Gitmo Detainee Impugns Trial in Military Court

(CN) - A suspected terrorist should be tried in a civilian court instead of a military tribunal because his alleged crime was not committed in a war zone, lawyers for a Guantanamo Bay detainee told the 9th Circuit.

Abd Al Rahim Hussein Al-Nashiri is a Saudi citizen and suspected in several al-Qaida terrorist attacks, including the 2000 bombing of American navy ship the U.S.S. Cole, which killed 17 sailors. Al-Nashiri was arrested in the United Arab Emirates in 2002 and transferred to U.S. custody.

The American Civil Liberties Union sued the CIA for destroying videotapes it says depicted torture of Al-Nashiri and another alleged terrorist, but a federal judge refused to sanction the agency in 2011.

Al-Nashiri is currently held at Guantanamo Bay awaiting trial by a military commission for charges including capital murder. In 2011, he sued Bruce MacDonald, a U.S. Defense Department official who convened the commission, claiming the commission does not have jurisdiction. The Tacoma, Wash.-filed complaint says a military commission can be created only to try offenses that occurred during a time of war. Al-Nashiri is a suspected, however, for crimes that occurred in Yemen in 2000 and 2002 when no hostilities were declared.

U.S. District Judge Robert Bryan dismissed the suit in 2012, finding the court did not have jurisdiction because Congress directed the military commission, not a District Court, to determine whether the commission has jurisdiction in a particular case. Bryan also ruled that the suit was barred by sovereign immunity because the "declaratory judgments Al-Nashiri seeks would operate against the United States, not against MacDonald."

Al-Nashiri's attorney, Michel Paradis, argued before an appellate panel in Seattle last week that Congress said Al-Nashiri's alleged crimes were "not triable" before a military commission.

As such the lower court erred in dismissing the claims, Paradis said.

Although Al-Nashiri could appeal a commission verdict to the D.C. Circuit, he should not be required to face an illegal trial, the Department of Defense defense lawyer added.

"The question in this case is whether an individual has to be tried, convicted and sentenced for a crime that Congress said was not triable, before a court will rule that trying him in the first place was illegal," Paradis said.

According to the 2009 Military Commissions Act, an offense could only be tried before a military commission if it occurred in the "context of hostilities," Paradis said. He called the court's decision to allow the commission to define hostilities "profoundly troubling."

"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."

Judge M. Margaret McKeown wanted to know why the 9th Circuit should step in, instead of letting the case "run its course."

Paradis said court intervention is necessary to keep Al-Nashiri from a 10- to 15-year death penalty trial.

"Every day he will be standing trial for his life," Paradis said.

If Al-Nashiri seeks a plea deal to avoid the death penalty, the federal court will never get to review the legality of the commission, he added.

James Brosnahan, representing retired military admirals and generals as a friend of the court, told the panel th "the Constitution is very clear" in stating that only Congress can declare war.

Allowing a military commission to determine when hostilities occurred is "something that will affect the safety of American troops," Brosnahan said.

Justice Department attorney Sydney Foster, representing MacDonald, said the panel could affirm the lower court's decision on several different grounds and focused her argument on jurisdiction.

She said Congress determined judicial review of the military commission decisions must take place in the D.C. Circuit, and that Al-Nashiri's claim was properly dismissed.

Congress wanted to establish a "clear line of precedent" so the military would not be confused about what law to follow, Foster said.

It was not uncommon or unreasonable to expect Al-Nashiri to go through a commission trial and then appeal to federal court, she added.

"This is not uncommon if a criminal defendant files a motion to dismiss an indictment and that motion is denied, then typically that defendant has to wait until any final conviction to raise those issues in a court of appeals" Foster said.

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