A federal appeals court has refused to halt the military commission trial of a Saudi national charged with orchestrating the 2000 attack on the USS Cole that killed 17 U.S. sailors.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 on Tuesday that Abd al Rahim al-Nashiri can't challenge the commission's authority to hear his case until 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 says his actions were not war crimes. He faces a possible death sentence if convicted.

One judge dissented, saying evidence that al-Nashiri was tortured while in U.S. custody warrants hearing his appeal now.

Al-Nashiri has been held at Guantanamo Bay since 2006.