Al-Nashiri Should Face Trial in Federal Court, Not Gitmo
By Morgan Aiken
On May 31, Human Rights First filed an amicus brief in the case of Abd Al-Rahim Hussain Mohammed al-Nashiri. Signed by 12 retired generals and admirals of the U.S. Army, Navy, Marines, and Air Force, the brief challenges the government’s attempt to use military commissions to prosecute crimes that did not happen during war or armed conflict.
Why does this matter? Because under both domestic and international law, individuals can only be prosecuted for war crimes in military commissions based on crimes that happened during a war. When a crime happens outside the context of war, federal courts are the appropriate authority to bring perpetrators to justice.
Al-Nashiri stands accused of masterminding the 2000 bombing of the USS Cole, and has also been charged with the attempted bombing of a French oil tanker off the coast of Yemen in October of 2002. At the time of both incidents, the United States was not in an armed conflict with Yemen.
Last year, the U.S. Court of Appeals for the District of Columbia held that it had to abstain from deciding whether the military commission has authority to try al-Nashiri until after the trial is over. Human Rights First coordinated an amicus brief in advance of that decision as well, laying out similar arguments in opposition to the military commission’s jurisdiction.
Waiting until after al-Nashiri’s trial is over to determine jurisdiction means many more years of delay. Al-Nashiri has been held at Gitmo for over ten years. He was only charged before the military commissions in 2011. As of this moment, there is still no set date for the start of trial. This means that it could be years before a decision is made on jurisdiction, adding to the already exorbitant cost of the Guantanamo military commissions.
Last week’s brief was submitted in support of a petition filed by al-Nashiri asking the Supreme Court to review the ruling by the U.S. Court of Appeals last year.
As the retired admirals and generals note in their brief, from a national security standpoint using military commissions to try cases that fall within the jurisdiction of the federal courts is unnecessary and counterproductive. Given the complicated history of the military commissions, and the frequent challenges to their legitimacy, the United States government should strive to ensure that they are used appropriately.