The DC Circuit’s recent ruling in In re Al-Nashiri missed an opportunity to clarify an important question in the current US military commissions: when did the armed conflict against al Qaeda start. The defendant, Abd al-Rahim al-Nashiri, had brought a pre-trial challenge to his prosecution for his alleged role in the 2000 bombing of the USS Cole. Al-Nashiri claimed that because the US was not engaged in an armed conflict with al Qaeda before 9/11, the commission lacked authority to prosecute him under the Military Commissions Act (MCA).

In a divided opinion, the DC Circuit refused to hear the challenge, relying on the doctrine of Councilman abstention, which governs federal court consideration of pre-trial challenges to military prosecutions. Although the doctrine was developed in the distinct context of courts-martial, the panel majority relied on it in rejecting Al-Nashiri’s challenge to his military commission. As Steve Vladeck has detailed, the commissions’ poor track record does not support the panel’s deference to them or its reliance on principles of inter-branch comity. And, as Steve notes, it would save everyone—including the government—substantial time and expense to determine whether the defendant could be tried for a war crime based on the durational parameters of the war before proceeding with such a lengthy and costly prosecution. 

In dissent, Judge Tatel said the court should have decided the merits of Al-Nashiri’s claim. Judge Tatel maintained that the significant differences between the criminal prosecution of non-servicemembers in military commissions and the criminal prosecution of servicemembers in courts-martial (the heartland of Councilman abstention) weakened the comity arguments that ordinarily support abstention. Judge Tatel also noted the dearth of jurisprudence on military commissions and the scope of their authority, despite their decade-and-a-half of existence.  Such continued uncertainty, he explained, cuts against further delaying judicial review of a question as fundamental as the one raised by al-Nashiri.

Perhaps most notably, Judge Tatel emphasized “the unique and troubling circumstances” of Al-Nasrhi’s case—namely his well-documented torture by US agents at a secret CIA black site, prior to his transfer to Guantanamo in 2006. Judge Tatel found that al-Nashiri’s brutal torture by the US—the same government now seeking to prosecute, convict, and execute him—constitutes the type of extraordinary circumstances warranting federal judicial intervention in a pending commission case. Judge Tatel noted that forcing al-Nashiri to stand trial before a military tribunal that may lack authority to prosecute him could cause irreparable harm in light of the prior psychological damage he has suffered.

More broadly, Judge Tatel’s dissent suggests that the legacy of US torture will not easily be whitewashed from the commissions, notwithstanding efforts by Congress and the White House to improve their procedures. Indeed, the US torture program implemented by the Bush administration after 9/11 is closely connected to the birth of the post-9/11 commission itself, which was originally designed to allow for the use of evidence obtained by torture and other mistreatment. (The use of such evidence was expressly precluded by the 2009 MCA.) Al-Nashiri’s trial could thus become a test of the willingness of his judges—both on the commission and in the federal judiciary who will ultimately review any conviction—to compartmentalize CIA torture and proceed as though the commissions are free of taint. Most critically, the commissions’ members will have to decide whether al-Nashiri (as well as those defendants facing military prosecution for the 9/11 attacks) should be executed if convicted. (I’ve previously argued that CIA torture should take the death penalty off the table). In this respect, the D.C. Circuit’s consideration of Al-Nashiri’s pre-trial challenge to his prosecution may merely be a prelude to a larger battle to come.