nationalsecuritylaw United States v. Nashiri (Mil. Com. Apr. 20, 2011) (charges sworn)

* United States v. Nashiri (Mil. Com. Apr. 20, 2011) (charges sworn)

I do not have a copy of the sworn charges, but the details from the press release today appear below. For comparison’s sake, you can find the earlier iteration of charges and motion papers relating to Nashiri here. At first glance, the major difference appears to be that the earlier material support charge has been dropped, and charges relating to attacks on civilians (presumably focused on the attack on the MV Limburg in 2002) have been added. The press release states:

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia.

The chief prosecutor has recommended that the charges against Nashiri be referred as capital. Capital charges may only be pursued with the convening authority’s approval.

The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side. The charges also allege that Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000.

It is further alleged that Nashiri was in charge of the planning and preparation for an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden on Oct. 6, 2002. This attack resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf.

The charges allege that Nashiri committed offenses that are chargeable under the Military Commissions Act of 2009, 10 U.S.C. §§ 948a, et seq. Under that act, he may be convicted only if his guilt is proven beyond a reasonable doubt. Specifically, Nashiri is charged with the following substantive offenses: terrorism; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; hazarding a vessel; using treachery or perfidy; murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy to commit terrorism and murder in violation of the law of war; destruction of property in violation of the law of war; and attempted destruction of property in violation of the law of war.

These charges go beyond what is necessary to establish that Nashiri may be lawfully detained under the 2001 Authorization for Use of Military Force, as informed by the laws of war — an issue that each Guantanamo detainee may challenge in a habeas petition in federal court.

In accordance with the Military Commissions Act of 2009, the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald. The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission. If the convening authority decides to refer the case to trial, he will designate commission panel members (jurors). The chief trial judge of the Military Commissions Trial Judiciary would then assign a military judge to the case.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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