Guest Post: Al Nashiri and the Existence of an Armed Conflict

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense.]

I wanted to weigh in on the debate between my esteemed colleagues Steve Vladeck, Peter Margulies and Kevin Jon Heller at Just Security, Lawfare and Opinio Juris, on the issue of the existence of an armed conflict at the time of Mr. Al Nashiri’s alleged offenses and the critical questions of who should decide this issue, and when.  Peter argues that this is a question of fact best decided by the panel of military officers who will serve as jurors in the military commissions.  Al Nashiri’s defense team asserts that this is a question of law and they are asking the D.C. District Court to rule that the attack on the USS Cole in Yemen in 2000 was not part of an armed conflict.  As there was no armed conflict ongoing, so goes their argument, the law of armed conflict does not apply and his actions could not be considered a violation of the law of war; further, because military commissions are courts of limited jurisdiction with power only to try and punish violations of the law of war, the federal court should enjoin any further proceedings at Guantanamo.  It should be noted that Al Nashiri has already raised this matter in a pretrial motion in the military commission, seeking to have the charges dismissed by the military judge on the grounds that the commission lacks jurisdiction over his alleged offenses because they did not take place in the context of an armed conflict.  Judge Pohl declined to dismiss the charges, characterizing the issue as primarily a question of fact for the jury (Ruling AE104F).  Judge Pohl also acknowledged that the question was a “jurisdictional question subject to purely legal determination” but claimed that he must make this determination using a “wide deference” standard.”  Applying this standard, he found that the Congressional authorization to try offenses that occurred prior to 9/11, coupled with the fact that charges had been filed by the prosecutor, referred to trial by the Convening Authority, and not withdrawn by the Secretary of Defense or the President was sufficient to establish the existence of an armed conflict at the time of the offenses for jurisdictional purposes.  This determination is essentially tantamount to a finding that he considered there to be sufficient evidence to submit the question to a jury.  However, he left open the possibility of reconsideration at a later time, presumably in the form of a motion for a directed verdict at the close of the prosecution’s case.

In so ruling, Judge Pohl was following the precedent set in the two other Guantanamo military commissions to have gone to trial: U.S. v. Salim Hamdan, and U.S. v. Ali Hamza al Bahlul (in which I served as detailed defense counsel, although I did not put on any defense at Mr. al Bahlul’s request).   Both Judge Allred in Hamdan and Judge Gregory in Al Bahlul instructed the members that the existence of an armed conflict was an element of the offense that must be proven by the government beyond a reasonable doubt. This was consistent with the Manual for Military Commissions, which requires as an element that offenses occurred “in the context of an armed conflict.”  In both cases, the judge further instructed the jurors on factors to consider in determining whether a state of armed conflict existed and in both cases the military jury found that the offenses of which they convicted the accused did occur in the context of an armed conflict.  Here are the verbatim instructions given to the jurors in U.S. v. Hamdan:

“With respect to each of the ten specifications before you, the government must prove beyond a reasonable doubt that the actions of the accused took place in the context of and that they were associated with armed conflict. In determining whether an armed conflict existed between the United States and al Qaeda and when it began, you should consider the length, duration, and intensity of hostilities between the parties, whether there was protracted armed violence between governmental authorities and organized armed groups, whether and when the United States decided to employ the combat capabilities of its armed forces to meet the al Qaeda threat, the number of persons killed or wounded on each side, the amount of property damage on each side, statements of the leaders of both sides indicating their perceptions regarding the existence of an armed conflict, including the presence or absence of a declaration to that effect, and any other facts or circumstances you consider relevant to determining the existence of armed conflict.

The parties may argue the existence of other facts and circumstances from which you might reach your determination regarding this issue. In determining whether the acts of the accused took place in the context of and were associated with an armed conflict, you should consider whether the acts of the accused occurred during the period of an armed conflict as defined above, whether they were performed while the accused acted on behalf of or under the authority of a party to the armed conflict, and whether they constituted or were closely and substantially related to hostilities occurring during the armed conflict and other facts and circumstances you consider relevant to this issue.

Counsel may address this matter during their closing arguments, and may suggest other factors for your consideration. Conduct of the accused that occurs at a distance from the area of conflict can still be in the context of and associated with armed conflict, as long as it was closely and substantially related to the hostilities that comprised the conflict.”  U.S. v. Hamdan, official transcript at pp. 3752-53.

An almost identical instruction was given in U.S. v. al Bahlul:  See, Official Transcript, U.S. v. al Bahlul, pp. 844-45.

Hamdan’s commission found him guilty of material support to terrorism and Mr. al Bahlul’s commission found him guilty of material support to terrorism, conspiracy and solicitation. These findings imply that the jurors found that there was an armed conflict in existence and that the acts took place in the context of that conflict.   However, there is an important distinction between the charges in those two cases and the charges faced by Al Nashiri.  The charge of which Hamdan was convicted alleged that his conduct took place “in Afghanistan and other countries, from in or about February 1996 to on or about November 24, 2001.”  The charges of which al Bahlul was convicted were alleged to have taken place “at various locations in Afghanistan and elsewhere from in or about February 1999 through in or about December 2001.”    Accordingly, the commission could have found them guilty based solely on conduct that occurred in Afghanistan after September 11, 2001, or even after the AUMF was passed a few days later, or even after the U.S. invaded Afghanistan a few weeks later.  There is no disputing that the U.S. was engaged with an armed conflict with al Qaida in Afghanistan in November and December 2001.   Mr. Al Nashiri’s case is thus the first case in which the issue of the existence of an armed conflict between the U.S. and al Qaida prior to 9/11 and outside Afghanistan is squarely presented.

At Lawfare, Peter Margulies writes approvingly of submitting this question to a military commission, commenting:

“a specialized military tribunal may have insights that would be especially helpful to a reviewing court on the intensity and duration of violence that establish the existence of an armed conflict. Soldiers fight our wars; who better to take an initial cut at pondering what experiences on the ground distinguish war from peace?”

The problem with this argument is not that soldiers might not have insights on this question, but that such insights will not be provided to any reviewing court.  Military commissions provide general verdicts: guilty or not guilty.   So, whatever the jurors’ thought processes might be, we will never have access to them. The only thing the reviewing court will have to review is the jury instruction, which undoubtedly will be very similar to the one given in Hamdan and al Bahlul.  If Professor Margulies was referring to the insights of Judge Pohl, an Army Colonel, as noted above, he has already ruled on this issue, so the District Court already has the benefit of his views.  Not only do I not see any benefit in giving this issue to the jury, but I believe having the jury make this determination is potentially harmful to the fairness of the process.

My first concern relates to the likely composition of the jury.  The members of the commission are likely to be senior military officers, primarily in the rank of O-5 and O-6.  All of them will likely have been on active duty continuously since prior to 2000.  Thus, they will not come into the military commission without an opinion on the issue of whether the United States was in an ongoing armed conflict with Al Qaeda in 2000.  As one who served on active duty in the Air Force from 1995 to 2005, for example, I have a very strong belief that we were not in an armed conflict with Al Qaeda in 2000, because, if we were, I surely would have heard something about it, and I never did. There are likely to be other commission members who share this belief.  However, if any member expresses such a view during voir dire, he or she could be subject to challenge for cause by the prosecution as having a firm opinion on an issue that is to be determined during the trial.  The defense, of course, would want to keep such a juror on the panel.  But in order to rehabilitate such a juror, the defense would have to get the juror to agree to keep an open mind on the existence of whether there was an armed conflict in Yemen in 2000, a position directly contrary to the position that the defense will be advancing during the trial.  At best, this puts the defense in an awkward position.  At worst, it will result in a jury that is skewed in favor of the prosecution.

Another problem with leaving this issue to the factfinder is the possibility of inconsistent verdicts.  A jury in one case could conceivably find that we were in a state of armed conflict with Al Qaeda in Yemen in 2000 and convict, and another military commission jury could find that we weren’t, and acquit a similarly situated defendant.  Of course, because military commissions provide general verdicts, we would not necessarily know that this was the reason for the acquittal, but there is something very troubling about the possibility that guilt or innocence hangs on the jury’s interpretation of history, and not merely the provable conduct of the accused.

Although I have great confidence in the fairness of military juries and their fact-finding abilities, I think we are asking too much of a military jury to leave this issue up to them.  In essence, assuming that there is strong evidence of Al Nashiri’s involvement in the USS Cole bombing, the defense would have to argue to the jury something like this:

“Even if you are convinced beyond a reasonable doubt that the accused was responsible for this cowardly heinous attack which resulted in the deaths of 17 innocent U.S. sailors, nevertheless you must acquit him because this did not take place in the context of a non-international armed conflict but rather was simply a peacetime terrorist attack by a committed member of Al Qaida. The fact that we have been in a continuous global war with this organization since 9/11 is completely irrelevant because we were not technically in an armed conflict in Yemen in 2000.”

However strong their commitment to the rule of law might be, it is difficult for me to fathom a jury comprised of senior U.S. military officers acquitting a proven al Qaeda terrorist on such a legal “technicality.” And, in my view it is not reasonable to place a jury of military officers of sworn loyalty to the United States in a position where they would have to make such a choice.  The existence of an armed conflict is a matter of international law and is therefore best determined by experts in the law.  The D.C. District Court should not hesitate to take up the issue.