The Dzhokhar Tsarnaev terrorism case required just under two years from his arrest following the Boston Marathon attack to complete his trial. His sentencing hearing before the jury added another month. But Tsarnaev was prosecuted in a civilian federal court, whereas Nashiri has been charged before a military commission (MC) at Guantánamo, where vastly different realities prevail. The proceedings against Nashiri began with the filing of charges in September, 2011, nearly four years ago, and no one argues that he will be tried anytime soon. Indeed, probably you could fit another Tsarnaev prosecution within the time that will pass before the Nashiri trial even begins.
What progress has been made recently? Zero since March, if you gauge progress according to hours of court time. Even before that, the Convening Authority (CA) — the government official who not only convenes the MCs, but who also is responsible for their staffing and resources, among other duties — dissatisfied with the progress in the Nashiri and other MC cases — sent an Action Memo to the Deputy Secretary of Defense (DSD) recommending that, to speed them up, the DSD should direct that military judges presiding over MC prosecutions have no other duties in other cases, and order that they live full-time at Guantánamo; the DSD followed this advice. Alas, neither the CA nor the DSD seem to have considered the longstanding and strict proscription in military courts against exerting unlawful command influence over them, carried forward in the Military Commissions Act of 2009. One military case even describes unlawful command influence as “the mortal enemy of military justice.” Though the DSD by then had rescinded his directive, on March 14, 2015 Military Judge Vance Spath — to rid the Nashiri case of taint from the CA’s and DSD’s original action — disqualified the CA and his staff from any further role in the Nashiri case, and directed that the DSD appoint a replacement CA. Further, “to ensure that any last vestiges of taint” would be removed, he adjourned scheduled court proceedings, and warned that any similar efforts to improperly influence the trial judiciary “will likely lead to more drastic remedies.” Especially since the defense team had sought dismissal of the prosecution because of the CA’s and DSD’s transgression, no doubt Spath’s threat got the government’s attention.
These antics represent merely the latest in a parade of strange doings in the Nashiri case flowing from the decision to charge him in an MC rather than a civilian federal court. To mention only two, Judge Spath dismissed one of the three sets of charges against the accused, not because they failed to allege a crime, but because an MC has no jurisdiction (that is, power) to try such offenses. The charges concerned the attack, allegedly orchestrated by Nashiri, on the French-flagged supertanker MV Limburg, a civilian vessel chartered by a Malaysian firm, and carrying Iranian oil. Judge Spath found that the government had failed to produce evidence, despite opportunities to do so, to support its contention that the attack took place as part of an armed conflict. On the government’s motion for reconsideration, Spath amended his order by making the dismissal “without prejudice,” meaning that the charges may be brought anew.
The prosecution filed an appeal to the Court of Military Commission Review (CMCR) seeking reinstatement of the dismissed charges, which prompted Nashiri’s defense team to file a petition with the D.C. Circuit Court of Appeals, asking that civilian court to disqualify two of the three CMCR panel members assigned to hear the appeal because their appointments violated the Commander-in-Chief and Appointments Clauses of the U.S. Constitution. After staying the CMCR proceedings, the D.C. Circuit heard oral argument on the petition, but has yet to rule.
On March 27, 2015, the prosecution filed another appeal to the CMCR, this time seeking review of Judge Spath’s order preventing the government from expanding its charges and specifications relating to the assault — again, allegedly planned by Nashiri — on the USS Cole in Aden Harbor by offering evidence of wanton disregard not only for the lives of the Cole’s sailors killed or wounded when the explosives-laden launch struck their vessel and those of its other crewmembers as well, but also for the lives of foreign nationals working to fuel and service the ship. Resolution of that appeal also must abide the D.C. Circuit’s decision on the accused’s petition to disqualify the two CMCR panelists.
On April 10, 2015, Spath decided that, because the CMCR’s resolution of the two appeals “will shape how this case progresses and is tried,” he would conduct no further hearings until either of the appeals is resolved. No one can predict how long that stay will continue, especially since the CMCR can’t decide anything until the D.C. Circuit rules on whether the CMCR panel of judges assigned to hear the appeals has been constitutionally staffed.
As Air Force Colonel (Ret’d) Morris Davis, former Chief Prosecutor of the MCs recently pointed out, after the CA was forced to leave, his interim replacement was the seventh to serve in that role since 2003. Further, six military lawyers have served as Chief Prosecutor of the war courts. “Think about that for a moment. If a professional football team was on its seventh head coach and sixth quarterback in less than a dozen years, that team almost certainly would be a loser.”
The numbers confirm that verdict. All told, only eight detainees have been convicted by the MCs, and four of those convictions have been overturned, three fully and one in part. Compare that paltry record to the nearly 500 convictions rendered by civilian federal courts on terrorism-related charges.
Colonel Davis is right: “we need to … end this litany of failure” in the MCs.
 On May 8, 2015, the defense filed its Renewed Motion to Dismiss for Unlawful Influence. However, the basis for the renewed motion is unknowable, as the papers remain under security review, so they are not yet available.