A Test Case for Guantánamo’s New Convening Authority

The latest Guantánamo military commission case to make headlines—the new charges against Encep Nurjamen (a.k.a. Hambali)—is shrouded in an unusual amount of secrecy. But when that veil is lifted, it reveals a charge sheet containing a legal flaw significant enough for the Pentagon’s newly appointed senior official in charge of such matters—Convening Authority Harvey Rishikof—to demand a do-over. Otherwise, it’s likely to provoke yet another major legal challenge to the jurisdiction of the Guantánamo tribunals, along the lines of the two analogous challenges with cert. petitions pending before the U.S. Supreme Court.

The charges are significant. According to the government, Hambali directed the 2002 Bali nightclub bombings and the 2003 attack on the Marriott hotel in Jakarta. If true, then that’s ever-more reason for the government to get the legal charges right—and in a more perfect world to do so in a federal civilian court that doesn’t suffer from the same continuing challenges to its basic legitimacy. For the foreseeable future, however, Hambali’s fate rests with the military commission process, and the flaw in the charges against him could present yet another stain on that institutional apparatus—as well as a major threat to a successful prosecution.

So what’s the flaw?

As one would expect, two of the most serious charges that Hambali faces are the war crimes of attacking civilians and attacking civilian objects. Yet the charges in both those instances include an element that is simply not viable under the law of armed conflict or international law more generally. Although the charges allege that Hambali intended to commit the attacks, they also rest on the low liability standard of negligence—requiring only that Hambali carried out his intentional actions while “having reason to know the factual circumstances that established [the victims’] civilian status” and while “having reason to know that such property was not a military objective.”

That negligence standard—“having reason to know”—is lower than the cutoff required for war crimes under international law, which is one of recklessness (i.e., consciously disregarding a known risk). Indeed, just think back to the Pentagon’s release of its own report on the Kunduz hospital strike a little over a year ago. In that instance of applying the same body of law to its own soldiers, the Department of Defense stipulated, “The label ‘war crimes’ is typically reserved for intentional acts—intentional targeting [of] civilians or intentionally targeting protected objects.” Note the distinction: It’s not just that the acts are intentional; it’s that they intentionally target protected persons or property. The U.S. government surely can’t have it both ways.

The problem now facing the military commission’s Convening Authority is broader than what to do about the individual case of Hambali. First, the military commissions’ governing regulations include the same flaw: stipulating the lower standard of negligence—while other parts of the Pentagon impose a higher standard, for example, when it comes to reviewing their own troops’ behavior. Second, other Guantánamo commission prosecutions are infected by the same legal contaminant. For instance, one Guantánamo detainee pled guilty to charges for war crimes that included the very same negligence standard as Hambali. And one of the military commission cases now pending before the Supreme Court rested on instructions by the military judge that included the same “should have known” standard for multiple war crimes.

Of course, if the government eventually prevails in its argument that the Guantánamo commissions may constitutionally try offenses (and theories of liability) not recognized by international law, then it may follow that there’s no legal problem with this use of the negligence standard. But it’s hardly obvious that it will prevail, and it’s even less clear why the government would have any incentive to take such a potentially fatal risk in a case with as high a profile as Hambali’s.

Indeed, if it’s as clear as the government suggests that Hambali was intentionally seeking to attack protected persons and property, it would be easy enough for Rishikof, as the Convening Authority, to demand that the charges be reformulated to avoid this very problem. That could be as simple as alleging that Hambali not only intended to commit the attacks, but that he specifically intended to target protected persons and/or property, as such.

More than just an important opportunity to avoid a potential jurisdictional train wreck, this issue also presents Rishikof with an early chance to assert some needed independence vis-à-vis the commissions, and at very little cost to the government (which can simply reformulate and resubmit the charges). In theory, that’s one of the core functions of the Convening Authority—to serve as a check on the prosecution, and ensure that proffered charges are viable as a matter of law. If, instead, he approves the charges as submitted, that would not only open the door to significant litigation in Hambali’s case, specifically, but it would reinforce some people’s concern that the commissions are practically incapable of self-regulation, and must be more carefully supervised by the civilian courts—including, perhaps, by the Supreme Court in Al Bahlul and Al-Nashiri. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).