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Media Alerts - In re Al-Nashiri
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June 23, 2015
  In re Al-Nashiri
Headline: D.C. Circuit declines to issue writ of mandamus in Guantanamo inmate's constitutional challenge to composition of the U.S. Court of Military Commission Review (CMCR).

Area of law: Federal Courts; National Security Law

Issue: Whether and under what circumstances a Guantanamo inmate can use a writ of mandamus to challenge the composition of the CMCR.

Brief Summary: In 2011, the Defense Department convened a military commission to try Petitioner, a Saudi national, for his alleged role as mastermind of several al Qaeda bombings. In 2014, a military trial judge dismissed charges relating to one such bombing, and the government appealed that ruling to the CMCR. Petitioner moved to recuse the panel's two military judges on various constitutional grounds. The CMCR denied Petitioner's motion, and Petitioner sought a writ of mandamus in the U.S. Court of Appeals for the D.C. Circuit.

The D.C. Circuit concluded that it had jurisdiction to issue the writ but that to do so under the circumstances would be inappropriate. First, the court concluded that, because the 2009 Military Commissions Act gave the D.C. