[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with the fact that charges had been filed by the prosecutor, referred to trial by the Convening Authority, and not withdrawn by the Secretary of Defense or the President was sufficient to establish the existence of an armed conflict at the time of the offenses for jurisdictional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.