Glazier: More on Why the Al-Nashiri Charges Are Flawed

The following is a guest-post by David Glazier, Associate Professor of Law at Loyola Law School in Los Angeles.  Our thanks to him for providing it.

As Kevin noted on Wednesday, the Department of Defense approved military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, alleged USS Cole bombing mastermind, clearing the way for his arraignment and subsequent trial.  Al Nashiri will face nine separate charges and a possible death sentence.  Having been in command of a U.S. Navy guided missile frigate the day the Cole was struck, I am particularly eager to see justice done for this act of terrorism.  But having spent most of the decade since 9/11 studying the law of war in general and military commissions in particular, I firmly believe that these are the wrong charges before the wrong court.

A military conviction will both require a strained application of the law of war and establish dangerous legal precedent.  The Supreme Court has held that military commission jurisdiction is strictly limited to conduct taking place during an armed conflict.  Although some commentators continue to disagree, U.S. courts are clear that this is satisfied by acts on and after September 11, 2001 thanks to the congressionally enacted Authorization for the Use of Military Force (AUMF).  But to hold that the October 2000 Cole bombing, as well as the earlier failed attack on the USS The Sullivans, took place during an armed conflict requires conceding to al Qaeda the nation-state’s prerogative to declare hostilities.  Since a warship is a lawful object of attack, we can then object only to the means used, not to the attack itself.  Ruses, including the use of false flags to approach an enemy, are permitted in naval warfare, allowing al-Nashiri to raise defenses wholly irrelevant in a federal terrorism prosecution, which would hold that any pre-9/11violence against the American military was a serious crime regardless of how conducted.  Moreover, such a precedent could logically allow future terrorist groups to announce they were at war with the United States and lawfully kill our service personnel if they just adopted means conforming to the law of armed conflict.

There are also very serious issues with the specific charges.  The core justification for the multiple charges based on the Cole attack is that they involved perfidy by using a civilian boat, dressing in civilian clothing, and “waving at the crewmembers onboard.”  Nothing in the law of war requires naval forces, as distinct from land and air forces, to wear uniforms, while the prosecution’s assertion that waving to a U.S. Navy ship can constitute a war crime threatens to make our military into the butt of jokes around the world.  But the biggest problem with the charge is that the crime of perfidy requires inducing the adversary to falsely believe that the attacker is entitled to special protection under the law of war.  It is logically impossible to do this to persons who do not know they are at war.  The Cole crew understood that they were making a peacetime refueling stop and operated under U.S. standing rules of engagement and antiterrorism instructions, not the law of armed conflict.  The United States has consistently treated the Cole as a non-wartime matter, launching only FBI agents in response, denying the crew awards for combat valor, and assessing the performance of captain and crew against peacetime standards, all of which the defense will fairly argue should bar unilateral ex post facto reclassification of the bombing as part of an armed conflict.  (The crew of The Sullivans never even knew an attack had been attempted.)

A “terrorism” charge is even more facially nonsensical based on the required nexus to an armed conflict for commission jurisdiction.  The charge sheet says that the bombers “engage[d] in an act that evinced a wanton disregard for human life” in order to “influence and affect the conduct of the United States government by intimidation and coercion.”  But that, in a nutshell, is the essence of what constitutes armed conflict!  War, as the Prussian strategist Carl von Clausewitz famously put it, “is the continuation of politics by other means.”   An act of violence conducted during wartime that is not intended to advance the purposes of winning the war; that is, to compel the enemy to submit to the desired ends of the other party, is unlawful gratuitous violence, that is to say, an actual war crime.

The government also presses a conspiracy charge despite the fact that virtually all serious law of war scholars agree it is not a recognized war crime; four Supreme Court justices went on record with this view in Hamdan v. Rumsfeld.  (The fifth vote to halt the trial came from Justice Kennedy, who felt that the conspiracy issue should be deferred until a completed trial record was before the Court.  Ironically a military commission ultimately acquitted Hamdan of that charge.)  Again, these would not be issues in a regular federal prosecution where both terrorism offenses and conspiracy are well established crimes, and the government would only need to factually establish a link between al-Nashiri and the attacks in question to secure a conviction.

The final three charges relate to an October 2002 attack on a French-flagged, civilian tanker, the M/V Limburg, which was under charter to a Malaysian firm when it was struck off the coast of Yemen, killing one Bulgarian crewman.  While this attack poses no temporal issue, coming more than a year after 9/11, it is still going to be necessary for the government to demonstrate that the attack was somehow part of the conflict between al Qaeda and the United States.  This is something much easier said in a press release than proved in a court of law, as Kevin previously addressed in more detail.

Al Nashiri is widely reported to have been held in CIA custody and subjected to interrogation methods, including death threats, which clearly amount to torture.  But as the federal prosecution of Ahmed Ghailani showed, neither prolonged preventative detention nor prior mistreatment is a bar to civilian conviction.  While federal courts will not admit evidence obtained through coercive interrogations, the Military Commissions Act of 2009 contains a categorical prohibition against doing so as well.  So there is no legitimate reason to favor a military trial in this case as compared to a host of legal reasons why a federal trial is vastly preferable.