Amicus Brief: Supreme Court—Abd al-Rahim al-Nashiri v. Donald J, Trump, et al.
The executive branch is attempting to use a military commission, rather than the readily available federal courts, to try Petitioner for involvement in the bombing of the USS Cole in 2000 and attempted bombing in 2002 of a French oil tanker off the coast of Yemen.
For conduct related to these bombings to be triable by military commission, it must have occurred in the context of an armed conflict governed by the laws of war. An “international armed conflict” is triggered by any use of armed force between two or more nation states. A “non-international armed conflict” between non-state armed groups, or between such groups and a state, must meet more stringent requirements. As war crimes tribunals have held in case after case, fighting involving such groups triggers the laws of war only when the groups are sufficiently organized to function as parties to an armed conflict and the armed clashes between them are prolonged and intense. At the time of bombing and attempted bombing at issue here, the United States was not in an armed conflict in Yemen, raising serious questions about the legality of the military commission convened to prosecutePetitioner for law of war violations. Allowing a military commission of such questionable legality to proceed without first resolving this critical question will cause irreversible harm by putting U.S. servicemembers at greater risk and undermining the legitimacy and effectiveness of U.S. counterterrorism efforts.