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2. Al-Nashiri is charged with, among other things, responsibility for 10/2000 bombing of USS Cole. But Cole bombing pre-dated 9/11...
3. Congress only allowed #GTMO mil. comm'ns to try offenses committed during "hostilities," i.e., "any conflict subject to the laws of war."
4. Al-Nashiri claims that we weren't at war with Al Qaeda in 10/2000, so the military commission lacks jurisdiction over these offenses...
5. But lower courts ducked his claim based on "abstention" doctrine, holding he couldn't raise issue until post-conviction appeal...
6. Even optimistically, Al-Nashiri's post-conviction appeal would not return to the D.C. Circuit before 2024. And if he's right on merits...
7. Then we would have wasted all this time & money on capital trial in a case in which conviction is later tossed for lack of jurisdiction.
8. Moreover, D.C. Cir. ruling would have broader (& deleterious) consequences for abstention doctrine if affirmed: justsecurity.org/wp-content/upl…
9. So even though the substantive issue in Al-Nashiri is only about his case, the procedural issue has implications for all military trials.
10. Given Monday's cert. denial in Al Bahlul, I'm not optimistic. But whatever the answer on merits, isn't there value to resolution _now_?
11. Indeed, like the denial in Al Bahlul, denial in Al-Nashiri would do nothing to resolve uncertainty hanging over the #GTMO trials.
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