When you take an 18-month break, it’s unsurprising that you’ll return home to some cobwebs that will need to be swept away. The second of three days of motion hearings in the Nashiri military commission continues where the first left off: with another round of housecleaning focused on establishing the itinerary for the remaining two days.
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And we’re back, after a trifling 18-month delay, a lot of litigation, and a major D.C. Circuit decision: the military commission has reconvened for three days of motions hearings in the case of Abd al-Rahim al-Nashiri, accused of orchestrating the USS Cole bombing. Presiding as military judge is Air Force Colonel Vance Spath, who begins the hearing by asking the prosecution and defense to introduce their respective line-ups before the court. It’s been a while, after all.
IT'S OUR SIXTH BIRTHDAY!
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.
Steve Vladeck this morning beat me to the punch on a key takeaway about the Al Nashiri II decision yesterday. But his attitude toward the subject is a bit different from mine. So while I agree with him on a crucial bottom-line point, I would formulate the matter a bit differently.
Unless you're someone who keeps a copy of Hart & Wechsler on your desk, you probably don't care that much about Tuesday's divided ruling by the D.C. Circuit in In re Al-Nashiri (which, for ease of reference, we should call "Al-Nashiri II," to distinguish it from the D.C. Circuit's February ruling on different matters in "Al-Nashiri I").
In Al Nashiri v. Obama, a panel of the D.C. Circuit appeared to be leaning toward allowing the federal courts to address when hostilities began with al Qaeda. Al Nashiri is challenging the authority of the Guantánamo military commissions to try offenses that pre-dated the September 11 attacks. Specifically, Nashiri is charged with complicity in the bombing on the USS Cole in 2000, and an earlier attempted bombing, that year, of the USS The Sullivans.
Nashiri’s Reply Brief, released on Friday, responds to the government’s contention that Nashiri’s petition does not sound in habeas at all, and is therefore barred by 28 U.S.C. § 2241(e)(2).
Last Wednesday, following more of the oft-renewed Administration calls to close Guantánamo, 10 Yemeni detainees were transferred to Oman—the biggest single transfer under the Obama administration. Meanwhile, the litigation surrounding Abd al-Rahim al-Nashiri’s yet-to-be-commenced military commission trial pressed on. Last week, the government argued that abstention should prevent a decision on the merits of the effort to stop the trial before it happens.
What was already shaping up to be a busy (and important) few months for the D.C. Circuit vis-a-vis the Guantánamo military commissions just got a little busier.