Retired Military Leaders Submit Brief in al-Nashiri Supreme Court Case

Washington, D.C.—On behalf of 12 retired generals and admirals of the United States Armed Forces, Human Rights First yesterday filed an amicus brief, with the pro bono assistance of Davis Polk, urging the United States Supreme Court to address the government’s attempt to use military commissions to prosecute crimes that were not committed in an armed conflict. The brief was filed in the case of Abd Al-Rahim Hussain Mohammed al-Nashiri, the alleged mastermind of the 2000 USS Cole bombing and other maritime terrorist attacks.

The generals and admirals’ brief argues that subjecting a detainee to a military tribunal whose legality is in question would put U.S. service members and nationals at greater risk of mistreatment at the hands of others and undermine the legitimacy and effectiveness of U.S. counterterrorism operations.

“When the legitimacy of military commission trials at Guantanamo Bay is called into question, there is a direct impact on the U.S. counterterrorism mission. Doubts about the legality of U.S. actions impair relationships with allies and partners who may then withhold crucial assistance, fuel anti-American sentiment about the legitimacy of the overall mission, and provide propaganda victories to extremist groups who exploit U.S. actions to bolster their recruitment,” wrote the military leaders.

The legality of al-Nashiri’s military commission is in question because none of the charges against al-Nashiri relate to conduct that took place in an armed conflict. Under both domestic and international law, individuals can only be prosecuted for war crimes based on wartime conduct.

In addition to charges concerning his suspected of involvement in the bombing of the USS Cole, alNashiri has been charged with the attempted bombing of a French oil tanker off the coast of Yemen in October of 2002. At the time of both incidents, the United States was not in an armed conflict in Yemen.

“This case is about ensuring the legality and legitimacy of the U.S. military’s counterterrorism mission, including proceedings before military commissions. The jurisdiction of military commissions is circumscribed, and the exclusive jurisdiction of civilian courts of non-wartime offenses is preserved, by the U.S. Constitution, the Military Commissions Act, and international law,” added the military leaders. “Limiting military commissions to their lawfully authorized jurisdiction protects the reputation of our country and its military for adherence to the rule of law.”

Al-Nashiri has filed a petition asking the U.S. Supreme Court to review a lower court’s holding that it had to abstain from deciding whether the military commission had authority to try Al-Nashiri until after his trial is over, leading to years of unnecessary delay. Under the 2009 Military Commissions Act, only conduct that occurs “in the context of and associated with hostilities”—hostilities being defined as “any conflict subject to the laws of war”—may be tried in a military commission.

Al-Nashiri’s case is docketed with the legal challenge of Guantanamo detainee and Yemeni citizen, ali-Hamza al Bahlul, who was convicted of war crimes for his links to Osama bin Laden and his role as an al Qaeda propagandist. Bahlul’s conviction for conspiracy remains controversial because the charge is not a war crime under international law.

Using military commissions to try cases that fall within the jurisdiction of the federal courts is unnecessary, and, as the generals and admirals brief notes, often counterproductive from a national security standpoint.

Human Rights First has organized three prior amicus briefs on behalf of retired generals and admirals arguing that failing to abide by the rule of law undermines the legitimacy of the military justice system and put service members at greater risk of unlawful treatment at the hands of our enemies.


Published on June 1, 2017


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