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The Supreme Court once again rejects hearing a Gitmo detainee's case

by Josh Marcus
Oct 16 2017, 3:00pm

For the second time this term, the Supreme Court declined to hear a case about how Guantanamo Bay detainees can challenge their convictions.

The High Court’s justices turned down the opportunity on Monday to hear an appeal from a detainee accused of masterminding the USS Cole bombing, a 2000 al-Qaida attack on a Navy vessel in Yemen that left 17 sailors dead and dozens wounded.

The decision puts 52-year-old Abd al-Rahim al-Nashiri of Saudi Arabia one step closer to being tried before a military commission at the island’s naval base instead of in a federal court like his case requests.

Terrorism cases end up before military tribunals in Guantanamo when “enemy combatants” get convicted of crimes that happened during “hostilities” with the U.S. Nashiri’s lawyers, however, argue that because the attack occurred in 2000 — when the U.S. wasn’t engaged in “hostilities” with al-Qaida — a military tribunal doesn’t have jurisdiction over the case. His lawyers asked the Supreme Court to hear his case in January.

“Their challenges go to the authority of the commission to hold a trial at all,” said Prof. Madeline Morris, director of the Guantanamo Defense Clinic at Duke University Law School. “You can’t have an enemy combatant without an armed conflict. The onset of hostilities is critical.”

If the Supreme Court did take up the case, the justices would be addressing Nashiri’s individual claims as well as potentially wading into complicated questions about when the War on Terror began and how the country defines hostilities with its enemies. But the High Court often prefers so-called “clean” cases that can resolve a single issue, according to Morris.

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While the Supreme Court’s rejection essentially ends Nashiri’s options for appeal, big questions still remain in the case.

His entire civilian defense team resigned on Friday over suspicions that the government listened in on their confidential conversations. Just a single military lawyer without death penalty expertise remains on the team, and death penalty cases can’t move forward unless defendants have counsel with significant capital punishment experience.

It’s not the first time the government has been suspected of tampering with legal teams in Guantanamo trials. In 2013, a military lawyer acknowledged Guantanamo’s meeting rooms contain microphones disguised as smoke detectors, although he denied the government listened to attorney-client conversations.

“There’s a litany of examples that are well publicized,” said J. Wells Dixon from the Center for Constitutional Rights, which filed a brief in support of Nashiri’s appeal to the Supreme Court. “A lot of that raises the question of whether it’s possible to get a fair trial at Guantanamo for anybody.”

Nashiri could easily wait another 10 years before a resolution in the case, according to Dixon. And his extensive torture in a CIA “black site” after his capture further complicates matters.

Last week, the High Court rejected another appeal from a Guantanamo detainee, Ali Hamza Ahmad Suliman al-Bahlul, a former media secretary for Osama bin Laden, who wanted his domestic conviction heard in federal court instead of a military tribunal.

Despite its recent denials, the Supreme Court heard a number of Guantanamo cases in the early days of the George W. Bush administration, according to Dixon, after the administration told federal courts they had no role in Guantanamo detentions.

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