Terrorism Trials & Investigations

Military Commission Charges Referred Against Al-Nashiri

By Robert Chesney
Wednesday, September 28, 2011, 2:19 PM

Charges have just been referred in the al-Nashiri case.  Next step: arraignment.  Thanks to the very-slick new commissions website (www.mc.mil), the charges are available here.  They include some but not all the charges originally specified by prosecutors.   Note that while some of these charges do raise complex questions regarding whether the law of war applied at the time of the conduct in question (as to the Sullivans and Cole attacks), that question arises in a different way as to the post-2001 attack on the Limburg--there the issue is not a temporal one so much as a geographic one.  Also note that the murder-in-violation-of-the-law-of-war charge does not rest on the claim that just any violence by an unprivileged belligerent counts, but rather is predicated on the use of perfidy in the course of an attack.   In any event, here are the charges:

Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to get close to the USS Cole exploited the protection for civilians under the law of war. 

Charge 2: Murder in Violation of the Law of War (10 USC 950t(15)) – the idea here is that the perfidious attack rendered the resulting murders violations of the law of war) 

Charge 3: Attempted Murder in Violation of the Law of War (10 USC 950t(28)) – same as above as to the Cole, but a separate specification mounts this charge also in relation to the failed attack on the USS Sullivans in January 2000. 

Charge 4: Terrorism (10 USC 950t(24)) – The first idea here is that the attack on the Cole was intended to influence the government through unlawful violence.  A second specification presents the same claim as to the 2002 attack on the MV Limburg.

Charge 5: Conspiracy (10 USC 950t(29)) – The conspiracy charge as referred is a touch narrower than it was when first specified.  References to activities in Qatar and Bosnia have been deleted, for example.  But the bottom line is the same: a conspiracy with other al Qaeda figures to commit terrorism and murders in violation of the law of war, supported by various overt acts.  Interestingly, the convening authority deleted the first specified overt act, having to do with allegations that al-Nashiri between 1994 and 1999 traveled to various locations to obtain training and participated in fighting.

Charge 6: Intentionally Causing Serious Bodily Injury (10 USC 950t(13)) – similar to the murder count, related to the Cole attack.

Charge 7: Attacking Civilians (10 USC 950t(2)) – Based on the Limburg attack.

Charge 8: Attacking Civilian Objects (10 USC 950t(3) – same as above

Charge 9: Hazarding a Vessel (10 USC 950t(23) – same as above

Deleted charges: The Convening Authority did not refer the destruction of property in violation of the law of war charge, nor the attempt version of that charge. 

From DOD’s press release:

The Department of Defense announced today that the Convening Authority, Office of Military Commissions referred charges to a military commission in the case of United States v. Abd Al Rahim Hussayn Muhammad Al Nashiri. The referred charges allege, among other things, that Al Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. That attack killed 17 sailors, wounded 37 sailors, and severely damaged the ship.

     The Convening Authority referred the charges to a capital military commission, meaning that, if convicted, Al Nashiri could be sentenced to death. Pursuant to the reforms in the Military Commissions Act of 2009, Al Nashiri has been provided with additional counsel, learned in the applicable law relating to capital cases, to assist in his defense.

     The charges also allege that Al Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000. The charges further allege that Al Nashiri was in charge of the planning and preparation for attack on the French civilian oil tanker MV Limburg in the Gulf of Aden on Oct. 6, 2002. This attack resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf.

     In accordance with Military Commissions rules and procedures, the Chief Trial Judge of the Military Commissions Trial Judiciary will assign a military judge to the case, and Al Nashiri will be arraigned at Guantanamo within 30 days of service of the referred charges upon him