WASHINGTON — A federal appeals court on Tuesday refused to halt the military commission trial of a Saudi charged with orchestrating the 2000 attack on the USS Cole that killed 17 U.S. sailors.
The 2-1 ruling said that Abd al Rahim al-Nashiri can’t challenge the commission’s authority to hear his case until after the proceeding has run its course.
Al-Nashiri argued that military commissions only have authority over offenses that take place during an armed conflict.
He said his actions were not war crimes because the U.S. was not officially at war with al-Qaida at the time of the attack.
But the U.S. Court of Appeals for the District of Columbia Circuit said the military court was capable of deciding whether al-Nashiri’s conduct occurred “outside the context of hostilities.”
Writing for the majority, Judge Thomas Griffith rejected arguments that the appeals court should consider the challenge now because al-Nashiri was subject to torture while in U.S. custody. Al-Nashiri was held for several years in secret CIA prisons after his capture in 2002.
Al-Nashiri argued that he was subject to years of brutal interrogation tactics by the same executive branch that now seeks to try him.