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Commission Trial for Cole Bomber? Don't Bet On It
The Times reports that Abd al-Rahim al-Nashiri, long suspected as being the main al-Qaeda operative behind the bombing of the destroyer, the U.S.S. Cole, that killed 17 members of the American Navy on October 12, 2000, has been referred for a war crimes trial by military commission. The government seeks the death penalty.
Plainly, the military is trying to press ahead with commission trials. Strictly speaking, the Supreme Court's decision in Boumediene, which granted constitutional habeas corpus rights to alien enemy combatants held at Gitmo (meaning, they get to have civilian federal judges review their cases), was limited to detention; it did not directly rule on the propriety of conducting trials for war crimes without civilian judicial participation. But a trial (which can result in death or life-imprisonment) is generally deemed to be a weightier matter than mere detention (which, under the laws of war, terminates automatically when hostilities end), and has thus traditionally been accompanied by more due process.
I understand the government's position — war crimes trials have long been held without U.S. court interference and, after all, as Rich Lowrey's column today points out, in 2006, when the Supreme Court in Hamdan invalidated the president's ordering of commission trials, the justices claimed the problem was that Congress had not approved them, prompting Congress to pass the Military Commissions Act precisely to approve them. But, alas, these were the very arguments that Justice Kennedy and the Court's liberal bloc brushed aside in Boumediene.
The Times reports that, predictably, the war-crimes defendants will now go to federal court and argue the Boumediene's rationale means the commission trials cannot go forward. Expect them to get a sympathetic ear.