The Al Nashiri case before the Guantanamo military commission is currently stuck in a quagmire over the bombing of the oil tanker MV Limburg on Oct. 6, 2002, which Al Nashiri is alleged to be complicit in. Before trial, the defendant, Al Nashiri, moved to dismiss the charges related to the MV Limburg (which is just one of many charges in the case) on the grounds that the government does not have jurisdiction over the MV Limburg bombing since it was not part of the armed conflict between the United States and al-Qaeda. The MV Limburg was a French vessel (not American).
Instead of interpreting the motion as dealing with Congress’ jurisdiction to prescribe (as the defense appeared to suggest), the judge interpreted the motion as one attacking the jurisdiction of the military commission to hear the case because the attack was not connected to the hostilities between the U.S. and al-Qaeda. Since the government had not presented evidence that the attack was connected to those hostilities, the judge eventually dismissed the charges.
The U.S. government is appealing the dismissal of the MV Limburg charges, and it filed its appeal brief on September 29, 2014 to the U.S. Court of Military Commission Review. The government’s position is that the existence of hostilities (or a connection between the attack and the hostilities) is a question that goes to the merits, not jurisdiction, and therefore the government should be permitted to proceed to trial where it will demonstrate this connection. The connection between the hostilities and the attack is a merits question because the existence of hostilities is a predicate element of any war crime. No war, no war crime.
So it is clearly a question that goes to the merits that should be decided at trial. On this point the government is clearly correct. However, Al Nashiri is also correct that the same fact — the connection to the hostilities — is an essential ingredient of the court’s jurisdiction under the law of war. The military commission does not, and should not, have jurisdiction over crimes unrelated or unconnected to the underlying military conflict. So it is a jurisdictional question too. It is both at the same time. What the court really needs to figure out is how to treat a fact that is both jurisdictional and an element of the offense (merits) at the same time. Should it be proved at trial or does the party need to show the court, prior to trial, that it has jurisdiction over the case?
As should be clear by now, this basic problem is not unique to a military commission. It happens any time that the same factual element goes to jurisdiction and merits in the very same case. A court confronted with the twin nature of such a fact needs to determine whether to treat it as it does other jurisdictional elements (determine prior to trial) or as a merits question (determine at the conclusion of the trial).
The very best article on this subject, by Kevin Clermont, is simply titled Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006). As Clermont convincingly explains, judges faced with this quandary should adopt a bifurcated approach with two standards of decision, one for the jurisdictional analysis and a second for the merits analysis:
All courts, then, should apply the prima facie standard of proof whenever a jurisdictional fact overlaps the merits. “Overlapping” here means that a factual finding in establishing … jurisdiction would also go toward proving the merits of the claim, with “merits” broadly meaning those issues that arise other than in determining the forum’s authority.
So, at the pre-trial phase, the court should require that the party asserting jurisdiction (which in Al Nashiri’s case would be the government prosecutors) should make a prima facie demonstration of the jurisdictional fact, and then at trial should be required to demonstrate the same fact under the higher standard, which in a civil case would be preponderance of the evidence or in a criminal case beyond a reasonable doubt.
Most importantly, this basic scheme applies regardless of whether one interprets Al Nashiri’s motion as going to personal jurisdiction or subject matter jurisdiction. It does not matter which one we use to classify the motion. If there is a fact that is both jurisdictional and merits, the government must demonstrate it pre-trial with a prima facie case, and then at trial under the regular standard for the merits decision. Here is how Clermont explains the basic point:
From a morass of confused cases on a procedural point of significance, there emerges a startlingly clear rule that covers jurisdictional fact, and much more. On any factual element or legal question of forum authority, from subject-matter jurisdiction to venue whenever properly challenged, the proponent of forum authority must make the usual showing of more-likely-than-not, subject to this exception: if that element or question overlaps the merits of the claim, the proponent need provide only prima facie proof to establish the forum’s authority. Depending on the particular threshold issue’s importance, “prima facie” might mean any of the standards below the more-likely-than-not standard, namely, slightest possibility, reasonable possibility, substantial possibility, or equipoise. That lower standard will allow the judge to decide efficiently but definitively whether the forum has authority to decide the merits–doing so without entailing or foreclosing any decision on the merits, a decision to which a higher standard would apply.
Applying this basic scheme to Al Nashiri’s case, here is the correct result for the U.S. Court of Military Commission Review to consider. The government is indeed required to make a factual showing of the hostilities connection prior to trial, though it need not be burdened with demonstrating it under the standard applicable at the merits phase. Instead, the government was only required to make a prima facie showing of this jurisdictional fact. That being said, the government would be wrong if it claims that it bears no burden at all until trial — that clearly is an exaggeration. The task for the appeals court is to recognize the appropriate standard for such jurisdictional facts — the prima facie showing — and then decide if the government met that burden. If the lower judge’s assessment is correct that the government made no showing whatsoever on the hostilities question, then the appeals court should conclude that the charges were properly dismissed. If, on the other hand, the appeals court concludes that the government did make this prima facie case, and can cite to particular facts in the record that are sufficient to meet the prima facie showing, then the charges should be reinstated.
One final point. The government brief seems to assert that the government’s prima facie showing is already met because Al Nashiri never contested his status as an alien unprivileged enemy belligerent (AUEB). But this goes to personal jurisdiction, not subject matter jurisdiction. The government then goes on to use personal jurisdiction to bootstrap its way into subject matter jurisdiction under the theory that subject matter jurisdiction is automatically established once the status of the individual is established. This might be the way that it works for a court martial under the UCMJ (where the status of the individual service-member is sufficient to trigger the authority of the military court), but this conflation of personal and subject matter jurisdiction is not appropriate for military commission cases trying enemy belligerents.
Unlike domestic court martial proceedings which retain plenary authority to prosecute all UCMJ offenses against service-members, military commission cases are jurisdictionally limited to offenses arising from the conflict between the parties — the very conflict that grounds the genesis of the military commission under international law. Simply put, military commissions cannot use the existence of an armed conflict as a pretext to assert plenary authority over all criminal behavior committed by the individuals who lawfully fall under their personal jurisdiction.