Three Military Commission Developments

One in the recent past, two more in the very near future. The first came on Friday, when the government added a conspiracy count to the military commission charges against Guantanamo detainee Abdul Hadi al Iraqi.  (Charlie Savage covered the story for the New York Times.) These days we await the D.C. Circuit’s resolution of a long-running dispute over whether commission jurisdiction extends to conspiracy, so far as concerns actions predating the Military Commissions Act of 2006.  But there’s also a separate issue about conspiracy and like offenses, with regard to conduct postdating the statute---as, according to the government’s accusations, a little less than a month of Al-Iraqi’s conduct apparently does.  Friday’s adjustment thus raises questions about Congress’s ability prospectively to subject conspiracy and other crimes not recognized by the international law of war to trial by commission---as Steve explained yesterday, in a great post over at Just Security.  Next up, and by way of reminder: this week will see pretrial proceedings in not one but two commission cases, both of which we’ll cover on Lawfare.  The first is United States v. Al-Nashiri.  An eight-day motions session is scheduled in that case, and commences tomorrow morning.  (The session's docketing order, AE204, is for some reason unavailable now, though it was earlier; we'll post it just as soon as it again materializes on the commissions' website.)  Thursday also promises arraignment in another Guantanamo prosecution, United States v. Al-Darbi. The latter overlaps with Al-Nashiri; in both, prosecutors say the accused played a role in a 2002 attack in Yemen against a French-flagged vessel, the M/V Limburg, which caused the death of one foreign national, injuries to others, and extensive damage.  That allegation itself implicates a threshold legal question, which Marty Lederman describes in detail here.  Tune in, starting tomorrow at 9 a.m.