The morning's proceedings begin with a return to Al-Nashiri's alleged role in the attack on the French oil tanker the M/V Limburg in Yemen in October 2002. In AE 168, CDR Brian Mizer, counsel for Al-Nashiri, seeks the dismissal of charges pertaining to the attack on the Limburg on the grounds that the commission lacks jurisdiction under international law. These are charges seven through nine on the charge sheet for those keeping track at home.
Mizer opts not to rehash earlier arguments about Hamdan II and incorporation of international laws of war into the court's jurisdiction and jumps immediately to the Military Commissions Act, particularly 10 U.S.C. § 948a(7)(A), which provides the military commissions jurisdiction over unprivileged enemy combatants who have engaged in hostilities against the U.S. or its coalition partners. Noting that the attack on the Limburg took place in Yemeni waters, against a French ship carrying Iranian oil under a Malaysian contract, and indirectly killed a Bulgarian national, Mizer states that the U.S. does not have jurisdiction over claimed related to the attack. In response to a question from Judge Pohl, Mizer further argues out that France did not believe it was a "coalition partner" involved in an armed conflict in Yemen in 2002, pointing out that the congressional cafeteria had renamed french fries "freedom fries" at the time.
Mizer also argues that the case cannot fall under international law's protective principle, which he says only provides jurisdiction, where reasonable, over acts that "have an effect on state security or the functioning of the government," neither of which is the case here. To find otherwise, says Mizer, would be to create a form of "universal jurisdiction."
Brig. Gen. Mark Martins, the chief prosecutor, disagrees with Mizer's framing of the issue as one of international law, noting that as a matter of statute, there is a "clear grant of jurisdiction based on historical law of armed conflict bases to try unprivileged enemy belligerents who are noncitizens for the offenses that are punishable by a military commission." He points out that Section 948a(7) grants jurisdiction not only over unprivileged enemy belligerents who have engaged in hostilities against the U.S. or its coalition partners, but also over individuals who were a part of al Qaeda at the time of the alleged offense. Because this attack allegedly took place at the hands of the same al Qaeda cells and in the same general waters as attacks on the U.S.S. Cole and The Sullivans, in an effort to "disrupt the U.S. and world economies" and increase the price of oil, Martins argues that the court has jurisdiction over the Limburg attack. Further, while not relying on France's role as a "coalition partner" to establish jurisdiction under Section 948a(7), Martins does state that the government considers France a coalition partner because of its military efforts alongside U.S. forces in the fight against al Qaeda, even if the two countries did not agree on operations in Iraq. Although none of this has yet been proven, Martins argues that the court should allow the government to prove these at trial beyond a reasonable doubt. In closing, Martins strongly urges the court to focus primarily on the statutory argument, rather than the protective principle, and only refers to that principle by analogy because this case applies the law of armed conflict.
On rebuttal, Mizer points out that the prosecution never raised the other provisions of Section 948a(7) in the pleadings and requests an opportunity to supplement the defense's pleading to address this argument, stating that "there are serious legal issues raised by mere membership in al Qaeda in affording this court jurisdiction" under the First Amendment. Judge Pohl pushes Mizer to clarify whether jurisdiction in this case relies on mere membership in al Qaeda, or membership plus actions, but Mizer points out that providing jurisdiction under Section 948a(7)(C) would, according to the text, require only membership with nothing else. Mizer also rejects classifying France as a "coalition partner" in the context of Yemen in 2002, which was separate and distinct from the fighting in Afghanistan. Finally, Mizer suggests that the court hold an evidentiary hearing to determine whether the prosecution's claims of effects of this attack are borne out by the facts.
Finally, Martins returns to clarify that the prosecution did claim in its initial brief that Al-Nashiri's alleged membership in al Qaeda should have notified him of the possibility that he would be haled into a court in the U.S. Martins also dismisses First Amendment problems because the accused must not only be members of al Qaeda, but also take some action punishable under the statute.
Judge Pohl asks the defense to file a new pleading by March 7 on the issue of membership in al Qaeda as a basis for jurisdiction, provides the prosecution with two weeks from that date to respond, and moves on to the next motion.