By Professor David Glazier
The Department of Defense announced the approval of military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, who it alleges to have masterminded the USS Cole bombing, on September 28, 2011, clearing the way for his arraignment and subsequent trial in a Guantánamo courtroom. 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 that could put American military personnel at greater future risk. The Supreme Court has determined that military commission jurisdiction is strictly limited to conduct taking place during the period of an armed conflict. This is easily 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, are permitted in naval warfare, allowing al-Nashiri to raise defenses wholly irrelevant in a federal terrorism prosecution, which would fairly hold that any pre-9/11act of violence against Americans, military or civilian, was a serious crime regardless of how conducted. Moreover, such a precedent would logically allow future terrorist groups to announce they were at war with the United States and lawfully kill our service personnel if they adopted means compliant with the law of armed conflict.
There are also very serious issues with the charges themselves that could well result in any convictions being overturned on appeal. 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 now constitutes a war crime threatens to make a justifiably proud military force 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, as was true of the Cole and The Sullivans crews, who understood that they were making peacetime refueling stops and who were operated under U.S. peacetime rules of engagement and antiterrorism instructions, not the law of armed conflict. The United States has consistently treated the Cole as a peacetime 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 ex post facto reclassification of the bombing as part of an armed conflict.
A "terrorism" charge is even more facially nonsensical based on the required nexus to an armed conflict. It 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 armed conflict is all about. 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.
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, and 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 the 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 public release than proved in a court of law.
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 mistreatment is a bar to civilian conviction. While it is, of course, true (and rightfully so) that 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 preferable.
History tells us that military trials perceived as unjust, such as those of two British citizens during the Seminole Wars, almost 400 Dakota Sioux following an 1862 uprising, the Lincoln assassination conspirators, and Germans believed responsible for the World War II Malmédy massacre, can redound to America's detriment. In the conflict with al Qaeda, which possesses many classic counter-insurgency attributes, this will predictably translate into the perceived martyring of the defendant and enhanced terrorist fundraising and recruiting, as well as the establishment of precedent that could be used to legalize future attacks on U.S. military forces.