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The CMCR’s Latest (Non-)Decision in al-Nashiri [UPDATED with links to supplemental briefs]

After a very long delay, and a couple of new presidential appointments of military judges to the court (resolving one of the two serious structural problems Steve has described elsewhere), the Court of Military Commission Review has finally issued its decision in the government’s interlocutory appeal on the MV Limburg aspect of the case against Abd al-Rahim Hussain al-Nashiri. (You may recall that the majority of charges against al-Nashiri involve the bombing of the USS COLE in October 2000, two years before the Limburg bombing. Several pre-trial appeals are pending in the US Court of Appeals for the D.C. Circuit on issues related to the military commission’s jurisdiction over the COLE bombing charges, including on the question of whether the armed conflict with al Qaeda had begun as of October 2000. For more on that issue, see our earlier posts here and here.)

This post briefly describes what the CMCR held in its most recent decision, and what will likely come next in the Limburg part of the al-Nashiri case. 

Al-Nashiri is alleged to have been responsible for the bombing of the Limburg off the coast of Yemen in October 2002. Unlike the COLE, the Limburg was neither a US ship nor a military vessel: It was a civilian tanker registered under a French flag, chartered by a Malaysian firm (Petronas), and carrying almost 400,000 barrels of crude oil from Iran to Malaysia. The attack killed one person (a Bulgarian crew member), injured a dozen others, and caused about $45 million in damage. It also caused a temporary shutdown of shipping in the Gulf of Aden. The attack obviously affected France, Malaysia, Iran, and Bulgaria. Therefore, if al-Nashiri is responsible for the attack, he violated plenty of ordinary criminal laws (including, presumably, the laws of France, Malaysia, and Yemen), and he should be held accountable in a criminal trial. The critical question, however, is whether he can be tried for violations of the laws of war … and, if so, why he can be tried in a U.S. military tribunal.

As Marty described in greater detail in an earlier post, 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 in turn depends upon whether the bombing was committed as part of al Qaeda’s armed conflict with the United States, even though the US had no apparent connection to the ship. If it was not a law-of-war offense — if it was, instead, merely an “ordinary” terrorist attack on a civilian vessel — then it was still unlawful, but the military commission would lack statutory subject-matter jurisdiction over the Limburg charges, and might lack constitutional subject-matter jurisdiction over them, as well.

The prosecution asserts that it will be able to show that the Limburg bombing was part of the armed conflict between the United States and al Qaeda because it 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. Unfortunately, the trial judge, Vance Spath, did not rule on whether proof of some or all of those facts would be legally sufficient to establish that the Limburg bombing was a law-of-war offense in an armed conflict involving the United States. 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 a showing.

The government took an interlocutory appeal of Judge Spath’s partial dismissal to the CMCR, not so much on the merits, but principally on the ground that the question of whether the bombing was part of the armed conflict is a determination that the military panel should make at trial, after the government has presented its evidence.

The CMCR’s latest ruling reverses Judge Spath’s dismissal of the Limburg charges, but it does not reach the merits of the key “armed conflict” question.

The court’s opinion is prolix and somewhat difficult to parse. Two things about it stand out, however:

First, the court apparently held (p. 10) that whether the Limburg bombing occurred during an armed conflict is not a question of subject-matter jurisdiction: “[A]ppellee incorrectly couched his argument in jurisdictional terms.” (See also the court’s section heading on page 7: “Subject-Matter Jurisdiction Not Implicated.”) The court did not offer much of a rationale for this conclusion, however. The entire basis for its holding appears to be the fact that the armed conflict question is not mentioned in the section of the MCA titled “Jurisdiction of military commissions,” 10 U.S.C. § 948d.

Another MCA provision, however, 10 U.S.C. § 950p(c), states plainly — and correctly — that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” (As Marty explained in his earlier post, the MCA in turn defines “hostilities” as an armed conflict “subject to the laws of war.”) Subsection 950p(c) is, thus, like § 948d, a provision establishing a statutory precondition for the commission’s exercise of subject-matter jurisdiction. Indeed, even if the MCA itself did not require that the charged conduct was part of an armed conflict that violated the laws of war, the Constitution probably imposes such a requirement for military commission trials, as Steve has argued at length. The CMCR’s decision about subject-matter jurisdiction, therefore, is almost certainly incorrect.  [UPDATE: The CMCR has now posted the supplemental briefs that the parties filed shortly before it issued its decision.  Here is the government’s brief, and here is al-Nashiri’s.  In our view, the government, like the CMCR, does not deal effectively with the key phrase in the statute–“triable by military commission”–nor with the constitutional requirement lurking behind it, both of which confer subject-matter jurisdiction on military commissions of this sort only if the charged conduct took place as part of an armed conflict (which itself is a prerequisite for application of the laws of war that are the basis for the offenses charged). In fairness to the court and to the government, this oversight might well be, at least in part, a function of the fact that al-Nashiri’s briefs, too, elide the central question, and the critical statutory language.  al-Nashiri’s supplemental brief, for example, make a very oblique reference to the constitutional question (see the quotation from Kinsella on page 2), but otherwise focuses primarily on “the question of extraterritoriality,” which is, in our view, quite beside the point.  (al-Nashiri did invoke the critical argument about statutory and constitutional subject-matter jurisdiction, albeit only in passing, on page 19 of his opening brief.)]

