Not only is the al Darbi case curious, but its outcome may greatly complicate Nashiri’s future. Here’s how and why.
On February 5, 2014, the Convening Authority of the Military Commissions referred charges against al Darbi to a commission. All charges involved his major role in the October 2002 attack off the coast of Yemen by an explosives-packed motorboat on the French supertanker MV Limburg, which was under charter to a Malaysian firm and laden with Iranian oil. The strike killed one person, injured a dozen others, and spilled 400,000 barrels of crude oil into the sea. All told, it caused about $45 million in damage, and shipping in the Gulf of Aden temporarily was shut down. But how does al Darbi’s case wind up as a prosecution for war crimes in a U.S. military commission? And were his alleged offenses against non-U.S. property owners and personnel part of the armed conflict between the U.S. and al Qaeda going on at the time? You’ll recall that Nashiri also has been charged with regard to the Limburg attack, and the same questions apply to his case. (See http://justsecurity.org/6807/al-qaeda-armed-conflict-france-malaysia-legal-question-heart-al-darbi-case ) But the cases have taken diametrically opposed routes with regard to those questions.
Despite the questions, only two weeks after the charges against him were referred, al Darbi pleaded guilty. Such a small time window powerfully suggests that negotiations on the plea deal had started well before the referral, and that the timing of the referral and the entry of the plea were orchestrated. In the bargain, al Darbi agreed to cooperate with prosecutors, which almost certainly means that he will testify against Nashiri with regard to the Limburg attack. To ensure such cooperation, his sentencing was deferred for over three years. (See http://justsecurity.org/?s=Al+Darbi+Pleads+Guilty ) Except, that is, for one thing: Judge Spath, who now presides over Nashiri’s military commission case, while facing a defense motion to dismiss all Limburg-related charges which pursued the issues I have described, dismissed them on a different basis altogether. (See AE 168G/AE 241C Order in Nashiri case docket: http://www.mc.mil/CASES.aspx; http://www.miamiherald.com/news/nation-world/world/americas/article1979349.html )
The government—no surprise—filed an appeal of the dismissal order to the Court of Military Commission Review (CMCR). To liven up matters further, Nashiri’s legal team is trying to disqualify two of the three members of the CMCR on technical though important grounds. That effort was turned back by the CMCR, but Nashiri’s team has taken the matter to the D.C. Circuit Court of Appeals. (See http://justsecurity.org/16395/al-nashiri-cmcr-limburg-charges ) Argument of the appeal before the CMCR has been stayed by the circuit court, pending resolution of the disqualification effort. (See http://justsecurity.org/17362/d-c-circuit-postpones-tomorrows-cmcr-hearing-al-nashiri )
One wonders whether, given these developments, al Darbi and his counsel are so happy with their plea bargain, which some predict will result in al Darbi’s being sentenced for 9-15 additional years. (See http://justsecurity.org/?s=Al+Darbi+Pleads+Guilty ) But the same question might be posed to the government lawyers, who accepted a deal banking on having al Darbi as an invaluable witness at Nashiri’s trial for the Limburg charges. No doubt, though, the attorneys for both sides were aware of the legal questions surrounding the military commission’s ability to try the Limburg charges before the deal, and took them into account when making it.
Stay tuned …