Spelling out the grim details of years of extreme torture, a high-profile detainee at Guantanamo Bay is asking the Supreme Court to block his war crimes trial until he can contest its legality in a civilian court – a challenge based heavily on the impact on his physical and mental health of his treatment in custody.
The appeal by Abd Al-Rahim Al-Nashiri, a Saudi Arabian national, could lead to one of the court’s most significant rulings in a modern terrorism case, if the Justices agree to rule on it.
His case is a test of when America’s “war on terrorism” began, because that point is crucial to whether a military commission has any authority to put him on trial for alleged war crimes that occurred in 2000 and 2002 – years before Congress set up a system of war crimes tribunals at Guantanamo in 2006.
The case is also framed as a challenge to the Executive Branch’s authority to keep criminal cases away from the civilian courts and transfer those prosecutions to military tribunals that function very differently. In effect, that aspect of the Al-Nashiri case is a not-so-subtle invitation to the Supreme Court to come to the aid of the civilian judiciary, to protect its primary role in America when those courts are open and fully functioning.
His lawyers are asking the Justices to revitalize the ancient writ of habeas corpus – the right of a person to challenge government power to justify detention – as the Supreme Court attempted to do in the last major ruling on Guantanamo detainees’ rights nine years ago.
That 2008 ruling in Boumediene v. Bush has led directly to few releases of detainees through civilian court action, and Al-Nashiri’s attempt to pursue a habeas challenge has been blocked by federal civilian courts in order not to interfere with his military commission trial. Those lower court rulings are the immediate point of his Supreme Court appeal.
As a result of government-approved transfers out of Guantanamo, the population there has dwindled, so that now only 41 foreign nationals remain. President Obama was not able to achieve his goal of closing Guantanamo, but no one has been sent there since March 2008. Now, President Trump has vowed to resume sending any terrorist captives to that prison, rather than having them prosecuted in civilian courts. If the Justices were to take on Al-Nashiri’s case and rule for him, the Trump policy could face resistance in the civilian courts.
Al-Nashiri has been held by U.S. civilian or military authorities since he was captured in Dubai in 2002 and turned over to U.S. authorities. He spent the next four years at so-called “black sites” operated overseas by the Central Intelligence Agency. The federal government has conceded that he was subjected there to severe torture techniques, including “waterboarding.”
His appeal to the Supreme Court has page after page in a gruesome recital of the techniques used against him, but some of that recital has been blacked out by intelligence agencies that screened the document before his lawyers could file it and make public a version of it.
The document summarized the mistreatment as “the most extreme forms of torture and abuse in which our country has ever engaged.” Undergoing an unauthorized trial with a death penalty hovering over it, the filing argued, would subject Al-Nashiri to injuries of health and mental stability that would flow directly from the government’s own misconduct during years of “physical, psychological and sexual torture.”
The mistreatment did not stop, his lawyers have said, after he was transferred to Guantanamo Bay in 2006 (he has remained there since). In 2008, the Pentagon charged him with war crimes for an alleged role in plotting the bombing of a Navy warship, the U.S.S. Cole, in Yemen in 2000 and a similar alleged plot against a French oil tanker in Yemen in 2002. If convicted by a military commission, he could be sentenced to death.
He also has been charged in civilian federal court in New York City, but there is no prospect that a trial in that case would occur before his military trial.
The military court system that would try him, set up under a 2006 federal law, has been plagued by legal and procedural problems for years, and has resulted in only eight convictions; half of those have been ovcrturned on appeal, wholly or in part. Al-Nashiri’s lawyers have estimated that, if his military trial goes forward, all phases of the case would not be completed until well beyond 2024.
The law creating the military commissions specifies that those tribunals have authority to try charges “only if the offense is committed in the context of and associated with hostilities.” It says that “hostilities” are conflicts “subject to the laws of war.”
Al-Nashiri’s lawyers have been attempting to pursue, in civilian court, their claim that the charges against him involved alleged plots that occurred before America was engaged in anything like the war-like activity covered by the military commission law. The challenges have been based on a plea for a writ of habeas corpus and on a plea for a writ of mandamus – two separate modes for testing the legality of his military trial.
When he lost his challenge last August in the U.S. Court of Appeals for the District of Columbia Circuit, a divided panel of that court ruled that his habeas challenge had to wait until after he was tried, and if convicted and then used any appeal rights he would have under the 2006 law. It blocked his mandamus plea by finding that the question of when “hostilities” began for purposes of military commission trials was an “open question,” and no such question can be raised in a mandamus plea.
In the petition for review, his lawyers are challenging both rulings against him. More broadly, the petition argued that the 2006 law “has created a novel and permanent system of rump criminal courts that operate free from the most basic requirements of [the Constitution’s] Article III.”
Under the Circuit Court decision in his case, the filing said, civilian leaders in the Executive Branch ”now have the unilateral authority to remove capital prosecutions from the federal court to this system on a ‘case-by-case’ basis.”
It would take the votes of four Justices to grant review of Al-Nashiri’s appeal. A vote on whether to hear the case could come before the Justices recess for the summer in late June. If granted review, the case would not be heard until the court’s new term, which opens in October.
It is unclear whether there will be a ninth Justice on the court when this case comes up for initial consideration, but it is quite likely that there will be a full bench for the court’s next term.