Summary: Denial of Motion to Dismiss in 9/11 Military Commission

On April 25, Col. James Pohl, the presiding judge in United States v. Khalid Shaikh Mohammad et al. (commonly called the “9/11 case”), issued a ruling denying defendant Mustafa al-Hawsawi’s motion to dismiss all charges against him for lack of personal jurisdiction. Al-Hawsawi filed the motion to dismiss in April 2017, asserting that he does not meet that statutory criteria in the Military Commissions Act of 2009 defining who may be subject to trial by military commission. Co-defendant Ammar al-Baluchi (also known as Ali Abdul Aziz Ali) joined the motion, but in October the commission deferred litigation related to al-Baluchi pending consideration of his requested witnesses. Pohl’s ruling Wednesday only reached al-Hawsawi’s claim.

Al-Hawsawi challenged the commission’s personal jurisdiction on the grounds that he is not properly classified as an “unprivileged enemy belligerent” because his alleged actions did not take place in the context of “hostilities” as required by the statute. He argued (by incorporation from a prior motion to dismiss for lack of subject matter jurisdiction) that relevant hostilities between the United States and al-Qaeda did not exist prior to 9/11 and that he and his co-defendants therefore cannot be charged with conduct prior to 9/11; the jurisdiction of the commission is temporally bound, with 9/11 as its furthest reach.

Pohl rejected this position, finding that “the plain language of the [MCA] contemplates prosecution for offenses occurring ‘on, before or after September 11, 2001.’” He then considered whether Congress had the authority to extend military commission jurisdiction to pre-9/11 conduct, and concluded:

a) [it was] appropriate to defer to the effective determinations of the political branches that hostilities existed as of September 11, 2001, and for at least some period before; …

b) as applied to this case and its facts, the system of military commissions thus established does not so clearly offend separation of powers principles that the relief Mr. Hawsawi seeks here is warranted; …

c) [it was] unnecessary to decide a date certain for the commencement of hostilities.

Pohl turned next to al-Hawsawi’s personal involvement in the relevant hostilities, assessing whether the defendant (a) materially supported the hostilities identified above; or (b) was a part of al Qaeda at the time of the alleged offenses. On the material support prong, based on al-Hawsawi’s long-standing connection to, and leadership role in, al-Qaeda, and his knowing and willful provision of direct and substantial financial and logistical support to several of the 9/11 hijackers, the judge found it “clear [that] Mr. Hawsawi has, at least, purposefully and materially supported al Qaeda in the above-referenced hostilities against the United States.” Adopting the functional, case-by-case approach of Bensayah v. Obama for determining whether al-Hawsawi was “part of al Qaeda”, Pohl concluded it was

highly unlikely that someone not a “part of” al Qaeda would be entrusted with substantial direct authority over its funds—particularly funds spent in knowing support of significant and sensitive operations. The support Mr. Hawsawi provided was closely proximate in time and causation to major violent attacks conducted by al-Qaeda, and was necessary for their success. His long-standing and persistent involvement with al-Qaeda, to include regular interaction with senior officials and leaders, demonstrates his affiliation was neither casual nor superficial. This sufficiently establishes that Mr. Hawsawi was “part of al Qaeda” for purposes of this Commission’s personal jurisdiction over him.

In sum, the commission found that:

(1) Mr. Hawsawi is not, and has never been, a citizen of the United States;

(2) Mr. Hawsawi is not a “privileged belligerent” within the meaning of 10 U.S.C. § 948a(6);

(3) A state of hostilities existed between the United States and the transnational terrorist organization known as al Qaeda on, and for an indeterminate time before, September 11, 2001; and

(4) Mr. Hawsawi both (a) materially supported al Qaeda in the hostilities referenced in the subparagraph above; and (b) was part of al Qaeda at the time of the offenses alleged.

On that basis, Judge Pohl denied the defense motion to dismiss as it relates to al-Hawsawi.