The Nashiri Merits: Do Military Commissions Have Jurisdiction Over Pre-9/11 Crimes?

Last Wednesday, following more of the oft-renewed Administration calls to close Guantánamo, 10 Yemeni detainees were transferred to Oman—the biggest single transfer under the Obama administration. Meanwhile, the litigation surrounding Abd al-Rahim al-Nashiri’s yet-to-be-commenced military commission trial pressed on. Last week, the government argued that abstention should prevent a decision on the merits of the effort to stop the trial before it happens. On Thursday, Nashiri’s brief was released.

The core question is whether military commission jurisdiction under the Military Commissions Act (MCA) extends to Nashiri’s pre-9/11 alleged crimes.

Before looking at the specific arguments Nashiri and amici advance, it is worthwhile to delineate what is at stake. What is not at stake is military detention or the future of Guantánamo—as least not directly or primarily. There are two distinct categories of Guantánamo legal puzzles: (1) military detention (the military’s authority to hold suspected terrorists prisoner), and (2) military commissions (the military’s power to try and convict). Only 7 of the 91 detainees remaining at the facility currently face military commission trials—the most high profile of whom are the 9/11 defendants (including KSM) and Nashiri (who is charged with the bombing of the USS Cole). Many of the remaining detainees can’t be prosecuted at all—by either civilian or military courts—in part because, as Marty Lederman notes, “the government was so focused on interrogation-based military detention in the days after 9/11 that it did not make sufficient efforts to collect and preserve admissible evidence that might support a conviction.”

For the detainees who cannot be tried, the issues are whether, and where, to transfer them? These are the biggest obstacles to closing Guantánamo, not least because these are the principal questions for the vast majority of detainees. But for the smaller group of detainees who can and will be tried, the questions are how and where? In Article III civilian courts in the U.S. or in military commissions at the Guantánamo naval base? Recall that there has been an indictment in the Southern District of New York pending against Nashiri since 2003. The question of how and where he is tried implicates Nashiri’s detention, but the petition does not challenge his detention at Guantánamo directly. This explains why the government’s brief—somewhat half-heartedly—argues that his petition does not sound in habeas. Again, that is not an argument that the lower court addressed, and it is very unlikely that it will figure into the D.C. Circuit’s analysis.

The Merits Question: What Kind of Question Are We Asking?

The merits of Nashiri’s petition is that the military commission lacks subject-matter jurisdiction to try his alleged offenses because those offenses were not committed “in the context of and associated with hostilities” since the laws of war did not apply to Yemen in 2000 (the situs and time of the alleged offenses). The core question here is a matter of statutory and constitutional interpretation: when the MCA says that military commissions have the power to try crimes “in the context of and associated with hostilities,” what exactly does that mean? Who gets to decide what is in the context of and associated with hostilities? And critically, what kind of question is it? The government characterizes it as a factual question—one that (a) the military commission should answer in the first instance (which is why it argues for Councilman abstention), and (b) that can and should be made now in retrospect about the state of affairs in 2000. Nashiri characterizes the question as political—an assessment of what the political branches believed to be true at the time. Nashiri’s question requires examining contemporaneous statements and actions; the government’s question relies on all relevant information, whether or not it was known at the time. Thus, the characterization impacts both abstention and the merits themselves. If the executive can now in retrospect make the factual determination that hostilities existed in 2000, courts will almost certainly defer to that judgment.

Here is my summary of the government’s merits argument from last week:

The government contends that the hostilities requirement is a factual inquiry that depends on whether the conflict was “sufficiently intense and organized,” rather than merely characterized by “sporadic and isolated” instances of armed violence. Drawing largely on the 9/11 Commission Report, the brief argues that there was a singular and sustained “armed conflict with the al Qaeda terrorist organization,” “[g]oing back to at least 1998,” and possibly as far as 1996, which included attacks spanning from Kenya and Tanzania to Afghanistan. Gov’t Br. at 5. It also argues that “the geographic scope of military commission jurisdiction is not limited to conduct occurring in a theater of active military operations,” citing Congress’s clear intent that the MCA “apply to the 9/11 attacks, which did not occur in a theater of active military operations.” Gov’t Br. at 18. Nashiri’s offenses, according to the government, were “one arm of an ongoing offensive that included the 9/11 attacks,” and as such, clearly satisfy the statute’s nexus-to-hostilities requirement.

