New al-Nashiri developments . . . regarding the MV Limburg and USS COLE charges [UPDATED as of late November]

In recent days the lawyers for Abd al-Rahim Hussain al-Nashiri, the military commission defendant charged with involvement in the bombings of the USS COLE and MV Limburg, have made notable filings with respect to three aspects of the case:

1.  On Tuesday, al-Nashiri’s lawyers filed their appellate brief in the interlocutory appeal before the Court of Military Commission Review, in which they urge the CMCR to affirm the trial judge’s decision to dismiss the Limburg-related charges.  (They had also moved to dismiss the appeal as untimely, but the CMCR denied that motion.)  In a recent post I described the issues on that appeal in much greater detail.  The substantive issue, in a nutshell, is whether the bombing of the Limburg was a violation of the law-of-war prohibition on targeting civilians (the “principle of distinction”)–which depends upon whether the bombing was committed as part of al Qaeda’s armed conflict with the United States, even though the U.S. had no apparent connection to the ship.  If it was not a law-of-war offense–if it was, instead, only an “ordinary” terrorist attack on a civilian vessel–then the military commission lacks subject matter jurisdiction over the Limburg charges.  

The prosecution asserts that it will be able to show that the bombing was designed “to influence and affect the conduct of the United States government by intimidation”–in particular, to “send a message to the United States not to travel through Yemen and the Arabian Peninsula.”  The preferred charges also allege that the attack caused the spill of 90,000 barrels of oil into the Gulf of Aden.  The trial judge, unfortunately, did not rule on whether proof of such facts would be legally sufficient to establish that the Limburg bombing was a law-of-war offense.  Instead, Judge Spath dismissed the charges solely because the prosecution had not come forward with the evidence that it plans to use to try to make such showings.

The prosecution argues to the CMCR that the jurisdictional question is premature–that the judge should not have considered the sufficiency of any evidence, even in order to adjudicate the jurisdictional question, until the government proffers its case-in-chief at trial, at the earliest.  al-Nashiri argues, in response, that it was lawful and appropriate for Judge Spath to have considered the question of subject matter jurisdiction before trial, and that the government has effectively waived its right to argue in favor of such jurisdiction by failing to adduce any evidence to the trial judge that the Limburg bombing was part of the al Qaeda/U.S. armed conflict.

It’s understandable, in light of the less-than-pellucid nature of the proceedings below, that the briefs on the interlocutory appeal are devoted principally to procedural disputes (as well as to questions about personal jurisdiction and the international law principle of “protective jurisdiction”–questions that are, in my view, rather beside the point with respect to the dispositive issue of the commission’s law-of-war jurisdiction).  Unfortunately, this emphasis means that neither of the briefs focuses the CMCR upon what I consider to be the key question, one that ought to be antecedent to the question of when the government must tender its evidence and that would ideally be decided prior to trial–not a test of the evidence itself, but instead whether the facts the government intends to prove (e.g., that the Limburg bombing was part of a common “boats operation” plot (together with the COLE bombing) that al Qaeda designed in order to “send the U.S. a message”; that al Qaeda intended the bombing would result in raising the worldwide price of oil in a way that would harm the U.S.) would be legally sufficient to demonstrate that the Limburg attack was part of the U.S./al Qaeda armed conflict and thus a violation of the principle of distinction, without which the court would lack subject-matter jurisdiction.

2.  In the meantime, al-Nashiri is making efforts to disqualify two of the three judges assigned to the CMCR panel that is hearing the Limburg-related appeal.  The panel consists of two military officers who the Secretary of Defense assigned to the CMCR–Eric Krauss, an Army Colonel, and Jeremy Weber, an Air Force Lieutenant Colonel–as well as Professor Scott Silliman, who was appointed to the CMCR by the President, by and with the advice and consent of the Senate.  See 10 U.S.C. § 950f(b)(2)-(3).  al-Nashiri contends that it is unconstitutional for Judges Krauss and Weber to serve on the CMCR because they are “principal” officers for purposes of the Appointments Clause (Art. II, sec. 2, cl. 2), and they were not appointed in the manner the Clause requires for principal officers–namely, by the President, by and with the advice and consent of the Senate.

The prosecution offers two arguments in response:  (i) that because the Secretary of Defense can remove (or reassign) these two CMCR judges “for cause,” see 10 U.S.C. § 949b(b)(4), those judges are inferior, not principal, officers (in which case their assignment to the CMCR by the Secretary would be a constitutionally sufficient manner of “appointment”); and (ii) that, in any event, even if Judges Krauss and Weber are principal officers, the requirement of the Appointments Clause has been satisfied because they were already commissioned officers, appointed to their Army and Air Force offices by the President, with Senate confirmation, and their assignment to the CMCR is “germane” to the duties of the offices to which they were originally appointed.

