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December 11, 2015

Retired Military Leaders Call for Trial by Federal Court in Al-Nashiri Case

On Monday, December 7, 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 government should not be allowed to violate the rule of law by prosecuting Guantanamo detainee Abd Al-Rahim Hussain Mohammed Al-Nashiri in a military commission. Al-Nashiri is the alleged mastermind of the 2000 USS Cole bombing and other maritime terrorist attacks. As discussed in the 2014 Senate Select Committee on Intelligence’s summary of the torture report, as well as a decision from the European Court of Human Rights, Al-Nashiri was waterboarded, subjected to mock executions, and forced to undergo other cruel, inhuman, and degrading treatment at several CIA black sites.

The retired military leaders’ brief before the Court of Appeals for the District of Columbia Circuit argues that the military commission does not have jurisdiction to hear Al-Nashiri’s case. The charges alleged against him are for crimes committed outside the context of any conflict subject to the laws of war, and therefore must be tried before a federal court.

As Rear Admiral John D. Hutson, former Judge Advocate General of the Navy and one of the signatories of the amicus brief, explains: “Even more than the strength of our tremendous military or our economy, our greatest strength is our unflagging adherence to the rule of law. When dealing with accused terrorists, history has shown that trying them in federal courts is the best method for finding justice while keeping our nation secure."

Under international law, military commissions may only be used out of strict necessity during wartime—for instance, when ordinary courts are compromised or unavailable. In contrast, at all other times, individuals that commit criminal or terrorist acts must be tried in civilian courts. In fact, criminals and terrorists are regularly and effectively held accountable in federal courts.

Yet in this case, the government is trying to prosecute Al-Nashiri in a military commission for conduct that occurred in Yemen in 2000, before 9/11 and the start of any armed conflict between the United States and Al Qaeda. As the brief explains, numerous presidential and congressional declarations show that the United States was not at war in Yemen in the year 2000 when Al-Nashiri’s alleged crime was committed. A person cannot violate the laws of war during a time of peace.

Beyond violating international law, using a military commission to try Al-Nashiri violates the very U.S. statute that created the commissions. As national security law expert Steve Vladeck notes, “the Military Commissions Act itself limits the commissions’ jurisdiction to offenses ‘committed in the context of and associated with hostilities,’ which the Military Commissions Act defines as ‘any conflict subject to the laws of war.’” Under this unambiguous statutory requirement, the government may not use a military commission to prosecute conduct that did not occur during a conflict subject to the laws of war.

Yet that is exactly what the government is trying to do with Al-Nashiri. Trying defendants by military commissions for conduct that did not occur during a war sets a dangerous precedent that other countries may follow, thereby depriving U.S. service members of important substantive and procedural protections in the future if they were to be tried by a military commission in another country.

Retired military leaders have weighed in on Al-Nashiri’s case before. In May 2014, a group of retired senior U.S. military officers offered similar observations about needing to follow a rule-based definition of when hostilities begin, consistent with international law.

In the current brief, as in past briefs, the retired military leaders writing as amicus curiae have an interest in ensuring that counterterrorism policies conform to the rule of law, maintain the integrity of the U.S. judicial system, and protect the safety of American soldiers and citizens abroad. They also have an interest in ensuring that military justice is held in high regard, that military commissions and the laws of war are appropriately limited to situations of armed conflict, and that the scope of armed conflict and the laws of war are not expanded in a way that would conflict with international law.

You can read the full brief here.