A high-profile suspected foreign terrorist seized in 2002 who’s now awaiting trial before a U.S. military commission at Guantánamo Bay, Cuba, might eventually get his substantive civilian appeal heard in the year 2024, his attorney predicted Wednesday.
Underscoring how the 21st century’s boundless war will span generations, at least in courtrooms, attorney Michel D. Paradis forecast for appellate judges an excruciatingly long legal trek ahead for Abd al Rahim Hussein al Nashiri.
“We haven’t had proceedings in the military commission for over a year,” Paradis advised a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.
Attorneys now expect that Nashiri’s trial might start sometime in 2018, though Justice Department attorney Joseph F. Palmer noted “there isn’t a trial date set at this point.”
A 2018 military commission proceeding would come some 18 years after the Oct. 12, 2000, bombing of the USS Cole, a lethal attack that U.S officials say Nashiri masterminded. He faces war-crimes charges for that as well as an attempted attack earlier in 2000 on the USS The Sullivans.
The oral argument before a standing-room-only audience packed into a fifth-floor courtroom Wednesday morning did not deal, explicitly, with allegations of justice delayed. Paradis sounded matter-of-fact when he said that examining the litigation calendar revealed that “the earliest this case could get to this court” was in 2024.
Two of the three judges who heard the oral argument Wednesday will be in their 80s and, presumably, retired by the time Nashiri’s case returns, if Paradis’ prediction is correct.
But instead of sluggish justice, which everyone seemed to take for granted, another kind of time-related puzzle captivated judges and attorneys Wednesday. That is the question of whether Nashiri can even be tried by a military commission for crimes allegedly committed before the Sept. 11, 2001, terrorist attacks, which spurred Congress to create the war courts.
“This is a really difficult legal issue, when hostilities begin,” said Judge Thomas B. Griffith, a conservative appointed by President George W. Bush. “Are we in a circumstance where we’re in a position to say that a war crime has been committed?”
A native of Saudi Arabia, Nashiri was apprehended in Dubai in 2002 and transferred to Guantánamo Bay in 2006. Between his capture and his transfer to Guantánamo, he was held in secret CIA facilities overseas and subjected to waterboarding and other punishing measures.
“ ‘CIA Officer 2’ placed al Nashiri in a ‘standing stress position’ with his hands affixed over his head for two-and-a-half days,” the Senate Select Committee on Intelligence subsequently reported, adding that the same CIA officer “placed a pistol near al Nashiri’s head and operated a cordless drill near al Nashiri’s body.”
Why should the federal courts not abstain and do as Congress intended, and let the military commissions proceed?
Judge Thomas B. Griffith
The 2009 law authorizing the military commissions specifies that they may be used to try an individual charged with an offense “committed in the context of and associated with hostilities,” where hostilities are defined as a conflict “subject to the laws of war.”
Paradis, a senior attorney with the Defense Department’s Office of Chief Defense Counsel, contended that the country of Yemen was not in a state of war at the time the Cole warship was attacked there.
“The charges here are all alleged to have occurred a year before Sept. 11,” Paradis noted.
Because the case involves what Judge David Tatel called “some very highly classified materials,” some of the proceedings Wednesday were in closed session. Public court filings indicate these discussions involved Nashiri’s claims that the abuse he suffered during interrogations caused psychological harm that will worsen if he has to delay his appeals.
During the nearly hourlong public session, Palmer of the Justice Department warned judges of the “risk of interference” with the military commission system established by Congress.
“The Congress has made clear its intention that these questions be answered in the first instance by the military commissions,” Palmer said.
Tatel seemed most sympathetic to Nashiri’s argument, while Judge David Sentelle seemed more aligned with the government.
If a three-member military commission eventually convicts Nashiri, an inevitably lengthy appeal would follow to the U.S. Court of Military Commission Review. Once that court is finished, the complicated case could rumble up to the civilian D.C.-based appellate court.
Separate criminal charges against Nashiri have been filed by federal prosecutors in the Southern District of New York.