A U.S. military war tribunal is weighing a question that might seem better suited to a history class than a courtroom: How long has the United States been at war?
Al-Qaeda’s al-Nashiri faces trial for war-time offenses. But his lawyers say that since the U.S. wasn’t at war at that time, the 47-year-old shouldn’t be tried at Guantanamo.
His alleged crime is orchestrating the bombing of the USS Cole in Yemen in 2000 as well as attacks on two other ships.
“The fact of going to war is a decision by the political branches, either Congress or the president or both,” attorney Richard Kammen said Monday. “It’s not something to be arrived at retroactively by a bureaucrat who is not appointed by Congress because it has huge consequences.”
Al-Nashiri’s lawyers say that the U.S. wasn’t at war until after the Sept. 11, 2001, attacks and then-President George W. Bush did not certify the existence of hostilities of any kind in Yemen until September 2003.
Al-Nashiri’s lawyer described the serious nature of the situation.
“If he is acquitted he does life without parole in Guantanamo. If he's convicted he gets life without parole or death in Guantanamo,” Kammen said.
The alleged senior member of al-Qaeda, he was held for four years in the CIA’s secret network of overseas prisons, where he was subjected to the “enhanced” interrogation program that included at least two instances of the simulated drowning technique known as waterboarding.
Al- Nashiri has been held at Guantanamo Bay since 2006.
In making the case for the military tribunal, prosecutors lay out the history of what they see as al-Qaeda’s escalating war against the U.S., starting with an August 1996 declaration by Osama bin Laden calling for the murder of U.S. personnel serving on the Arabian peninsula, though it wasn’t until a week after the Sept. 11, 2001, terrorist attacks that Congress and Bush approved an authorization for military force.
Al-Nashiri’s lawyers say that former President Bill Clinton repeatedly noted that the country was at peace in the aftermath of the Cole attack.
A group of retired admirals and generals who served as senior military legal officials called for the military charges to be dismissed and for the case to be shifted to a civilian criminal court.
They also argued that the definition of war was being improperly expanded to include non-war offenses in the al-Nashiri case, and that such a use of the military courts could put U.S. soldiers and citizens in jeopardy in the future if other countries did the same thing to them.
“If countries can retroactively decide we were at war and chuck people from the civilian court systems into prisoner of war systems with the attendant lack of protections, that road runs both ways,” Kammen said. “Once you get to go back in time and rewrite history that's a very, very dangerous precedent.”
Prosecutors say in court papers that it will be up to the jury to decide whether the war crimes were properly filed in this case, and that it’s too early for the judge to rule on the question.