11/03/2011 11:13 am ET | Updated Jan 03, 2012

Al-Nashiri Case Will Highlight All That Is Wrong With Military Commissions

Next week, I'll be on the ground in Guantanamo as Abd al Rahim Hussayn Muhammad al-Nashiri will be arraigned before a U.S. military commission at Guantanamo Bay, Cuba for his alleged role in the USS Cole bombing, the USS The Sullivans attempted bombing, and the bombing of a French civilian oil tanker MV Limburg. The first Guantanamo detainee case to be initiated under the Obama administration's revamped version of the military commissions will yet again demonstrate that the military commissions are inherently flawed, and that terror suspects should be tried in federal courts.

Al-Nashiri is the first so-called high-value detainee to face the tribunal, and the first to face the death penalty, if convicted. He is accused of crimes that resulted in the deaths of 17 U.S. soldiers, one civilian, and the wounding of dozens more. And yet, he is being tried before an untested, make-it-up-as-you go system that has serious flaws with serious ramifications.

Trying the Saudi national before a military commission is unnecessarily risky because the case raises numerous legal questions about the tribunal's jurisdiction and its rules of evidence -- none of which would exist if he was tried in federal court -- for a case in which the stakes couldn't be higher.

In the al-Nashiri case, the military commission's jurisdiction will be challenged. Military commissions are only empowered to try war crimes committed during an armed conflict. But both the bombing of the USS Cole and the attempted bombing of the USS The Sullivans occurred in 2000 -- before 9/11, before the Authorization to Use Military Force (AUMF), and before the onset of an armed conflict with al Qaeda, the group with which al-Nashiri is alleged to be affiliated. Also, even though the attack of the MV Limburg occurred in 2002, the government will still need to show that an attack on a French-flagged civilian oil tanker beyond the zone of hostilities between the U.S. and al Qaeda or the Taliban was part of an armed conflict.

If the military commission decides nonetheless that the Cole and Sullivans attacks occurred in war, that merely creates a solid defense for al Nashiri. His conduct is simply not a war crime because navy vessels and their crews are legitimate military targets in war.

Additionally, not only are many of the crimes al-Nashiri is charged with -- terrorism and conspiracy -- not considered war crimes under international law, but they also have been created to apply retroactively in the military commissions. Prosecuting people for conduct that was not a crime when they committed the act violates the ex post facto prohibition enshrined in the U.S. Constitution and the international legal principle of legality.

Trying al-Nashiri before a federal civilian court, however, would raise none of these challenges. In fact, other USS Cole and USS The Sullivans conspirators have already been indicted in federal court. Federal courts have clear jurisdiction for terrorism cases, can try war crimes and non-war crimes, and have years of experience and precedent to rely on. Federal courts have convicted over 400 individuals on terrorism-related charges since 9/11, compared to the six convictions handed down by the military commissions, mostly in plea bargains resulting in short sentences.

Finally, we know al-Nashiri was held at a CIA black site and tortured with waterboarding. His life was threatened. He had a power drill put to his head and his interrogators threatened sexual assault against his mother. But this should not be a reason to try him in a military commission rather than a federal court since both civilian court and military commissions prohibit admitting evidence obtained through torture or coercion.

The trial of al-Nashiri before a military commission will result in years of legal challenges and appeals that will not only taint the legitimacy of any outcome, but will further delay the swift justice that the victims' families deserve.

This post was authored by Melina Milazzo, Pennoyer Fellow, Law and Security Program