Military Commissions to Resume Work (But Still Won’t Apply Real Law)

The New York Times has the story today:

Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.

Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

Preparations for the tribunal trials — including the circulation of new draft regulations for conducting them — were described by several administration officials familiar with the discussions. A spokeswoman for the military commissions system declined to comment.

With the political winds now against more civilian prosecutions of Guantánamo detainees, the plans to press forward with additional commission trials may foreshadow the fates of many of the more than 30 remaining detainees who have been designated for eventual prosecution: trials in Cuba for war crimes before a panel of military officers.

The administration is also preparing an executive order to create a parole board-like system for periodically reviewing the cases of the nearly 50 detainees who would be held without trial.

Any charging of Mr. Nashiri would be particularly significant because the official who oversees the commissions, retired Vice Adm. Bruce MacDonald of the Navy, may allow prosecutors to seek the death penalty against him — which would set up the first capital trial in the tribunal system. The Cole bombing killed 17 sailors.

This is a problematic development in numerous respects.  To begin with, as Bobby Chesney recently pointed out at Lawfare, the Court of Military Commission Review has yet — more than a year later — to issue a final ruling concerning the viability of material support for terrorism and conspiracy charges, which are at issue in a large number of the cases pending before the military commissions.  It is difficult to understand what is taking them so long, particularly as there is no coherent argument (other than “we’re the U.S., damn it.  We say what the laws of war are!”) that either material support or conspiracy is a war crime.

Even more troubling — if such a thing is possible — is that the Obama administration intends to try the oft-tortured Nashiri in a military commission, perhaps even seeking the death penalty.  That is an even more significant affront to the principle of legality than trying detainees for material support or conspiracy, because the attack on the U.S.S. Cole took place in 2000, before the AUMF even existed.  According to the New York Times, the government intends to argue that the attack was a war crime because a state of armed conflict existed between al Qaeda and the U.S. since 1996, when Osama bin Laden “declared war” on the U.S.  I put that expression in quotes, of course, because non-state actors can’t declare war on anyone in a legally operative way; such declarations only exist in international armed conflict.  Whether al Qaeda saw itself at war with the U.S. in 1996 is irrelevant; war crimes can only be committed in armed conflict, and the existence of an armed conflict is determined objectively, by reference to the organization of the parties and the duration and intensity of the fighting.  (See this excellent article by Andreas Paulus and Mindia Vahakmadze.)  And it is impossible to argue that sufficiently protracted and intense conflict existed between al Qaeda and the U.S. in 2000.

UPDATE: Nick Baumann points out at Mother Jones that even if there was an armed conflict between the U.S. and al Qaeda in 2000 (which he rightly rejects), Nashiri would still not have committed a war crime by attacking the U.S.S. Cole, because a warship is a legitimate target during an armed conflict.  To be sure, Nashiri was not a privileged combatant, so he could still be prosecuted in federal court for the attack.  But he would not be triable before a military commission, because the attack itself did not violate the laws of war.