Notice that the government is not arguing that politically (i.e., according to the political branches at the time) there existed an armed conflict with al Qaeda in 2000, but rather that such conflict existed factually, whether the political branches acknowledged it or not. Nashiri’s brief frames the question differently: “The existence of hostilities at a particular time and place is a question of political status.” Pet. Br. at 36 (emphasis added). This subtle but legally significant distinction drives the merits arguments from both sides. It dictates the kind of evidence that should be used in resolving the question, who should be tasked with deciding it, and when it is (or was) effectively decided.

Nashiri argues that the political status of the existence of hostilities cannot be decided ex post as a factual inquiry, but rather is “conclusively established by the public acts of the political branches” both at the time and in the several years after. Pet. Br. at 28. To that end, the brief relies on both the public statements of President Clinton in response to the attack (“America is not at war”) and the lack of a report indicating the existence of hostilities despite the War Powers Resolution reporting requirements. Nashiri argues that the actions of the executive branch similarly point to its belief that the Cole bombing was a peacetime terrorist attack—the FBI led the investigation, for instance. Finally, the brief points out that the executive did not suggest that Yemen was a theater of hostilities at all until 2003 (more than a year after Nashiri was in U.S. custody), and that it was not recognized as such by Congress until 2009.

The Merits Amici

Two amicus briefs in support of Nashiri address the merits—one from 14 retired military Admirals and Generals of the U.S. Armed Forces (the RMAG brief), and one from David Glazier, a professor of law and long-time commentator on Guantánamo and military commissions. Both briefs argue first that military-commission jurisdiction is and should be strictly limited. Professor Glazier notes that, as a result of the 2001 AUMF and subsequent MCA, “the government purports to have the freedom of choice between military commissions and federal courts for the trial of almost any accused terrorist.” Glazier Br. at 4. But, Glazier argues, this claim ignores Supreme Court precedent, even that of Hamdan, which allows military commissions only “provided that the commissions compl[y] with jurisdictional and procedural mandates contained in both U.S. and applicable international law.” Glazier Br. at 5-6.

Because U.S. and international law limit military-commission jurisdiction to the prosecution of war crimes (query where the Al Bahlul IV decision will land), Glazier argues that military commissions must distinguish between peacetime terrorist attacks and terrorist attacks in the context of recognized hostilities. Glazier, like Nashiri, looks at the question politically—was there an armed conflict recognized by the political branches at the time of the attack? Did the government’s response to the attack signal that it viewed the attack as an act of war? Glazier concludes that not only is there no evidence in the U.S. response to conclude that the Cole bombing was viewed an act of war, but that the evidence definitively favors treating the attack as a peacetime terrorist attack, subject to criminal prosecution in Article III courts. Furthermore, “[t]he default position under international law is that acts of terrorism constitute crimes, not acts of war,” and “[t]he scale of death and devastation resulting from 9/11 continue to render it unique in being recognized as constituting an armed attack.” Glazier Br. at 13, 15.

The RMAG amicus makes the specific constitutional argument that subjecting Nashiri to military commission amounts to imposing retroactivity in violation of the Ex Poste Facto Clause. To retroactivity and fair notice broadly, the brief argues, “no accused could have had notice that the laws of war applied in Yemen in 2000”—and in fact, “the President and Congress’s pronouncements that the United States was not at war in Yemen provided notice that the laws of war did not apply.” RMAG Br. at 18. To the Ex Poste Facto Clause in particular, “[o]ne cannot violate the laws of war—substantive crimes—if there was no war.” Thus, by treating the existence of hostilities as a factual question that can be decided in retrospect, the government effectively “convert[s] conduct that could not have constituted war crimes in 2000 into war crimes now in 2015.” RMAG Br. at 20.

Both amici address the unintended consequences of allowing the government to treat the existence of hostilities as a factual question subject to retrospective determination. They both argue that perceptions of the legitimacy of our military courts system affect the security of our armed forces. The RMAG amicus argues that reciprocity is a key determinant in ensuring the safety of US troops that are captured abroad, citing as evidence of the power of reciprocity and legitimacy the fact that 99% of U.S. war prisoners in Germany during World War II survived.

