Retired generals, admirals urge Supreme Court to hear Guantánamo case

In this April 26, 2014 file photo, people walk on the steps of the Supreme Court in Washington.
In this April 26, 2014 file photo, people walk on the steps of the Supreme Court in Washington. ASSOCIATED PRESS

A dozen retired admirals and generals, including the Marine who opened the Guantánamo prison, are urging the U.S. Supreme Court to take up the case of Abd al Rahim al Nashiri, the Saudi accused of orchestrating the USS Cole bombing who argues the military commissions that seek his execution are illegitimate.

Nashiri, 52, is in pretrial hearings at Guantánamo in his death-penalty case, accused in the Oct. 12, 2000 bombing. He was captured in 2002, kept in the CIA’s secret prison network and intentionally subjected to cruel treatment, including waterboarding and confinement to a coffin-like box, “enhanced interrogation techniques” that his attorneys call torture.

The retired officers argue that the justices should decide the threshold issue of the “legitimacy and legality” of Nashiri’s military commission now — rather than after a conviction, as Congress intended — for national security reasons.

The justices are not expected to decide whether to hear the case until after the summer recess.

EARLIER COVERAGE: In a first, former CIA captive appeals Guantánamo trial to Supreme Court

“An unlawful military trial is a powerful weapon for extremist groups, further reinforcing their narrative of a hypocritical and amoral United States at war with Islam,” lawyers write for the general and admirals in the 22-page filing released Thursday. “Clearly demonstrating the legality of military commission trials is crucial to maintaining the legitimacy of the counterterrorism mission and protection of U. S. national security. Allowing a trial of questionable legality to proceed would come at a significant strategic cost.”

Marine Brig. Gen. Michael Lehnert, the U.S. general in charge of the detention mission, answers questions from reporters at the Guantánamo Navy base on Saturday, March 16, 2002. BILL HABER ASSOCIATED PRESS

Retired Marine Maj. Gen. Michael Lehnert, the first commander of Camp X-Ray, and retired Army Brig. Gen. Stephen Xenakis, a psychiatrist who has met with Guantánamo captives, are among those who signed the briefs. The group, ranging from brigadiers to lieutenants general, also included the Navy’s two top uniformed lawyers in the aftermath of the Sept. 11, 2001 attacks: retired Rear Adms. Don Guter and John Hutson, who were at former President Barack Obama’s side on Jan. 22, 2009 when he signed his ill-fated order to close Guantánamo.

READ THE BRIEF: Abd al Rahim al Nashiri v. Donald J. Trump

One issue is whether the United States was at war with al-Qaida when suicide bombers attacked the warship off Aden, Yemen, killing 17 American sailors and wounding dozens of others.

“Virtually no one thought, and the United States never claimed, that at the time of the charged offenses the United States was in an armed conflict in Yemen governed by the extraordinary rules of war,” the retired officers argue. “It was only in the context of the executive branch’s later attempts to try [Nashiri] via military tribunal that it began to retroactively claim that there had been an armed conflict.”

Dr. Stephen Xenakis, a retired brigadier general and military psychiatrist, on Sept. 20, 2016. GEORGE ETHEREDGE NYT

The retired officers also argue that a potentially illegitimate court harms the United States’ ability to argue that, if American service members are taken captive, they should be treated under international law. Lawyers for Nashiri originally asked the court to take the case of Abd al Rahim al Nashiri v. Barack Obama, et al., on Jan. 17. It was filed as a Top Secret document and emphasized the need for Supreme Court intervention because of the captive’s torture.

The amicus filing, siding with Nashiri in favor of pre-tribunal Supreme Court consideration, was submitted at the court Wednesday with a new title: Abd al Rahim al Nashiri v. Donald J. Trump, et al.

The Human Rights First brief invokes a Jan. 6 letter to then President-elect Trump that the organization sponsored — with the signatures of 176 retired admirals and generals — expressing alarm that he campaigned on a pledge to revive waterboarding and urging the Trump administration to comply with domestic and international law in U.S. detainee policy.

“When the legitimacy of military commission trials at Guantánamo Bay is called into question,” the amicus brief says, “there is a direct impact on the U.S. counterterrorism mission. Doubts about the legality of U.S. actions impair relationships with allies and partners who may then withhold crucial assistance, fuel anti-American sentiment about the legitimacy of the overall mission, and provide propaganda victories to extremist groups who exploit U.S. actions to bolster their recruitment.”

The White House has yet to adopt a new detainee policy or add to the prison population at Guantánamo, which this week had 41 captives, 10 of whom have been charged in military commissions.

Carol Rosenberg: 305-376-3179, @carolrosenberg