Department of Unshocking: Two More Motions Denied in Al-Nashiri

When we last checked in on United States v. Al-Nashiri, the docket indicated that Judge James Pohl had resolved five of the defendant’s pending motions. Of these, three orders had cleared security review: in them, the commission rejected the accused’s claims that his prosecution violated the Constitution’s federal ex post facto and Bill of Attainder provisions.  We were waiting on the Department of Defense to finish its review of the other two motions. Now these two motions have been unsealed.  Judge Pohl rejected Al-Nashiri’s separate motions to dismiss for lack of jurisdiction, over the charges of conspiracy and terrorism, respectively. (The docket also reflects the commission’s resolution of some additional threshold motions argued during the prior session at Guantanamo; security personnel apparently are still looking these over, and we'll post them as soon as they become available.) As expected, Judge Pohl denied both the remaining motions to dismiss, and, consistent with his approach to Al-Nashiri’s other challenges, did so in an almost summary fashion. Regarding conspiracy, the court’s one page order noted that the Court of Military Commission Review (“CMCR”) “previously decided this issue in United States v. Bahlul whereby the Court found the charged conduct was ‘punishable by military commission as an offense against the law of armed conflict when committed.’” The order called this “clear precedent,” and then swiftly denied Al-Nashiri’s request.  No great surprise there, as Al-Bahlul had been convicted of conspiracy, and unsuccessfully challenged that offense’s status on appeal to the CMCR. (He may yet fare better before the D.C. Circuit, which has yet to set oral argument in Al-Bahlul’s case.) Regarding terrorism, Judge Pohl's opinion again opted for a skeletal approach. In fact he merely repeated the operative language from this ruling regarding conspiracy, the sole change being his reliance upon a different quote from elsewhere in the CMCR’s Al-Bahlul decision.  The court wrote: “The United States Court of Military Commission Review has previously decided this issue in United States v. Bahlul, whereby the Court found ‘Congress acted within the scope of its constitutional authority in defining terrorism as an offense in the 2006 M.CA. and in making such conduct punishable by military commission.’” (Al-Bahlul was not charged with the standalone offense of “terrorism,” like Al-Nashiri has been. Instead Al-Bahlul faced prosecution for, among other things, “material support for terrorism,” and “solicitation to commit terrorism,” two separate offenses with different statutory definitions under the 2006 Military Commissions Act.  In order to assess the defendant’s arguments regarding these latter crimes, the CMCR in Al-Bahlul thought it necessary also to pass on congress’s separate authority to subject “terrorism” to military commission jurisdiction. That discussion by the CMCR supplied the language quoted by Judge Pohl in his order denying Al-Nashiri’s motion to dismiss.) The latest two orders are important, first because they reflect Pohl’s desire not to engage, in his own right, with the government’s new arguments regarding the U.S. “common law of war,” and its adjusted arguments regarding the Define and Punish Clause. The D.C. Circuit is considering both of the government’s latest theories now.  If adopted, they would usher in quite different views of congressional power and commission jurisdiction than those adopted by the CMCR in Al-Bahlul and Hamdan. (Recall also that, during recent oral argument before the D.C. Circuit in the latter case, nobody – neither the government’s attorneys nor the court – was really touting the CMCR’s analysis.) Whatever action the D.C. Circuit may take, Judge Pohl seems content, for now, to rest on the CMCR as controlling authority, and to show as few cards as possible. Secondly, remember that the 9/11 defendants, like Al-Nashiri, face conspiracy charges. Were Khalid Sheikh Mohammed and his four codefendants to lose a motion to dismiss such charges, surely the 9/11 defendants' attorneys would renew their claim that Judge Pohl cannot fairly decide identical matters that past commission accused had raised before him, and lost – as Al-Nashiri did this week.