Yesterday, I spent a very enjoyable hour with Bob Loeb and Michel Paradis recording this week's Lawfare Podcast, which is a discussion of the D.C. Circuit's decision this week in Al Nashiri II. I won't go into the details of the conversation, which will be on our podcast server today and on the site tomorrow, but I wanted to flag for readers—and for Congress—an important area of agreement between by two interlocutors. Paradis, for those who don't recognize his name, represents Al Nashiri, the accused mastermind of the U.S.S. Cole attack. Loeb, meanwhile, is an appellate lawyer who, until relatively recently, represented the government in lots of Guantanamo litigations as part of the civil appellate staff at the Justice Department. Loeb, who writes regularly for Lawfare, wrote this week in sympathy for the D.C. Circuit majority, which had ruled against Michel's client: "I believe the Court got it right in refusing to intervene now when Congress has provided for Article III review at a later point," he said. So Loeb and Paradis are, in short, not in agreement with respect to what the court did in Nashiri II.
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Yet there is a considerable measure of agreement—which I share, I should add—about what a proper resolution of this problem looks like. And it's a point on which Congress really ought to take note.
The basic problem here is that there's a huge elephant in the room as the Al Nashiri case goes forward: does the military commission have jurisidiction over his alleged offenses in the first place? The D.C. Circuit and nearly all commentators agree that this is a substantial question. I personally think it's a very hard one. But since the court ruled that it cannot consider this question until after a conviction, we are now set to go through years of additional litigation perhaps only then to find out that the court lacked jurisdiction over the case to begin with. If that happens, we'll have to do the whole case over in federal court, if Al Nashiri is to be criminally tried at all. That seems like a terrible waste of resources and of everyone's time and energy.
But because of the court's ruling this week, there's no way to short-circuit this process under current law. Though Al Nashiri is facing a capital indictment in the Southern District of New York, Congress has forbidden the executive branch to bring any Guantanamo detainees to the United States for trial. So right now, anyway, the only venue in which Al Nashiri can be tried is a venue which may not have jurisdiction to try him and whose jurisdiction we can't learn for years.
So I asked both of my guests: Isn't the right answer for Congress to lift the transfer restrictions now and let the executive branch make a hard-headed decision about where it prefers to proceed?
Paradis, unsurprisingly, had no objection to his client's facing trial in federal court, as opposed to in the military commission he had sought to enjoin. Perhaps more surprisingly, here's what Loeb said: "I think everybody, in the administration certainly, would want to be having these as criminal trials in New York or in the Eastern District of Virginia. And early on in the Obama term, that ability was taken away by statute. . . . They're being forced to move ahead with these in Guantanamo, which has been difficult for both sides." When I asked whether Loeb was confident that Al Nashiri—whose case even the Obama administration initially preferred to try in a military commission—would today be in New York or Virginia if the administration had the option, he responded: "I think so. I think the issue back then was more just dealing with the classified information. And we're now ten years later and a lot more information has been declassified and there's also more experience working with counsel with classified information. . . ."
I want to emphasize that these were the comments of someone who has litigated a great many Guantanamo cases on behalf of the government and who believes the court got this decision right as a matter of law.
So to everyone in Congress who thinks he's being "tough" by backing military commissions at Guantanamo, let me unpack this and explain what you're really doing. You are forcing the government against the better judgment of what Loeb describes as "everybody," to try a man in a venue that may not have the authority to try him. You are doing so at grave risk of losing the conviction and having to revert years later to the very trial in federal court you now deride as insufficiently tough. And you are forcing the government to proceed with no means of ascertaining before trial the scope of the risk it is incurring in doing so. And so I ask: Does this make sense?
I have defended military commissions. I am not opposed to them in principle. And if the executive branch of its own free will prefers to proceed in a military commission against Al Nashiri, as it once chose to do, I will defend its authority to do so. But forcing it do so strikes me as pretty dumb, particularly when the results are so uncertain, the benefits so hard to identify, and the costs are potentially so great.