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More on Al-Nashiri's D.C. Habeas Petition

Wells Bennett
Friday, May 9, 2014, 10:45 AM
Come and get it: a new trove of recently filed and/or unsealed pleadings in the closely watched and vigorously debated case of Al-Nashiri v.

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Come and get it: a new trove of recently filed and/or unsealed pleadings in the closely watched and vigorously debated case of Al-Nashiri v. Hagel et al.    There you'll find Al-Nashiri's motion to supplement his long-running habeas petition, along with the supplemental petition itself and an amicus filing by Professor David Glazier to boot.  (There's a third amicus filing in play, too, apparently submitted on behalf of retired admirals, generals, and colonels---but so far we have only their motion for leave to file, rather than their brief.) Update [11:20 a.m.]: the second amicus brief has been uploaded. Al-Nashiri's supplemental petition opens:
Petitioner files this supplemental petition for a writ of habeas corpus to prohibit Respondents from trying him before a military commission that lacks any lawful claim of jurisdiction over him.  Respondents allege that Petitioner participated in war crimes in Yemen between 2000 and 2002.  None of these alleged crimes took place, however, in the context of any recognized war. Indeed, most of them are the subject of a federal indictment in the Southern District of New York that has been pending since 2003.  Without a nexus to a recognized armed conflict, the military cannot lawfully remove this case from the federal courts into an ad hoc military commission.  Doing so violates the separation of powers, the Bill of Rights, and the explicit terms of the Military Commissions Act of 2009, Pub. L. 111-84, 123 Stat. 2190 §§ 1801-1807 ("2009 Act"), which prohibits the Department of Defense from trying offenses unless they "occurred in the context of and were associated with hostilities."  10 U.S.C. § 950p(c).
The opening to Glazier's amicus brief is as follows:
Domestic and international law have confined military commission jurisdiction to acts taking place during, and directly related to, an ongoing armed conflict. Acts subject to military commission jurisdiction constitute serious violations of the law of war which have recognized penal sanctions associated with their violations. Abd al-Rahim Hussein Al Nashiri ("Nashiri") is facing military commission trial at the U.S. Naval Station at Guantanamo Bay for three incidents that transpired in or near Yemen between 2000 and 2002: the attempted bombing of the USS The Sullivans on January 3, 2000;and the completed bombings of the USS Cole and the French tanker M/V Limburg on October 12, 2000 and October 6, 2002, respectively.  The military commission seeks to try Nashiri for nine charges defined by the Military Commissions Act of 2009, Pub. L. 111-84 §§ 1801-1807 (2009) ("2009 Act") (codified at 10 U.S.C. §§ 948a, et seq.). While charges based on the attempted attack on the USS The Sullivans and the completed attacks on the USS Cole and French tanker M/V Limburg qualify for federal criminal prosecution by Article III courts, these acts fall outside the recognized scope of an armed conflict, a necessary prerequisite for law of war military commission jurisdiction. As detailed below, the United States was not involved in armed conflict during the timeframe of the earlier incidents, nor does the post-9/11 attack on the Limburg, a French tanker under charter to a Malaysian entity, fall within the scope of any armed conflict. The charges thus cannot constitute “war crimes” and fall outside both the constitutional jurisdiction of the military commissions and the statutory ambit of the 2009 Act which limits the commissions to trying offenses “committed in the context of and associated with hostilities.” This memorandum provides background on the limits of military commission jurisdiction and explains why the charged events fall outside the scope of the lawful jurisdiction of the Guantánamo tribunals. It also identifies adverse consequences that may result from allowing the trial to proceed including the impact of the government’s position in which terrorist groups are conceded the historical state prerogative of initiating an armed conflict, placing U.S. military forces at significantly increased risk of future attack; and the increased difficulty victims of these attacks and their survivors will have in recovering for their losses. The commissions also fall outside the legitimate scope of law of war jurisdiction recognized by current international law.
