When Did the War With al-Qaeda Start?

On Wednesday, the DC Circuit is scheduled to hear oral arguments on a request to halt the military commission prosecution of Guantánamo detainee Abd al-Rahim Hussein al-Nashiri. The 51-year-old Saudi national is accused of, among other things, plotting the bombing of a US Navy ship docked in the port of Yemen in 2000 that killed 17 American sailors. Sixteen years later, and nearly a decade after being brought to Guantánamo, al-Nashiri still has not been tried.

In fact, because the government brought this prosecution in a Guantánamo military commission instead of in a civilian federal court, the case has been hung up in procedural arguments bouncing up and down between the commission, the Court of Military Commission Review, various district courts around the country and the DC Circuit Court of Appeals for the past five years.

The al-Nashiri case raises a host of complicated procedural issues that have been spelled out previously on this site (including here, here and here), but the subject of Wednesday’s argument is perhaps the most fundamental: Do the charges against al-Nashiri belong in a military commission at all? President George W. Bush declared war against al-Qaeda after the September 11 terrorist attacks. The USS Cole was bombed in Yemen a year earlier. All parties agree that if the United States was not at war with al-Qaeda in Yemen at that time, then the military commissions do not have jurisdiction over the charges against him.

As set forth in The Military Commissions Act of 2009, military commission jurisdiction is limited to offenses “committed in the context of and associated with hostilities.” The statute defines “hostilities” as “any conflict subject to the laws of war.” The disagreement is over whether such a conflict existed in 2000.

The government argues that the United States was actually engaged in a global armed conflict against al-Qaeda back in 2000 and even earlier, notwithstanding that neither the President nor Congress ever acknowledged one. It cites Osama bin Laden’s 1996 “Declaration of War” calling for attacks on US military personnel in the Arabian Peninsula, his subsequent 1998 fatwa commanding Muslims to kill Americans and the US military’s response to al-Qaeda’s 1998 bombing of US embassies in Kenya and Tanzania.

The historical record, however, suggests the US government responded to those as isolated acts of terrorism, not as an ongoing armed conflict. Perpetrators of the 1998 embassy bombings were prosecuted in federal court in New York. And although President Clinton responded with missile strikes targeting al-Qaeda training camps in Afghanistan and a suspected chemical weapons facility in Sudan, he never styled those strikes as part of an ongoing armed conflict against al-Qaeda. On the contrary, he characterized them as singular strikes consistent with the US right of self-defense under Article 51 of the UN Charter. He never sought an authorization for the use of military force from Congress, which would have been necessary for any continuing military engagement.

Indeed, following the USS Cole bombing, President Clinton told Congress that US personnel were deployed to Yemen “solely for the purpose of assisting in on-site security.” And in a public address, he said that “even when America is not at war, the men and women of our military risk their lives every day in places where comforts are few and dangers are many,” noting that “the strength of our military is a major reason we are at peace.”

Congress, too, held hearings following the Cole bombing, but took no action that could have triggered application of the laws of war.

Perhaps recognizing that it’s on shaky jurisdictional ground in the al-Nashiri case, the Defense Department also makes various procedural arguments for why the DC Circuit shouldn’t even address the central question of when the war began, and should instead leave that to the military commission to decide at trial. The court may well accept that offer to avoid getting involved, at least for now.

But a key question remains: Why is the Obama administration spending so much time, energy, and resources to keep this case in the military commissions, with their endless delays and mishaps, when the charges could much more easily and legitimately be brought in a civilian federal court? Admittedly, Congress has used the National Defense Authorization Act to ban funding transfers of Guantánamo detainees to the United States, even for trial. But if the Obama administration is really intent on closing Guantánamo, it seems both pointless and disingenuous to contort history to pursue this losing battle in the commissions.

The years-long jurisdictional battle in this case highlights just what a mess the military commissions have created — not only because an alleged al-Qaeda terrorist and mass murderer is nowhere near being tried 16 years after the attack and after 14 years in US custody. The al-Nashiri case also highlights the damage the commissions are doing to the integrity of the US military justice system, the US reputation for abiding by the rule of law, and the safety of US soldiers and citizens around the world. It’s hard to fathom why President Obama, whose repeated pledge to make every effort to close the Guantánamo detention facility has become something of a mantra, continues to invest in the handful of cases that have been languishing in the dysfunctional military commissions there for years.

There is no question that charges against al-Nashiri could have been brought — and could still be brought — in a civilian court authorized by Article III of the US Constitution, avoiding these jurisdictional battles and resulting delays and complications. In fact, al-Nashiri was named as a co-conspirator (though he wasn’t charged at the time) in an indictment in the US District Court for the Southern District of New York, which was unsealed on May 15, 2003 and remains pending today. That same court has convicted at least 54 people on terrorism-related charges since 9/11.

Al-Nashiri presumably wasn’t indicted in 2003 in New York only because the CIA had whisked him away after his arrest by local authorities in Dubai in October 2002 and held him incommunicado for four years, torturing him in the hopes of extracting information about al-Qaeda. According to the Senate Intelligence Committee in its review of the CIA’s torture program, al-Nashiri turned out to have little knowledge about al-Qaeda of intelligence value.

Al-Nashiri was eventually charged in a military commission in 2011. The charges allege he was part of a terrorist group in Yemen that conspired to bomb ships there between 2000 and 2002. To fit within the commission’s narrow jurisdiction, however, the government had to claim the actions were part of an armed conflict, well before either the President or Congress had ever acknowledged one. The government also had to claim al-Nashiri was engaged in “perfidy” — essentially, feigning civilian status to dupe the enemy into being attacked. Otherwise, under the laws of war, the US Navy ship and its sailors would have been a lawful target. Marty Lederman explained the legally complex question of what constitutes “perfidy” here, and suffice it to say it’s not at all clear that al-Nashiri’s alleged acts qualify.

And these were actually the most plausible military commission charges against al-Nashiri. The Saudi was also charged with bombing a French tanker, the MV Limburg, in October 2002. Those charges were ultimately dismissed in August 2014, since the government couldn’t convince the commission judge that the attack in Yemeni waters on a French-owned ship carrying Iranian oil on a Malaysian contract was actually a crime arising out of the US war with al-Qaeda.

The problem with pursuing this case in a military commission goes far beyond the importance of trying this particular alleged terrorist. It goes to the legitimacy of the US system of military justice, and to the credibility of the Defense and Justice Departments, which appear to be doing back flips here to avoid bringing their claims in a respected court of law.

As a group of retired military admirals and generals put it in their amicus brief to the DC Circuit, the Defense Department’s attempt to revise history to claim the United States was at war in 2000, contrary to declarations of the executive and legislative branches at that time, “has profound implications on diplomatic relations, the application of numerous laws, and the constitutional authority of the branches of government.”

This attempt at historical revision, they write, not only restricts the rights of the accused in violation of rules against retroactivity and the Ex Post Facto and Due Process clauses, but “calls into question the integrity of the civil and military justice system, threatens the safety of U.S. soldiers and citizens, and contravenes international law. It sets a precedent for other countries to pluck U.S. citizens out of a civil justice system—depriving them of core substantive and procedural protections … simply by arbitrarily declaring that a previously determined time of ‘peace’ is now deemed to have been a time of ‘war.’”

The DC Circuit may or may not decide to rule on this question, given the complicated procedural posture of the case at this point. But the Obama administration’s decision to continue to pursue it in this venue is extremely disappointing. 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Follow her on Twitter (@deviatar).