Retired JAGs File Amicus Brief in Support of al-Nashiri’s Ninth Circuit Appeal

Washington, D.C. – Yesterday a group of five retired generals and admirals, including four senior retired judge advocates and a lawyer who served as a strategic intelligence officer, submitted an amicus brief in a case that tests the proper role of military commissions and the role of government officials in deciding that the U.S. is “at war.” The group includes Rear Admiral Don Guter and Rear Admiral John Hutson, former top Judge Advocate Generals of the Navy. The case of Abd al-Rahim al-Nashiri is before the U.S. Ninth Circuit Court of Appeals. In the brief Rear Admiral Don Guter, Rear Admiral John Hutson, Brigadier General James P. Cullen, Brigadier General David R. Irvine, and Brigadier General Richard O’Meara  argued that al-Nashiri’s case should be moved out of the military commission system because the crime al-Nashiri is accused of, the 2000 attack on the U.S.S. Cole, occurred before the U.S. entered a state of war with Al-Qaeda and the Taliban, as determined by the president and Congress. In yesterday’s brief, the retired military leaders contend that the case poses questions regarding the scope and application of the laws of war and military commissions. The delegatee of the Secretary of Defense Bruce MacDonald, the respondent in this case, asserted that the United States was in a state of war when al-Nashiri’s terrorist attacks were carried out in Yemen. The purpose of his declaration was to establish the jurisdiction of a military commission, which is only empowered to try individuals accused of war crimes. In response, the JAGs argue, “Neither the President nor Congress certified the existence of hostilities in Yemen until, at the earliest, September 2003,” adding, “These decisions and pronouncements by the political branches are definitive and should be honored by the judiciary.” “The success of our national endeavors and the safety of our servicemen and women all benefit from the perception that our actions are consistent with the rule of law. Conversely, our nation’s moral capital is degraded when we fail to adhere to our own standards,” the retired JAGs stated in the brief. “The appellee’s revision of the historical dates of hostilities undermines the integrity of the commission, diminishes our ability to accomplish military objectives, and increases the risk faced by members of our armed forces,” said the JAGs. The signatories of the amicus brief are members of a larger nonpartisan group of retired generals and admirals who work with Human Rights First to speak out against torture and to ensure that U.S. policy reflects a single standard of prisoner treatment consistent with the Geneva Conventions. The group worked closely with Senator John McCain in 2005 to pass the Detainee Treatment Act which reinforced the ban on torture and other cruel and degrading treatment, and established the Army Field Manual as the single standard of interrogation for all prisoners in DOD custody. In 2008 they shared their insights with eight presidential candidates from both parties that torture does immense harm to the reputation of the United States, and undermines efforts to combat terrorism. The signatories of today’s brief have taken part in this brief in their personal capacities, and not as representatives of the larger group or of Human Rights First.


Published on October 2, 2012


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