‘Unlawful Influence’ and the Al-Nashiri Military Commission at Guantánamo Bay

Abstract

This short essay is based on remarks made on 21 September 2016 at the Asia Pacific Military Justice Workshop held at the National University of Singapore Faculty of Law. The author discusses his perceptions as a designated observer for the National Institute of Military Justice at the military commissions held at the U.S. Naval Station at Guantánamo Bay, Cuba. He was sent to monitor oral argument of one of the most significant pre-trial motions in the commission trying Abd al-Rahim Hussein Muhammed al-Nashiri, the alleged mastermind of the USS Cole bombing. Al-Nashiri alleged unlawful influence by the civilian Convening Authority of the commission and moved to dismiss his prosecution with prejudice. The author examines the origins, argument, and resolution of this motion in the larger context of the commissions themselves, concluding that Guantánamo exemplifies the danger that U.S. State Department Legal Advisor William Taft perceived in “the temptations to cut corners.”

Keywords: Richard Kammen; Mark Martins; United States military commissions; Vance Spath; Al-Nashiri; unlawful command influence; Vaughn Ary; unlawful influence; Guantanamo Bay; Brian Mizer; USS Cole