Some Thoughts on al Nashiri and Military Commissions While Waiting for the Grown-Ups to Take Over

04/22/2011 12:55 pm ET | Updated Jun 22, 2011

The Department of Defense announced yesterday that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia. They will seek the death penalty for his alleged role in the USS Cole attack of 2000 and an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.‬‪ ‬‪

These charges provide a perfect teachable moment about what's wrong with military commissions and why prosecution of al Nashiri is better left to the regular, federal criminal courts.‬‪ ‬‪

What the government says here is that al Nashiri is a war criminal for attacking the Cole. But if the Cole attack was in a war, then it's not a war crime because under the laws of war, the USS Cole is a legitimate military objective, as are the sailors on the vessel.

Aha, but isn't al Nashiri an "unlawful combatant?" No he's not. In fact, the Obama administration has rightly deep-sixed the Bush-era term "unlawful enemy combatant," for Guantanamo detainees, replacing it with "unprivileged enemy belligerent." This is consistent with a recognition that under the laws of war, participation in hostilities by civilians is not "unlawful." Since military commissions may only take up crimes in violation of the laws of war, everything charged in connection with the Cole attack would be out the window, with the possible exception of perfidy.‬‪ ‬‪

But surely, Congress can "define and punish" war crimes so what's the problem? Yes, Congress is empowered to do that under the Constitution, but only within the limits of international law. And those limits include the prohibition against prosecuting people for conduct that occurred before the law came into effect. That's a violation of the international legal principle of legality, a component of which is the ex post facto prohibition, also enshrined in the U.S. Constitution. ‬‪

And even perfidy goes out the military commission window if the Cole attack was not part of an armed conflict. The attack occurred almost a year before the 9/11 attacks and the Congressional Authorization for the Use of Military Force, so the jurisdictional prerequisite for military commissions is questionable.‬‪ ‬‪

The MV Limburg allegations are less problematic, because it's not a military objective. But there, too, the government would have to prove that it was part of an armed conflict.‬‪ ‬‪

So how would federal court be any better? There, instead of being charged only with war crimes, al Nashiri could be charged with both war crimes (there is a federal war crimes law that many people who say "civilian courts are for civilian crimes and military commissions are for war crimes" seem to be unaware of) and, in the alternative, non-war crimes. Thus, it would not help al Nashiri to claim that the Cole attack was before any war, or was a military objective in a war, or that the Limburg attack was not related to war. And there are both war crimes and non-war crimes available under federal law that pre-date Nashiri's alleged acts, so there would be no ex post facto problems.‬‪ ‬‪

And even if I'm dead wrong about these arguments, no one will deny that they will be raised in the military commissions, causing much confusion and delay, whereas they would present no obstacle in federal courts.‬‪ ‬‪

Congress, in a cynical or uninformed move to appear "tough on terrorism" without regard to reality, has placed substantial obstacles in the way of using federal courts to try Guantanamo detainees. They threw real national security and justice interests under the bus in order to pander to ignorance and fear -- fear that federal trials will be "unsafe" or that they will not be tough enough. All this ignores the fact that since 9/11, federal courts have convicted hundreds of people in connection with international terrorism, and without incident, while military commissions have had only one contested trial, one uncontested trial, and a small handful of plea bargains with light sentences.‬‪ ‬‪

Those light sentences are also an object lesson. When you're copping a plea, as opposed to taking your chances at trial, you give up your rights of appeal. When there are lots of tricks in your appellate bag (like a dozen arguments about the illegitimacy of the entire process) the prosecutor will give you a better deal than if you have fewer tricks (like in a federal court). In short, military commission prosecutors have a weak hand defending a flawed system. That's why there have been light sentences in military commission plea bargains. Anyone who's ever been on the wrong end of a federal prosecution, on the other hand, knows that it can feel like a freight train bearing down on a butterfly.‬‪ ‬‪

Questions of leverage aside, the real comparative advantage of federal court is that it is a system with so much greater experience, stability and credibility than the ad hoc, make-it-up-as-they-go-along military commissions. Even if we weren't talking death penalty, that would make a big difference for both the reality and the appearance of justice.‬