Gitmo detainee defense: No war crimes if no war

This courtroom sketch shows terror suspect Abd al-Rahim al-Nashiri, arraigned at a November 9, 2011 hearing at the Guantanamo Bay Naval base in southeastern Cuba, on charges related to the 2000 bombing of the USS Cole in Yemen. It was his first public appearance since his capture in 2002.

GUANTANAMO BAY NAVAL BASE, Cuba A U.S. military war tribunal is weighing a question that might seem better suited for a history class than a courtroom: How long has the United States been at war?

The question is more than academic for Abd al-Rahim al-Nashiri, whose lawyers are appearing before the tribunal this week at the U.S. base in Guantanamo, Cuba, to seek the dismissal of war crimes charges that were approved by a Pentagon-appointed legal official.

Al-Nashiri faces trial in a special tribunal for war-time offenses known as a military commission for allegedly orchestrating the bombing of the USS Cole in Yemen in 2000 as well as attacks on two other ships. 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.

"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.

A Oct. 20, 2000 file photo shows the USS Cole in Aden, Yemen, following an attack which killed 17 sailors and wounded 37.
AP Photo/Hasan Jamali

The motion for dismissal is one of 21 matters set for consideration at a hearing that started Tuesday at the base, where the U.S. holds 166 prisoners, most of whom have not been charged with any crime. The hearing is scheduled to run through Thursday but officials were trying to condense the agenda because of the approach of Tropical Storm Sandy, which was heading north in the Caribbean Sea on a track to reach southeastern Cuba on Thursday.

Al-Nashiri refused to attend the hearing, telling a legal official at the prison that he was boycotting to protest the use of belly chains to move him from his cell to court.

The chief prosecutor, Army Gen. Mark Martins, argued that he should be required to attend at least so that he can be questioned about his motivations in open court in case the matter is ever reviewed in later appeals. The judge, Army Col. James Pohl, has previously said al-Nashiri can waive his right to attend pretrial hearing, as he did last week in the Sept. 11 case.

Lawyers for al-Nashiri have said he opposes restraints that remind him of the harsh treatment he endured previously in U.S. custody as well as because he feels the proceedings are pointless since the government could detain him indefinitely even if he were acquitted.

"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. "It's very easy to see somebody saying 'Why do I want to participate in this? I've got no real stake in the outcome.'"

Other items on this week's agenda include whether the U.S. government should turn over information about a man killed in a drone strike in Yemen in 2002 who was identified in some media reports as the mastermind of the Cole attack.

"If he was killed based on the fact that he was the mastermind behind the USS Cole that's relevant," said Navy Lt. Cmdr. Stephen Reyes, his military lawyer.