Military Commissions

Brief Thoughts on Al-Nashiri

By Robert Loeb
Wednesday, August 31, 2016, 11:33 AM

As Steve Vladeck and Peter Margulies have noted, a major ruling was issued yesterday by the D.C. Circuit regarding the military commission against Abd Al-Rahim Hussein Muhammed Al-Nashiri. In short, Al-Nashiri claims that the military commission has no authority over his alleged war crimes in attacking the USS Cole because the acts took place prior to active hostilities (which we say began after 9/11/01 and the passage of the AUMF). The district court refused to reach the merits of the claim, and now the D.C. Circuit has done likewise. Judge Griffith, joined by Judge Sentelle, held that is was proper to abstain from judicial review and to leave the question of whether the crimes charged actually fall within the military commission’s jurisdiction, until after trial and review by a military appellate body.

Having had a chance to read and digest the opinion, I have few brief thoughts. 

First, the D.C. Circuit line up here and the tenor of the opinions is far more political than we have seen in most of the Guantanamo cases. Given the new influx of liberal leaning judges on the court, it seems a credible case for en banc review.

Second, on the merits, I believe the Court got it right in refusing to intervene now when Congress has provided for Article III review at a later point. The prior abstention cases generally address whether to defer where there is no Article III review afforded as part of the review scheme. Here, where Congress established a role for the Article II courts, but also made clear that such review cannot come until after final judgment, it would be quite extraordinary for a court to flout that judgment. 

And finally, on the underlying merits, there is an interesting phenomenon in this case. The detainee is arguing that the court must defer to the judgment of the political branches at the time as to whether the US was engaged in a war/active hostilities with al Qaeda. The government, in contrast, wants the court to dive in and adopt a more holistic approach. This is all in stark divergence to the arguments the respective sides make about the end of hostilities. On that issue, the executive says defer to our political judgment as to when a war is actually over, and the detainees in turn say that end of hostilities it is a factual question for the court to decide holistically. This is pretty remarkable. The government’s own arguments regarding the beginning of hostilities may at some point come back to bite them on the more important (in my view) question of end of hostilities. Only time will tell.