Supreme Court Declines to Hear Nashiri Case

Washington, D.C.—Human Rights First expressed disappointment in today’s decision by the Supreme Court not to take up the case of Abd Al-Rahim Hussain Mohammed al-Nashiri, the alleged mastermind of the USS Cole bombing. Defense counsel asked the justices to review whether military commissions could be used to prosecute crimes that were not committed during an armed conflict. That question will now remain unanswered until after Nashiri’s trial is completed and on appeal.

The Supreme Court’s decision to avoid resolving this issue comes just days after the Brigadier General John Baker, the chief defense counsel, disbanded Nashiri’s entire civilian defense team out of fears that privileged attorney-client communications had been compromised.

“Using military commissions to try cases that fall within the jurisdiction of the federal courts is unnecessary and counterproductive for national security,” said Human Rights First’s Rita Siemion. “As we’ve seen time and again, federal courts are simply more effective at prosecuting terrorism suspects, and have none of the foundational problems that have plagued military commissions from the very beginning.”

Human Rights First filed an amicus brief on behalf of 12 retired generals and admirals urging the Supreme Court to address this question, which is key to the tumultuous military commission trial. The generals and admirals argued 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 undermines 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 involvement in the bombing of the USS Cole, al-Nashiri 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.

Al-Nashiri’s case was docketed with another important legal challenge by 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. However, the Supreme Court also declined to take up al Bahlul’s case.

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 puts service members at greater risk of unlawful treatment at the hands of our enemies.

For more information contact Corinne Duffy at [email protected] or 202-370-3319.


Published on October 16, 2017


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