But is it a War Crime?

Developments in the trial of Al Nashiri

(This is my second article on Al Nashiri. The first covered the charges against him, the publicly-available evidence in his case, and his claims of innocence. This article covers a key question in his trial, whether his alleged crimes took place as part of an armed conflict.)

Al Nashiri is charged with one of the most significant terrorist attacks in American history, the bombing of the USS Cole.

The USS Cole

Credit: FBI

A total of 17 American Navy sailors died in the attack.

But there is something unusual about his trial.

It will not take place in a traditional courtroom.

Instead, it will be held in a war crimes trial, known as a military commission, at the US military prison at Guantanamo.

Military Commission Seal

Credit: www.mc.mil

Much of the recent pre-trail activity in his case asks whether the charges against him are, in fact, war crimes.

If not, the charges cannot be tried in a military commission.

The Defense

Al Nashiri’s defense team argues the bombing of the USS Cole did not take place during a war, which means the attack could not have been a war crime.

President Clinton responded to the bombing in a radio address to the nation. He described it as a peacetime terrorist attack.

"This tragic loss should remind us all that even when America is not at war, the men and women of our military risk their lives every day, in places where comforts are few and dangers are many," Clinton said. 

Congress did not recognize the attack as taking place during a war, either.

Nashiri’s lawyers say the first time Congress approved the use of the president’s war powers against Al Qaeda was in the Authorization for the Use of Military Force (AUMF), following the 9/11 attacks. The president signed the AUMF on September 18, 2001.

The attack on the USS Cole took place on October 12, 2000.

Nashiri’s lawyers say President Bush did not extend the AUMF to Yemen at any time prior to Al Nashiri’s capture. Al Nashiri was arrested in either October or November 2002.

His defense also observes Congress did not recognize the existence of an armed conflict in Yemen until 2009, when it expressed concern about a rebel insurgency in Yemen that began in 2004.

The Prosecution

The prosecution, on the other hand, argues the US and Al Qaeda were engaged in an armed conflict at the time of the Cole bombing. The prosecution presents the following facts to support their case.

In 1996 Osama Bin Laden declared war against the United States.

In August 1998 Al Qaeda bombed the US embassies in Kenya and Tanzania, killing over 200 people. The US responded by bombing Al Qaeda training camps in Afghanistan and a suspected chemical weapons facility in Sudan.

In January 2000 Al Qaeda launched an unsuccessful attack against an American navy ship, USS The Sullivans, off the coast of Yemen.

Judge Pohl’s Decision

These conflicting arguments over when the US armed conflict with Al Qaeda began were first addressed by the judge overseeing Nashiri’s trial.

Judge James Pohl

Credit: Lawfareblog.com

James Pohl was the original judge in Nashiri’s military commission. In January 2013 he ruled against a defense motion to dismiss the charges against Nashiri.

Judge Pohl said Al Qaeda had decided to fight a war against the United States by the time of the Cole bombing.

“In determining whether hostilities exist or do not exist, the enemy gets a vote,” Pohl wrote.

He also said Congress and President Obama agreed the armed conflict between the US and Al Qaeda began before 9/11 because the 2009 Military Commissions Act authorizes those courts to consider cases based on crimes committed before September 11, 2001.

Judge Pohl explained President Obama could have required the secretary of defense to order Nashiri’s charges dismissed if he disagreed with the contention Nashiri’s actions occurred in the context of hostilities.

Judge Pohl wrote Congress and the President deserve “wide deference” in their determination the US was engaged in an armed conflict prior to 9/11.

The Appeals Courts

Nashiri tried to get his charges dismissed by the appeals courts as well.

Nashiri’s lawyers sued Bruce MacDonald, the convening authority who referred the charges against Nashiri to the military commission, based on the argument he had broken the law by referring charges against Nashiri for alleged crimes that did not take place during an armed conflict.

In December 2013 the Court of Appeals for the 9^th Circuit ruled Nashiri did not have standing to bring the case due to a provision of the 2006 Military Commissions Act.

Nashiri then took his argument to another appeals court using a different legal tactic.

In April 2014 Al Nashiri submitted a habeas corpus petition to the DC Circuit Court of Appeals to have the charges against him suspended. He argued his conduct did not take place during an armed conflict, which meant he could not be tried before a military commission.

In December the DC Circuit decided it would not rule on the merits of Nashiri’s habeas case until his military commission trial is completed.

The MV Limburg

In addition to being charged with the bombing of the USS Cole, Nashiri is also charged with carrying out the attack on the MV Limburg. 

The MV Limburg

Credit: AFP

The MV Limburg was bombed in October 2002, over a year after the 9/11 attacks. The MV Limburg was a French ship used by Petronas, a Malaysian state-owned oil company. The attack killed one Bulgarian crew member, Atanos Atonasov.

The prosecution says one of the reasons Al Qaeda carried out the bombing was to discourage the United States from traveling near the Arabian Peninsula. The prosecution also argues the terrorist group wanted to disrupt the US economy by increasing the price of oil.

France was fighting alongside the US against Al Qaeda in Afghanistan as a member of NATO at the time of the attack.

In July Judge Pohl stepped down from Nashiri’s case in order to devote more time to overseeing the 9/11 trial at Guantanamo. He was previously in charge of both cases.

Air Force Colonel Vance Spath was appointed to replace Judge Pohl.

Judge Vance Spath 

Credit: Miami Herald

In August Judge Spath dismissed the charges against Nashiri regarding the attack on the MV Limburg. He said the prosecution failed to provide evidence to support its argument the attack took place as part of the armed conflict between the US and Al Qaeda.

In September the prosecution appealed the ruling to the Court of Military Commissions Review (CMCR). The prosecution argues the question of jurisdiction should not be decided until it presents evidence at Nashiri’s trial. Alternatively, if the prosecution is required to make its argument before trial, it would like another opportunity to do so.

Oral argument was scheduled to take place before the CMCR in November.

However, the hearing was put on hold.

The defense filed a Mandamus petition with the DC Circuit Court to disqualify two of the three judges on the CMCR. Oral arguments before the CMCR on the Limburg charges will not occur until the DC Circuit makes a ruling on this challenge.

Arguments before the DC Circuit will take place on February 10.

Implications

Whether Nashiri’s alleged crimes occurred as part of the US armed conflict with Al Qaeda will be debated before, during, and after Al Nashiri’s military commission trial. Whether or not he is convicted will depend on how the courts answer that very question.

A drawing of Al Nashiri 
by Guantanamo court illustrator Janet Hamlin

If the courts decide his alleged crimes did not take place during hostilities, he could be charged for the same attacks in a traditional federal court. Those courts can hear all cases, not just those concerning violations of the law of war.

Alternatively, the US government could continue to imprison Al Nashiri at Guantanamo as an enemy fighter, without having to charge him with a crime at all.