What Title 18 Charges Could Have Been Brought Against al-Nashiri?

News that charges have been re-sworn against al-Nashiri in the military commission system has prompted commentary regarding which Title 18 offenses could have been brought had he been charged instead in a civilian court.  That's an interesting question.  Let's assume for the sake of arugment that the government can prove that al-Nashiri (i) was an al Qaeda member  from roughly 1998 through his capture in late 2002, (ii) orchestrated the failed attack on the USS Sullivans in 1999, (iii) orchestrated the successful attack on the USS Cole in 2000, and (iv) orchestrated the successful attack on the MV Limburg in 2002.  What charges might this support?  Start with membership in al Qaeda, separate and apart from the three bomb plots.  One could argue that al-Nashiri provided himself as personnel to al Qaeda in violation of the 1996 material support statute, 18 USC 2339B, or that he provided al Qaeda various forms of support in more particular ways.  But 2339B did not apply extraterritorially until 2004, amazingly enough, so forget about that.  Might membership in al Qaeda be assimilated into participation in an overarching conspiracy to commit illegal killings abroad in violation of 18 USC 956(a)?  Not if you have no elements of planning in the United States.  But note the approaching taking by federal prosecutors in 2000 when they indicted al-Nashiri's co-conspirators al-Badawi and al-Quso (who remain at large, the former having escaped from a Yemeni jail in the interim).  The first count in that indictment is 18 USC 2332b, which criminalizes conspiracies to kill US persons in the United States where the planning has transnational elements.  There are two tricky parts to that argument.  First, one needs to convince the court that conspiracy liability can attach at this level of generality.  I think the law on this point is far broader and prevention-oriented than many people assume, and would point to the success of such an approach in the Padilla prosecution in Miami.  That said, one can't be entirely sure a judge would accept this broad a framing of a conspiracy.  Second, this particular conspiracy statute requires a US territorial nexus.  I suppose if one can establish the idea tha a conspiracy can be framed at a high level of generality as described above, then one can satisfy the territorial element as to al Qaeda.  In any event, there are easier charges to sustain, as I discuss below.  The two attacks directed at the US Navy ships would be much easier to prosecute.  I think 18 USC 2332a(1) would apply, for example, and the al-Badawi/al-Quso indictment illustrates several more (such as 18 USC 1111 and 1114).  Interestingly, the 1994 material support statute (18 USC 2339A) arguably would not because that statute did not apply extraterritorially until the PATRIOT Act was passed in November 2001 (though the al-Badawi/al-Quso indictment does charge this offense as well; that indictment also charges 2339B, which suffers from the same flaw as noted above).  What about the Limburg attack?   That's a tough one due to that attack's lack of a US nexus (no US person as perpetrator or victim, no US property, no element of planning or perpetration in US territory).  Simply put, the various terrorism-related violent crime statutes (such as 2332a. above) typically require some such nexus, and the 1994 material support statute (which is silent on questions of extraterritoriality) can't attach without a link to one of those underlying offenses.  As for the 1996 material support statute, 18 USC 2339B, it would apply if not for the timing of the Limburg attack in 2002; 22339B did not become extraterritorial until 2004.  What about the War Crimes Act, given that this was an attack on a non-military vessel?  Well, 18 USC 2441, does not criminalize all law of war violations (assuming you have a context of armed conflict for this attack, which I appreciate some context).  Instead, it incoporates by reference grave breaches of the 1949 Geneva Conventions, certain Hague Convention articles, Common Article 3 breaches (in 2002 the statute simply incorporated CA3 by reference), and violantions of the 1996 Geneva mines protocol.  On close inspection, none of these seem applicable here (the relevant Hague provisions are close in spirit, but not in letter).   On this dimension, the military commission system has broader reach than the War Crimes Act.  But perhaps I'm missing something obvious that would apply to the Limburg attack?  I'll happily post an update if anyone has a plausible suggestion.