2/19 Motions Session #6: Things Limburg, Part Two

Our prior motion challenged one charge relating to the attack on the Limburg---hazarding a vessel---and its status under international law.  Our next one, AE174, takes a somewhat different tack. It comprises a related bid to have all Limburg-related charges knocked out, for failure to state an offense.  The reason has to do with Limburg's true status, as either civilian shipping boat (off limits), or belligerent-aligned oil tanker (fair game).

One of Al-Nashiri’s attorneys, CDR Brian Mizer, wants Judge Pohl to dismiss Charge 4, Specification 2 as well as Charges 7-9.  In asking for that, the attorney has set his sights on a key legal claim by the United States---that in 2002, in Yemen, Al-Qaeda found itself in armed conflict, not merely with the United States but also with France. Limburg, you see, was then a French-flagged civilian tanker carrying foreign oil to a foreign country; and during the attack, one foreign national crew member was killed and others injured.  Here's Mizer's kicker: if France or those other foreign countries weren’t part of the American armed conflict against Al-Qaeda, then the whole affair has no business being heard before this commission.

But suppose France was a participant, Mizer goes on.  Well, if the law of armed conflict indeed governs the situation, then the Limburg---an oil tanker flagged to a belligerent---was a legitimate military target.  And if that’s true, then Al-Nashiri’s alleged actions also were not subject to prosecution before this commission. Nimitz, after all, sunk Japanese tankers in World War II.  (When asked, Mizer seemingly concedes that an assault of this nature by an unprivileged belligerent, in a non-international armed conflict, might well violate domestic law. But that’s another matter, for a domestic court.) The key thing, for Mizer, is that Limburg was a “tanker at war;” accordingly, the boat was open to attack.  The court wonders why, then, the question should be resolved on a motion for "failure to state an offense."  Doesn't that posture involve assuming alleged facts as true, rather than resolving disputed facts?  Carrying oil in a time of war, Mizer pushes past Judge Pohl, is quintessentially a military role.  “Oil is ammunition."  The defense attorney ticks off some more authorities, including the San Remo Manual and the U.S. Navy Commander’s guide.  Both of these suggest that a ship’s integration into an enemy’s warfighting effort would make the ship targetable.

After a quick recess, the government, in the person of Maj. Seamone, protests Mizer’s position.  Limburg was a commercial vessel, he argues.  Judge Pohl asks Seamone the same question he asked of Mizer: is this about assuming facts as alleged, on a motion to dismiss, or is there a factual dispute here?  The attorney gives mostly a non-answer, while noting that some factual disputes (about lawful belligerency, and so on) can be addressed by the panel, at trial.  There’s no need, now, to get into the subjective beliefs of an attacker or other details bearing on Al-Nashiri’s status or the Limburg’s targetability under law.

No reply argument from Mizer; AE174 joins the growing stack of pending motions on Judge Pohl’s desk.