(CN) - The military commission in Guantanamo Bay has jurisdiction to hear charges against a Saudi man suspected in the bombing the U.S.S. Cole and other terrorist attacks in Yemen, the 9th Circuit ruled Friday.
Abd Al Rahim Hussein Al-Nashiri is being held at Guantanamo Bay on murder, terrorism and conspiracy charges. Office of Military Commissions records show that a motions hearing in his case is scheduled for Feb. 17, 2014.
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.
In a 2011 lawsuit, Al-Nashiri claimed, among other things, that there is no jurisdiction to prosecute him because the 2009 Military Commissions Act extended it only for crimes committed during a state of war.
At the time of the bombing plots for which Al-Nashiri was charged, the United States was not at war with Yemen, he said.
When the 9th Circuit disagreed Monday, Al-Nashiri's attorney Michel Pardis said he was disappointed but not surprised.
Indeed, the appeals court reached a similar ruling in the case Hamad v. Gates this past October, Paradis said.
In that case, a three-judge panel found that "Congress's decision in § 2241(e)(2) to preclude only alien detainees captured as part of the war on terror from bringing damages actions easily passes rational basis review."
Pardis emphasized that he had nevertheless hoped for an order compelling consideration of the case's merits, rather than dismissal on jurisdictional grounds.
In deferring to the military commission, the federal courts have once again avoided a "hard question" - in this case, when did hostilities in Yemen begin, the lawyer said.
"By avoiding the merits of these really important questions, you create this constant atmosphere of uncertainty," said Paradis with the Office of the Chief Defense Counsel in Washington, D.C.
Paradis expects the D.C. Circuit, which has so far overturned every appeal from the military commission, to ultimately answer the question in "five or six years,"
"We have federal courts for reason - to decide questions of law and decide hard questions of law," Paradis said. "I think the policy in the long run is going to be really quite damaging, to the legal system and maybe to the judiciary. Punting doesn't get rid of the issue. It just delays the issue until far more money has been spent and far more damage has been wrought."
U.S. District Judge Robert Bryan originally dismissed the suit in Tacoma, Wash., finding that both the Military Commissions Act and sovereign immunity bar the suspect's claims.
At oral arguments before a three-judge panel of the 9th Circuit this past June, Paradis noted that at the time of the U.S.S. Cole bombing President Bill Clinton had called it a peacetime attack.
President George Bush likewise had not authorized military operations against al-Qaida in Yemen until 2003, said the lawyer with the Office of the Chief Defense Counsel in Washington, D.C.
Congress meanwhile had not conceded that there was an armed conflict in Yemen until 2009, according to the appeal.
"When you have the president say America is not at war and when you have the president ultimately not even say that hostilities exist until 2003, it's not a hard question," Paradis said at oral arguments.
In affirming dismissal Friday, the unanimous appeals panel found that Section 7 of the MCA strips jurisdiction over Al-Nashiri's claims "based on the allegations in the complaint and under the plain terms of § 2241(e)(2)."
Judge M. Margaret McKeown wrote the ruling for the Seattle-based panel.
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