Which brings us to the amicus brief filed by retired admirals, generals and colonels (including, among others, the former Judge Advocate General of the Navy: 
Amici Curiae urge the Court to grant the Petitioner’s motion for preliminary injunction to enjoin the military commission against the Petitioner. Amici Curiae are retired Admirals, Generals, and Colonels of the U.S. Armed Forces, who have dedicated their careers to exemplary legal and military services for the United States. They understand both war and military justice. They have an interest, aligned with the public’s interest, in ensuring that counterterrorism policies pursued by the military conform to the rule of law, in maintaining the integrity of the judicial system, and in protecting the safety of American soldiers and citizens. And, they also have an interest in ensuring that military justice is held in high regard, that military commissions and the laws of war are appropriately limited to situations of armed conflict, and that the scope of armed conflict and the laws of war are not expanded beyond what is legally permitted. Petitioner Abd Al Rahim Hussein Al Nashiri (“the accused” or “Petitioner”) was arrested in 2002 in Dubai and has been held as a prisoner in Guantanamo Bay by the United States. In September 2011, an administrative officer within the Department of Defense issued orders to create a military commission empowered to try charges against the accused. He charged the accused with crimes in connection with events in Yemen in early 2000 concerning the attempted attack on the USS THE SULLIVANS and the subsequent USS COLE bombing in October 2000, as well as an attempted attack on a French tanker, the M/V Limburg, in October 2002. The military commission was established under the Military Commissions Act, 10 U.S.C. § 948 et seq. (2009) (“2009 Act”). The operative provision of the 2009 Act that sets forth subject matter jurisdiction for a military commission provides, “An offense specified . . . is triable by military commission . . . only if the offense is committed in the context of and associated with hostilities.” 10 U.S.C. § 950p(c) (2009). “Hostilities” is defined as “any conflict subject to the laws of war.” 10 U.S.C. § 948a(9) (2009). Amici Curiae support a preliminary injunction because enjoining the military commission in this case serves the public interest. A preliminary injunction is necessary to do the following: (1) Preserve the Presidential and Congressional powers to determine the geographic and temporal scope of war; (2) avoid the fundamentally unfair consequences of altering substantive and procedural rights by revising the historical periods that the President and Congress affixed to hostilities; and (3) protect the integrity of the military justice system and the safety of U.S. soldiers and citizens around the world. At the time of the USS COLE bombing and the events in question at issue in the commission, the President and Congress declared that the United States was in a state of peace—not in a state of war—in and around Yemen. That was a political decision made at the time by the political branches. That decision cannot be historically revised. Yet a historical revision is precisely what the DOD administrative officer purported to do— revising “peace” into “war”—by charging the accused with war crimes for conduct that occurred in a place and at a time when the United States was not at war. This historical revisionism carves away the President’s and Congress’s Constitutional war powers. Such historical revisionism profoundly implicates diplomatic relations, the application of numerous laws, and the President’s and Congress’s constitutional authority. That decision also alters and severely restricts the accused’s substantive rights in violation of rules against retroactivity, the Ex Post Facto Clause, and Due Process. Although the accused might appropriately need to answer charges of violating generally applicable civilian laws in a civilian court, he cannot be charged with violating the laws of war when the political branches declared that the United States was not at war. This historical revision also calls into question the integrity of the civil and military justice system and threatens the safety of American servicemen and women. 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 and subjecting them to summary military trial—simply by arbitrarily declaring that a previously determined time of “peace” is now deemed to have been a time of “war.” The success of our national endeavors and the safety of our servicemen and women all benefit from the perception that our actions are consistent with the rule of law. Conversely, our nation’s moral capital is degraded when we fail to adhere to our own standards. The revision of the historical dates of hostilities here undermines the integrity of military commissions, diminishes our ability to accomplish military objectives, and increases the risk faced by members of our armed forces. This Court should not allow the military commission in his case to go forward under these circumstances. Instead, the Court should grant a preliminary injunction while the Court addresses the merits of the important statutory and Constitutional issues raised in the Petition.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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