(CN) — The D.C. Circuit refused to block the trial by military commission of Abd al-Rahim al-Nashiri, the alleged "mastermind" of the U.S.S. Cole bombing, despite his claims of torture and waterboarding at CIA black sites.
Abd Al Rahim Hussein Al-Nashiri is being held at Guantanamo Bay on murder, terrorism and conspiracy charges.
Arrested in the United Arab Emirates in 2002, Al-Nashiri is a suspect in the 2000 bombing of the U.S.S. Cole, which killed 17 sailors, the attempted bombing of the U.S.S. The Sullivans that same year, and the 2002 bombing of the M/V Limburg.
Al-Nashiri says before he was taken to Guantanamo Bay, he was shuffled between CIA black sites for four years. He claims during this time, he was regularly tortured, including being waterboarded, shackled to the wall naked overnight, and forcibly sodomized under the pretext of a cavity search.
Al-Nashiri has fought to be tried for his alleged crimes in civilian court, claiming a military commission can only try offenses that occurred during a time of war, and the U.S. was not at war with Yemen when the bombings occurred.
He cites President Bill Clinton's description of the Cole bombing as a "peacetime attack," and the fact that the FBI led the investigation of the bombing, as if it were a crime scene rather than a combat zone.
Further, President George W. Bush did not authorize military operations against al-Qaida in Yemen until 2003, he says.
His arguments failed before the Ninth Circuit, which found in 2013 that the Military Commissions Act stripped it of jurisdiction over his claims.
They failed a second time before a divided D.C. Circuit Tuesday.
"The disagreement between the parties boils down to two central questions," Judge Thomas Griffith said, writing for the panel's 2-1 majority. "Should the existence of hostilities be determined based on the totality of the circumstances, or only on the understanding of the political branches? And may it be based on a retrospective analysis, or only on what decisionmakers believed at the time of the events? Al-Nashiri and amici believe the judgments of the political branches at the time are what matters; the government takes a broader view."
The court declined to decide those questions Tuesday. Griffith found the commission has the authority and expertise to make a decision as to whether hostilities existed at the time.
"We are particularly confident that Congress did not intend to allow a defendant to halt the workings of a military commission by challenging in federal court an issue that could just as easily be considered by the commission and reviewed by a federal appellate court: the commission's own subject matter jurisdiction," Griffith said.
The MCA provides that military commissions have jurisdiction over conduct occurring "before, on, or after" September 11, 2001, suggesting that Congress believed hostilities existed before the attack on the World Trade Center.
Judge David Tatel dissented, finding that the extreme conditions of alleged torture at the hands of the CIA and his continued confinement at Guantanamo Bay warrant review of Al-Nashiri's habeas petition.
"Al-Nashiri alleges that the government subjected him to years of brutal detention and interrogation tactics that left him in a compromised physical and psychological state and that the harms he has already suffered will be exacerbated - perhaps permanently - by the government's prosecution of him in a military commission. If there is merit to these allegations, the harms he will suffer are truly extraordinary and are a far cry from the ordinary burdens - even serious ones - that individuals endure in the course of defending against criminal prosecutions," Tatel said.
He said the extraordinary harm Al-Nashiri faces outweighs the majority's concern for inter-branch comity principles that would generally warrant waiting for the military commission to first make its decision.
Griffith agreed with Tatel that Al-Nashiri's allegations regarding his treatment are "deeply troubling," but said they are not enough to qualify for an exemption under the MCA.
Al-Nashiri does "not provide any reason to fear that he will not be given a fair hearing in the military commission," Griffith said. "Instead, Al-Nashiri's allegations are about his particular vulnerabilities to a trial by a military commission at Guantanamo Bay. Because they say nothing about the competence of the military commission itself, those harms do not meet the requirements of the 'extraordinary circumstances' exception."
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