Appeals Court Leaves al-Nashiri to Languish in Military Commissions System

Washington, D.C. – The U.S. Court of Appeals for the District of Columbia Circuit today refused to intercede in the case of alleged USS Cole bomber Abd al Rahim al-Nashiri, a decision Human Rights First said will delay justice to the victims’ families and prolong the case by leaving it in the flawed military commissions system. Human Rights First has long argued for the use of time-tested federal courts, which have clear mechanisms to deal with procedural issues, and have handled hundreds of terrorism cases without issue since 9/11.

“The court’s failure to take the al-Nashiri case out of the deeply flawed military commissions, which can only try war crimes, is absurd. Al-Nashiri’s alleged crimes occurred nearly a year before 9/11 and before the United States was at war with al Qaeda, which means this case should be tried in federal court,” said Human Rights First’s Rita Siemion. “Al-Nashiri’s military commission prosecution will now go forward, likely for years, eluding justice for victims’ families.”

Human Rights First notes that today’s decision avoids answering fundamental questions about the use of military commissions in place of federal courts and the scope of the amorphous armed conflict with al-Qaeda. Last year, 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 Al-Nashiri in a military commission. The retired military leaders’ brief before the Court of Appeals for the District of Columbia Circuit argued that the military commission does not have jurisdiction because the charges 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.

Al-Nashiri, a 51-year-old Saudi national, remains charged in a military commission with planning the 2000 bombing of the USS Cole, a U.S. navy ship, among other terrorism-related offenses. Arrested in 2002, he was held in CIA “black sites” and tortured for four years before being transferred to the detention facility at Guantanamo Bay, Cuba 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, mock executions, and “stress positions.”