tactics, including threats of sexual violence against his mother, slaps on the back of the head, and "stress positions."

The D.C. Circuit will hear arguments over whether the Guantanamo military commission has jurisdiction to try al-Nashiri for conduct that occurred before 9/11. According to his defense counsel, al-Nashiri is not subject to the military commission’s jurisdiction because the alleged offenses did not occur during an armed conflict. Under the 2009 Military Commissions Act, only conduct that occurs “in the context of and associated with hostilities”—hostilities being defined as “any conflict subject to the laws of war”—may be tried in a military commission. In an amicus brief coordinated by Human Rights First, 14 retired military leaders of the United States Armed Forces urge 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.

Was the United States in an armed conflict with al Qaeda in Yemen at the time of the bombing of the USS Cole? This question has ramifications far beyond the case of al Nashiri. Under the laws of war, combatants and others directly participating in hostilities may be targeted and killed. Civilians may also be lawfully killed or injured as "collateral damage." Combatants may be detained, without charge or trial, until the end of hostilities. If a war crime is committed, the accused may be tried in a military commission instead of a civilian court. 

Al-Nashiri argues that his alleged crimes were committed in a time of peace. In response to the USS Cole bombing, President Clinton publicly stated that America was not at war and Congress passed no authorization for the use of military force. According to al-Nashiri, it is clear that the existence of an armed conflict with al Qaeda dates back to September 11, 2001. If the court were to find that the military commission does not have jurisdiction, al-Nashiri could still be prosecuted in our federal court system, which is perfectly capable of trying a terrorism suspect, with its additional due process protections.

The government contends that the United States has been in a singular and sustained armed conflict with al Qaeda going back to the 1998 embassy bombings in Tanzania and Kenya. Al-Nashiri’s alleged offenses would therefore qualify as war crimes, triable in a military commission. It argues that the several attacks carried out by al Qaeda against U.S. targets and the discrete self-defense responses by the United States prior to 9/11 demonstrate the existence of an armed conflict. In their amicus brief, the retired military leaders describe the government’s argument as an attempt to revise history, as the facts plainly demonstrate the United States was, at the time, in a period of peace.

Due to the many complicated procedural questions also involved, the court might not rule on whether the United States was in an armed conflict with al Qaeda prior to 9/11. In that case, it will be left to the Guantanamo military commission, a forum notorious for its delays and failures, to decide this issue.