Saturday, July 9, 2016

Lederman & Vladeck on the latest al-Nashiri decision

Military commission mavens Marty Lederman and Steve Vladeck have an excellent post on Just Security about the latest decision of the U.S. Court of Military Commission Review (per Scott Silliman, Dep. C.J.). Excerpt:
The court’s opinion is quite prolix and somewhat difficult to parse. Two things about it stand out, however: 
First, the court apparently held (p. 10) that whether the Limburg bombing occurred during an armed conflict is not a question of subject-matter jurisdiction: “[A]ppellee incorrectly couched his argument in jurisdictional terms.” (See also the court’s section heading on page 7: “Subject-Matter Jurisdiction Not Implicated.”) The court did not offer much of a rationale for this conclusion, however. The entire basis for its holding appears to be the fact that the armed conflict question is not mentioned in the section of the MCA titled “Jurisdiction of military commissions,” 10 U.S.C. § 948d. Another MCA provision, however, 10 U.S.C. § 950p(c), states plainly — and correctly — that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” (As Marty explained in his earlier post, the MCA in turn defines “hostilities” as an armed conflict “subject to the laws of war.”) Subsection 950p(c) is, thus, like § 948d, a provision establishing a statutory precondition for the commission’s exercise of subject-matter jurisdiction. Indeed, even if the MCA itself did not require that the charged conduct was part of an armed conflict that violated the laws of war, the Constitution probably imposes such a requirement for military commission trials, as Steve has argued at length. The CMCR’s decision about subject-matter jurisdiction, therefore, is almost certainly incorrect. 
Second, the court then proceeded to hold (p. 25) that even if the armed conflict question were one of subject-matter jurisdiction, it is also an element of the charged offenses, and therefore it ought to [must?] be resolved at trial, rather than before trial: “[B]ecause this pretrial motion raises factual questions that are interwoven with the issues on the merits, resolution of those factual questions must be deferred until trial.” (The court cryptically added that the military judge could decide the “factual” question before trial, on a motion for dismissal, under certain “circumstances” that are not clearly delineated but that appear to include a possible party stipulation to the facts in question, or the judge’s acceptance of “a full proffer to determine the nexus issue in a pretrial hearing.”)
Unfortunately, the CMCR did not come to terms with the real issue presented by the Limburg charges (in part because the parties’ briefing was not very clear on it) — which is a question of law, not fact. . . .
The authors' bottom line: "All of which is to say that the al-Nashiri trial will not begin any time soon…"

1 comment:

  1. From reading Silliman's opinion [BTW: Colonel, USAF JAGC (ret)], 3 things jump out:

    1) Solorio's jurisdictional attack was done by pre-trial motion, as was done here;

    2) Whether the Specifications at issue in al-Nashari, fail to state an offense IF he was not at the time an "alien unlawful enemy belligerent," which as the Opinion notes in more than one place, can be raised at any time; and

    3) An Ex Post Facto claim for acts occurring in 2002, for violating the Military Commissions Act, which was not enacted until 2006 and revised in 2009.

    I haven't followed this case closely enough to know whether or not the above-issues have been litigated or are pending litigation, but as they say, "this case is going nowhere fast." There's US caselaw on charging similar incidents as "Piracy" under 18 USC 1651, in federal District Courts.

    Stay tuned.


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