The Department of Defense announced the approval of military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, who it alleges to have masterminded the USS Cole bombing, on September 28, 2011, clearing the way for his arraignment and subsequent trial in a Guantánamo courtroom. Al Nashiri will face nine separate charges and a possible death sentence. Having been in command of a U.S. Navy guided missile frigate the day the Cole was struck, I am particularly eager to see justice done for this act of terrorism. But having spent most of the decade since 9/11 studying the law of war in general and military commissions in particular, I firmly believe that these are the wrong charges before the wrong court.
A military conviction will both require a strained application of the law of war and establish dangerous legal precedent that could put American military personnel at greater future risk. The Supreme Court has determined that military commission jurisdiction is strictly limited to conduct taking place during the period of an armed conflict. This is easily satisfied by acts on and after September 11, 2001 thanks to the congressionally enacted Authorization for the Use of Military Force (AUMF). But to hold that the October 2000 Cole bombing, as well as the earlier failed attack on the USS The Sullivans, took place during an armed conflict requires conceding to al Qaeda the nation-state's prerogative to declare hostilities. Since a warship is a lawful object of attack, we can then object only to the means used, not to the attack itself. Ruses, including the use of false flags, are permitted in naval warfare, allowing al-Nashiri to raise defenses wholly irrelevant in a federal terrorism prosecution, which would fairly hold that any pre-9/11act of violence against Americans, military or civilian, was a serious crime regardless of how conducted. Moreover, such a precedent would logically allow future terrorist groups to announce they were at war with the United States and lawfully kill our service personnel if they adopted means compliant with the law of armed conflict.