Military Commissions

Nashiri Update

By Robert Loeb, Helen Klein Murillo
Wednesday, July 6, 2016, 4:57 PM

The Nashiri saga has picked up steadily in recent weeks. We now know that in response to last June’s DC Circuit opinion alerting the Administration to constitutional Appointments Clause concerns regarding the military judges serving on the Court of Military Commissions Review, President Obama nominated two military judges—Air Force Colonel Martin T. Mitchell and Navy Captain Donald C. King—on March 14, 2016. The Senate confirmed both on April 28. On May 18, the CMCR lifted the 18-month stay and denied Nashiri’s motion to disqualify Judges Mitchell and King on other statutory grounds.

Then, in June, the CMCR got back to business. It reversed the trial judge’s previous jurisdictional dismissal of the M/V Limburg charges in an order endorsing the government’s position that whether Nashiri’s crimes were committed “in the context of and associated with hostilities” is an element of the offenses to be proved at trial and does not implicate subject-matter jurisdiction. The government’s attorney, Joseph Palmer, filed a letter on June 15 with the DC Circuit notifying it of the CMCR’s decision.

Nashiri’s counsel countered with a letter urging the DC Circuit to decide the case before it despite the CMCR’s ruling:

On June 15, 2016, Respondent-Appellee filed a 28(j) notice of the CMCR’s decision on an interlocutory appeal. The question presented was the military commission’s jurisdiction over extraterritorial charges that had no articulable nexus to the United States. In deciding that question, the CMCR appears to have held that there are no judicially enforceable limits on a military commission’s subject-matter jurisdiction. To the extent the CMCR opined on any issue now before this Court, it was solely on matters of statutory construction and constitutional law that this Court is in a better position to answer, both as a matter of judicial competence and institutional independence.

The letter attached a new slew of FOIA releases regarding Nashiri’s detention and interrogation to reiterate the defense’s argument that needless irreparable harm will befall Nashiri if he is subject to an “ad hoc capital trial at Guantanamo.”

The CMCR’s June 9 opinion is available here.