The first government argument is almost certainly mistaken:  The Secretary’s for-cause removal authority does not, standing alone, make these CMCR judges inferior officers.  (Importantly, unlike the decisions of the military court in Weiss v. United States (1994), the judgments of the CMCR are not reviewable by any other executive branch officers.)  The government’s second argument, however, should suffice:  Krauss’s and Weber’s original mode of appointment to their commissioned offices satisfies the Appointments Clause, because service on the CMCR, like service as a judge in the courts-martial system, is “germane” to the duties of the military offices to which they were first appointed.  See Weiss v. United States (1994), and pages 547-550 of this 1994 OLC Memorandum.  (al-Nashiri argues that new duties can’t be germane to offices to which the individuals were appointed before Congress created those new duties.  That argument is unlikely to carry the day.  See Shoemaker v. United States (1893).  Wholly apart from the Appointments Clause, al-Nashiri also argues that by allowing the Secretary to reassign officers from their roles as CMCR judges only “for cause” or for “military necessity,” see 10 U.S.C. § 949b(b)(4), Congress has impermissibly infringed the President’s authority as Commander in Chief.  That argument, too, is meritless . . . and it’s not obvious why al-Nashiri would even have standing to complain about limitations on the President’s power to reassign such judges, in any event.)

The CMCR panel unceremoniously denied al-Nashiri’s motion for Judges Krauss and Weber to recuse themselves on constitutional grounds.  On Tuesday, al-Nashiri’s lawyers filed a petition for a writ of mandamus to the U.S. Court of Appeals for the District of Columbia Circuit (No. 14-1203), challenging the legality of Judges Krauss’s and Weber’s service on the CMCR.  The same day, they asked the CMCR to stay its proceedings pending the mandamus proceedings in the D.C. Circuit.  Not surprisingly, the panel promptly denied the stay motion.  It is very likely the court of appeals will deny the petition for mandamus, too, and that the CMCR will act relatively swiftly to adjudicate the interlocutory appeal.  (It has not yet publicly announced when it might hear oral argument.  [UPDATE:  The CMCR scheduled argument for November 12, but the court of appeals issued a stay of CMCR proceedings on November 11, in order to give itself the opportunity to consider the petition for mandamus.]

3.  Turning now from the Limburg-related charges to the charges involving the bombing of the USS COLE:

The primary issue as to the COLE charges, as I’ve explained, is a question of international law–namely, whether the armed conflict between the U.S. and al Qaeda had commenced by the time of the bombing, in October 2000.  If not, then the COLE bombing could not have violated the laws of armed conflict, the military commission lacks jurisdiction, and the COLE charges must be tried, if at all, in an Article III court.

The original military judge, Judge Pohl, denied al-Nashiri’s motion contesting jurisdiction back in January 2013, ruling in effect that the military court must defer to the “collective determination” that Congress and the President “impliedly” made when they enacted and signed the Military Commissions Act that the armed conflict was underway in October 2000 (based upon the provision of the Act specifying that it governs offenses committed “before . . . September 11, 2001”).  al-Nashiri has argued, with some force, that neither Congress nor the President has made a considered judgment with respect to the particular question of whether there was an armed conflict underway as of October 2000.  More importantly, the question of whether an armed conflict existed in October 2000 is one that should not depend exclusively on the views of the political branches of one party to the conflict, and therefore the court should not uncritically defer to the political branches’ views on the question.

In any event, after the military judge denied his jurisdictional challenge, al-Nashiri amended his habeas petition in the U.S. District Court of the District of Columbia to add a challenge to the jurisdiction of the military commission to try him for the COLE bombing.  He moved the district court to preliminarily enjoin commission proceedings pending resolution of his jurisdictional challenge on habeas.  The government’s principal response is that the federal habeas court should as a matter of prudence abstain from adjudicating the jurisdictional question until after the commission trial is completed, per Schlesinger v. Councilman (1975).  Briefing in the district court on al-Nashiri’s preliminary injunction motion was completed on June 11.

Chief Judge Roberts has not yet ruled on Nashiri’s motion to preliminarily enjoin commission proceedings, nor scheduled oral argument on the motion.  In late September, al-Nashiri’s attorneys filed a petition for writ of mandamus in the U.S. Court of Appeals for the D.C. Circuit (No. 14-5229), asking the appellate court to order Judge Roberts to rule on the preliminary injunction motion within 30 days.  There haven’t yet been any further proceedings in either the trial or appellate federal court.  [UPDATE:  On November 18, the court of appeals denied the petition for writ of mandamus, on the ground that al-Nashiri “has not shown that the district court’s delay in ruling on the pending motions is so egregious or unreasonable as to warrant the extraordinary remedy of mandamus.”  The court of appeals added that it “anticipates that the district court will act on the motions as expeditiously as possible.”] 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).