Glazier’s arguments appear to be aimed at exposing the incoherence of the current legal regime and the government’s position regarding Nashiri. To take one example, Glazier argues that the government’s position on the merits here “essentially relies on Osama bin Laden’s fatwas calling for violence against the United States as an effective ‘declaration of war.’” Glazier Br. at 16. Glazier points out that the logical extension of this argument would mean that terrorist organizations could declare hostilities, and “would then be exempt from criminal accountability if they simply adopted law of war compliant means.” Glazier Br. at 16. The absurdity of the claim underscores the incongruity of the government’s argument in the wider body of laws of war.

What’s at Stake in the Merits?

It is difficult to parse exactly what effect a ruling on the merits—versus a ruling purely on abstention grounds—would have, but it would certainly send important signals about how much leeway the court will allow the executive branch going forward. (Though, of course, a ruling only on abstention would send its own signals in that regard.) Nashiri is currently the only detainee charged with pre-9/11 offenses (putting aside charges relating to the 2002 M/V Limburg bombing, which were dismissed by Nashiri’s commission trial judge and for which the government’s appeal remains on hold while the CMCR judges are re-appointed). A decision that Nashiri’s pre-9/11 crimes were not “in the context of and associated with hostilities” would directly affect only Nashiri, not any of the other detainees facing military commissions. A decision on the geographic, rather than exclusively on the temporal, scope of the crimes under military commission jurisdiction could have a larger impact (and Nashiri’s brief treats geography and time each as required elements, which seems to square with the Supreme Court’s discussion in Hamdan), but that would be an uncharacteristically broad ruling in the Guantánamo context. Still, any merits ruling would nevertheless be an important decision for military commissions at large: it would go a long way in showing how broadly the court will interpret the MCA and constitutional limits on military jurisdiction and how much deference it is willing to afford the executive. These are no small stakes, even if the immediate impact of a merits ruling would be necessarily limited.

What is at stake for Nashiri specifically is the difference between a trial in an Article III civilian court—with its attendant procedural safeguards—and a trial in a military commission. In effect, Nashiri argues that if the government wants to prosecute him, it must do so in an Article III civilian court because the MCA limits the jurisdiction of military commissions to crimes of which he is not accused and to which the laws of armed conflict apply. Whatever you think of the propriety of military commissions to try suspected terrorists, there is little doubt that the proceedings in an Article III court would play out very differently. In a December press briefing at Guantánamo, Walter Ruiz, defense counsel for al Hawsawi in the 9/11 commissions, catalogued various ways in which military judges are deferential to the prosecution—deference that, in his assessment, would never be shown by an Article III judge. Likewise, Nashiri points out the evidentiary and procedural safeguards that do not apply at the Guantánamo commissions: “rules on hearsay, coerced confessions, and judicial independence.” Pet. Br. at 54. Nashiri’s brief appropriately quotes Justice Harlan’s 1957 concurrence in Reid v. Covert: “the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority.”

Beyond its implications for separation of powers and for Nashiri personally, the case also has foreign policy importance. The RMAG amicus argues that the government’s position amounts to a revision of the historical record, “declaring a period of peace to have been a period of war in order to establish jurisdiction over [Nashiri].” As the amici explain: “This is not a minor matter. Determining when the United States is in a state of hostilities in another country has broad diplomatic and legal implications.” RMAG Br. at 9, 11.

All that being said, the court may be unlikely to reach the merits at all—particularly given Monday’s news that the February 17 panel will be Judges Tatel, Griffith, and Sentelle. But the merits questions should not be overlooked, even if the DC Circuit is likely to skirt them. Nashiri argues that deciding the merits question now benefits all and risks nothing: “If the government prevails on the merits, the jurisdictional cloud hanging over this case will be lifted. If it is wrong, it will avoid the waste of a futile capital trial in Guantanamo and will remain able to pursue Al-Nashiri under the SDNY Indictment.” Pet. Br. at 56. This apparently reasonable proposition is nevertheless unlikely to persuade a deference-inclined panel.