Al-Nashiri v. Trump: Where Generals and Jurisdiction Intersect

By Bryce Klehm
Bryce Klehm is a junior at the University of Pennsylvania studying History.

After nearly fifteen years of detention, on January 17, 2017, Abd al-Rahim al-Nahsiri petitioned for a writ of certiorari asking the Supreme Court to hear his case. He was captured by the CIA in 2002 and sent to several black site prisons, including Guantanamo Bay. [1] He has been awaiting capital trial by a military commission since 2008 for his alleged involvement in planning the bombing of the USS Cole in 2000.

The legal question is whether al-Nashiri should be tried before a military commission or a federal court. [2] The 2009 Military Commissions Act states that an offense should be tried by a military commission “only if the offense is committed in the context of and associated with hostilities.” [3] Although this may seem like a clear definition, the MCA defines the term “hostilities” as “any conflict subject to the laws of war.” [4]

The issue with trying Mr. al-Nashiri before a military commission is that the United States was not at war with Yemen at the time of the bombings. Congress passed the Authorization for the Use of Military Force post-9/11, and the President was given the power to recognize “hostilities” in specific places. Yemen was recognized as a region of hostilities on September 19, 2003, three years after his alleged crime. [5]

While al-Nashiri has fought his trial by military commission, the Circuit Court extended a precedent from Schlessigner v. Councilman in which federal courts can abstain from judgment in court-martials because of the “adequacy of the alternative system in protecting the rights of defendants.” [6] In other words, the Circuit Court believes that a military commission is better equipped to handle this case. The counsel for al-Nashiri has argued that years of torture and imprisonment should meet the “extraordinary circumstances” standard, allowing for a federal trial due to potential bias of the military court. [7] But the Circuit Court maintains that there should not be any pre-trial review, only post-trial review by the judiciary, meaning that the federal court should only review the case after the trial is conducted.

A dozen former admirals and generals recently submitted a brief urging the Court to hear al-Nashiri’s case.  The former servicemen submitted the brief “to stress for the Court how allowing the executive branch to subject detainees to military trials of questionable legality will endanger U.S. service members and hinder the effectiveness and legitimacy of U.S. counterterrorism.” [8] They fear that if the post-trial review is implemented, it will undermine any decision of a military trial.

The retired admirals and generals stress that no one is disputing the fact that the United States was not in armed conflict in Yemen in 2000. After citing the Geneva Convention’s two types of conflict, international and non-international armed conflict, the filing describes the factors that determine whether a non-international group can be considered a “party” to an armed conflict. The brief also reminds the Court that the executive branch retroactively claimed that there had been an armed conflict in Yemen in 2000. [9]

While the filing does not explicitly state that the retired generals and admirals believe that the crime should be tried under military commission, the first argument outlines the legitimacy of the military commissions for pre-9/11 offenses. They argue that allowing the trial to continue without clarifying the legality could allow other nations or actors to treat U.S. prisoners harshly. The former servicemen quote General Eisenhower’s justification for giving German prisoners the same rations as U.S. soldiers because he wanted reciprocity for treatment of American POWs in Germany. [10]

This appears to be the weakest argument urging the Court to hear the case because al-Nashiri underwent years of the CIA’s “enhanced interrogation” program. The jurisdiction of a case is a minor issue in comparison with a massive government-sponsored torture program. If there is a concern about potential terrorist recruitment due to the jurisdictional illegitimacy of a military commission, the retired generals and admirals are placing far too much emphasis on terrorists’ thoughts on U.S. jurisdictional disputes.

[1] Carol Rosenberg, "Retired Generals, Admirals Urge Supreme Court to Hear Guantánamo Case," Miami Herald, June 1, 2017. Accessed September 29, 2017. http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article153888859.html.
[2] Aurora Barnes, Petitions of the day, SCOTUSblog (Jul. 14, 2017, 10:01 AM), http://www.scotusblog.com/2017/07/petitions-of-the-day-43/
[3] 10 U.S.C. 950p(b)(3)
[4] 10 U.S.C. 948b(a)
[5] Petition regarding Abd Al-Rahim Al-Nashiri v. Barack Obama, et. al., http://www.scotusblog.com/wp-content/uploads/2017/05/16-8966-cert-petition.pdf
[6] Ibid.
[7] Ibid.
[8] Brief of Amici Curiae Retired Military Admirals and Generals, et al. http://www.scotusblog.com/wp-content/uploads/2017/06/16-8966-ac-retired-military.pdf
[9] Ibid.
[10] Ibid.
Photo Credit: Flickr User/Joint Task Force Guantanamo
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