Second, the court then proceeded to hold (p. 25) that even if the armed conflict question were one of subject-matter jurisdiction, it is also an element of the charged offenses, and therefore it ought to [must?] be resolved at trial, rather than before trial: “[B]ecause this pretrial motion raises factual questions that are interwoven with the issues on the merits, resolution of those factual questions must be deferred until trial.” (The court cryptically added that the military judge could decide the “factual” question before trial, on a motion for dismissal, under certain “circumstances” that are not clearly delineated but that appear to include a possible party stipulation to the facts in question, or the judge’s acceptance of “a full proffer to determine the nexus issue in a pretrial hearing.”)

Unfortunately, the CMCR did not come to terms with the real issue presented by the Limburg charges (in part because the parties’ briefing was not very clear on it) — which is a question of law, not fact. The legal question is whether the facts the government says it will prove — 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”; and/or that al Qaeda intended the bombing would result in raising the worldwide price of oil in a way that would harm the US — would be legally sufficient to demonstrate that the attack was part of the United States/al Qaeda armed conflict (and, thus, a violation of the principle of distinction, without which the court would lack subject-matter jurisdiction over the charged offense). In order to answer that question, the court could assume for the sake of argument that the prosecution will, indeed, prove the facts that it says it will demonstrate about al Qaeda’s intended plan and the effect of the oil spill on the United States. If that proof would be legally insufficient (a difficult and unresolved question, we think), the Limburg charges should be dismissed before the evidence is submitted to the panel. (The same basic point is true with respect to the COLE charges: The court(s) can and should decide before trial the legal question of whether the armed conflict with al Qaeda had begun on or before the COLE bombing in October 2000, assuming the government can prove the facts that it alleges.)

Hamdan v. Rumsfeld offers an instructive analogy. In that case, seven of the Justices debated, before trial, whether Hamdan’s alleged conduct, if proved, (i) occurred during an armed conflict; and (ii) constituted a law-of-war offense triable in a military commission. (Four Justices would have answered both questions “no”; three others “yes.”) Although three of the Justices further concluded that the federal habeas courts should engage in a form of discretionary abstention to allow the military courts to resolve the questions in the first instance (a view that the majority of the Court rejected), none of the Justices suggested that such jurisdictional questions must be reserved for trial: All of the Justices assumed that these were exactly the sorts of questions of law that judges can and should answer themselves before trial — namely, if the prosecution carries its burden of proof on the underlying facts at trial, would such a showing suffice to establish military commission jurisdiction over the offense?

The same sorts of legal questions should be resolved before trial as to the Limburg and COLE charges in al-Nashiri’s case, too. Just as in Hamdan, the government and the accused “both have a compelling interest in knowing in advance whether [al-Nashiri] may be tried by a military commission.” 548 U.S. at 589.

An appeal by al-Nashiri to the D.C. Circuit could perhaps lead to resolution of the Limburg-related threshold jurisdictional issue that the CMCR’s latest opinion (frustratingly) leaves open. The MCA, however, does not allow a defendant to appeal an adverse decision by the CMCR on an interlocutory appeal by the government, as the D.C. Circuit confirmed in its 2008 ruling in the Khadr case. Therefore, the only way for al-Nashiri to take these matters to the D.C. Circuit at this stage would be through (yet another) petition for a writ of mandamus. And although the D.C. Circuit confirmed its jurisdiction to issue such mandamus relief to the CMCR at an earlier stage of al-Nashiri’s case, it has also made clear that it will not issue a writ of mandamus in such circumstances unless the defendant’s entitlement to relief is “clear and indisputable.”

We think it’s possible that the Court of Appeals would find it clear and indisputable that the purely legal question presented by the Limburg charges can and should be answered by the court before trial. Even if it did, however, the answer to that legal question, as we’ve noted, is a different matter altogether, and one that the Court of Appeals might remand to the CMCR in the first instance.

All of which is to say that the al-Nashiri trial will not begin any time soon…

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About the Authors

is a professor at the Georgetown University Law Center.

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).