The D.C. Circuit decided Tuesday that it would let a military commission take the first whack at a crucial issue in the prosecution of Abd Al-Rahim Al-Nashiri, the alleged mastermind of the attack on the U.S.S. Cole.
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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").
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.
This past week saw major developments in the Guantánamo military commissions. As Ben reported, on Friday, the DC Circuit published an opinion denying mandamus relief to Omar Khadr. Those paying attention to the military commissions will note the similarity between this opinion and last year’s DC Circuit decision in another detainee petition, that of Al-Nashiri.
As Robert Loeb noted is his post yesterday, on Wednesday, the D.C. Circuit again heard oral argument in the case of Guantánamo detainee, Abd al-Rahim al-Nashiri. As readers know from that post, Nashiri is charged with pre-9/11 offenses, including the bombing of the USS Cole in 2000.
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).
With the ruling in Al Bahlul IV still outstanding, the D.C. Circuit is set to hear argument next month on the military commission trial – yet to take place – of Abd al-Rahim al-Nashiri, the Guantánamo detainee charged with planning the 2000 bombing of the USS Cole in Yemen, among other offenses. Nashiri’s challenge raises corollary questions to Al Bahlul about the scope of military commission jurisdiction.
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.
This morning, a three-judge D.C.