In a split decision, a federal appeals court in Washington, D.C., cleared the way on Tuesday for a war crimes commission at Guantanamo Bay to try a Saudi national on terrorism charges, including the bombing of a U.S. Navy vessel, the U.S.S. Cole, in a harbor in Yemen, in 2000. The case of Abd Al-Rahim Hussein Muhammed Al-Nashiri has been on hold at Guantanamo, with no trial date set yet.
Government records have shown that Al-Nashiri was subjected to nearly four years of brutal torture at Central Intelligence Agency “black sites” overseas before being taken to Guantanamo. He has been described by doctors as in precarious mental and physical condition. His lawyers have contended that, facing the death penalty if he is convicted, he will suffer severe psychological harm if compelled to go to trial by a war crimes court.
His much-delayed military commission case is based on nine charges of terrorism and murder, and military prosecutors have accused him of being the alleged al Qaeda mastermind of the bombings of the U.S.S. Cole and the French supertanker the M/V Limburg, as well as the attempted — but failed — bombing of the U.S.S. The Sullivans. In the attacks that were actually carried out, 18 crew members of the vessels died and dozens were injured.
Although al-Nashiri’s defense lawyers have raised a wide variety of claims, based on the Constitution and on federal law, his main challenge is that a Guantanamo Bay war crimes commission only has authority to try cases involving “hostilities,” as defined by the law of war, and his alleged crimes did not qualify. The U.S. was not at war, and had not even started the “war on terrorism,” at the time he hired suicide bombers to carry out the attack on the U.S. naval vessel as it refueled in a Yemeni harbor, his lawyers claimed.
He has filed several legal challenges to his trial by commission, seeking to prevent that trial. A federal trial judge, however, ruled that the civilian courts should not interfere with the war crimes trial. That was the result that the U.S. Court of Appeals for the District of Columbia Circuit upheld on Tuesday.
Circuit Judge Thomas B. Griffith, joined by Senior Circuit Judge David B. Sentelle, ruled that al-Nashiri will have an opportunity — at his commission trial, at a later appeal in a military appeals court if he is convicted, and at a further appeal to the D.C. Circuit Court plus a chance to appeal to the Supreme Court — to raise all of the challenges that he was relying on to try to head off the actual trial.
Moreover, the majority concluded, it is important for the civilian courts not to disrupt the trial of crimes in military courts — either a traditional court-martial, or the new system of military commissions at Guantanamo.
The majority said it was debatable whether the U.S. was actually engaged in hostilities, under the law of war, at the time of al-Nashiri’s alleged crimes — some of which occurred before the terrorist attacks on the U.S. on September 11, 2001. But, even so, the majority said the trial at Guantanamo could proceed, since it found that al-Nashiri has no right under the Military Commissions Act of 2009 to avoid trial altogether by the military.
Circuit Judge David S. Tatel, dissented, arguing that the civilian courts should go ahead and decide al-Nashiri’s various legal challenges. At a minimum, Judge Tatel argued, the case should be sent back to the District Court judge to fully assess the harms that al-Nashiri’s claims will occur if he has to stand trial before a war crimes tribunal. The dissenting opinion chronicled some of the torture methods that al-Nashiri has contended he was forced to undergo at the hands of U.S. authorities.
The military commissions system at Guantanamo has been plagued by repeated procedural and substantive missteps, and has resulted in only a few actual convictions, most of which have been overturned on appeal. The main event still awaited at Guantanamo is the commission trial of five detainees accused of planning the 9/11 terrorist attacks.
Al-Nashiri’s lawyers have the option of challenging Tuesday’s appeals court decision before the full 11-member D.C. Circuit Court, or in an appeal to the Supreme Court.