Excerpt:
Domestic and international law have confined military commission jurisdiction to acts taking place during, and directly related to, an ongoing armed conflict. Acts subject to military commission jurisdiction constitute serious violations of the law of war which have recognized penal sanctions associated with their violations, commonly called “war crimes.”
Abd al-Rahim Hussein Al Nashiri ("Nashiri") is facing military commission trial at the U.S. Naval Station at Guantánamo Bay for three incidents that transpired in or near Yemen between 2000 and 2002: the attempted bombing of the USS The Sullivans on January 3, 2000; and the completed bombings of the USS Cole and the French tanker M/V Limburg on October 12, 2000 and October 6, 2002, respectively.
The military commission seeks to try Nashiri for nine charges defined by the Military Commissions Act of 2009, Pub. L. 111-84 §§ 1801-1807 (2009) ("2009 Act") (codified at 10 U.S.C. §§ 948a, et seq.). While charges based on the attempted attack on the USS The Sullivans and the completed attacks on the USS Cole and French tanker M/V Limburg qualify for federal criminal prosecution by Article III courts, these acts fall outside the recognized scope of an armed conflict, a necessary prerequisite for law of war military commission jurisdiction. As detailed below, the United States was not involved in armed conflict during the timeframe of the earlier incidents, nor does the post-9/11 attack on the Limburg, a French tanker under charter to a Malaysian entity, fall within the scope of any armed conflict. Charges based on these incidents thus cannot constitute “war crimes” and fall outside both the constitutional jurisdiction of the military commissions and the statutory ambit of the 2009 Act which limits the commissions to trying offenses “committed in the context of and associated with hostilities.”
Read the full brief below.
Abd al-Rahim Hussein Al Nashiri ("Nashiri") is facing military commission trial at the U.S. Naval Station at Guantánamo Bay for three incidents that transpired in or near Yemen between 2000 and 2002: the attempted bombing of the USS The Sullivans on January 3, 2000; and the completed bombings of the USS Cole and the French tanker M/V Limburg on October 12, 2000 and October 6, 2002, respectively.
The military commission seeks to try Nashiri for nine charges defined by the Military Commissions Act of 2009, Pub. L. 111-84 §§ 1801-1807 (2009) ("2009 Act") (codified at 10 U.S.C. §§ 948a, et seq.). While charges based on the attempted attack on the USS The Sullivans and the completed attacks on the USS Cole and French tanker M/V Limburg qualify for federal criminal prosecution by Article III courts, these acts fall outside the recognized scope of an armed conflict, a necessary prerequisite for law of war military commission jurisdiction. As detailed below, the United States was not involved in armed conflict during the timeframe of the earlier incidents, nor does the post-9/11 attack on the Limburg, a French tanker under charter to a Malaysian entity, fall within the scope of any armed conflict. Charges based on these incidents thus cannot constitute “war crimes” and fall outside both the constitutional jurisdiction of the military commissions and the statutory ambit of the 2009 Act which limits the commissions to trying offenses “committed in the context of and associated with hostilities.”
Read the full brief below.
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