Prof. Vladeck's assessment of Al-Nashiri II

Prof. Steve Vladeck

Global Military Justice Reform contributor (and University of Texas Law School professor) Steve Vladeck has posted this insightful Lawfare take on the D.C. Circuit's recent decision in Al-Nashiri II. His bottom line:

At the end of the day, this is the aspect of Al-Nashiri II that I find the most baffling. Whatever the answer to the merits of Al-Nashiri's jurisdictional challenge actually is, isn't it better for the government, and not just the defendant, to have that question (whether the commissions can try pre-9/11 offenses such as the [USS] Cole bombing) resolved now? After all, if the government is right on the merits (that the commissions can try certain pre-9/11 offenses, such as the Cole bombing), then a ruling to that effect now would help to create ex ante legitimacy for everything that follows, and the case against Al-Nashiri can be tried against a backdrop of certainty over the military commission's jurisdiction. (To say nothing of the broader precedent it would set on the question of when the conflict with al Qaeda "began.") Indeed, for all of the criticisms of the commissions, it would be quite an arrow in the governnent's quiver if the D.C. Circuit were to hold that its jurisdictional theory vis-a-vis Al-Nashiri is consistent with both the Military Commissions Act and the Constitution.

And if the government is wrong on the merits, and the commissions lack jurisdiction to try Al-Nashiri for the Cole bombing, what the hell is the point of spending millions of dollars and tens of thousands of man-hours on a capital trial and potential death sentence that will have to be vacated on appeal? 

In sum, then, abstention in Al-Nashiri II doesn't make any sense doctrinally; depends more fundamentally upon a view of the commissions' track record that I just don't recognize; and does no favors whatsoever to the government, which will now (or, at least, some day) have to try Al-Nashiri under a lingering cloud of jurisdictional uncertainty (and, thus, illegitimacy) -- and with the specter of a potential appellate reversal for lack of jurisdiction looming over the entire proceeding. For folks who'd like some resolution of the commissions' legitimacy one way or the other, this is simply the wrong result. One wonders if a similar non-result is in the offing in al Bahlul, in which the ruling of the en banc D.C. Circuit on whether the commissions can try offenses other than international war crimes is due any day now.

Given Prof. Vladeck's analysis, it certainly seems that the government's interests would have been far better served by conceding that the court of appeals should reach and decide the merits. Why didn't it, aside from litigative momentum?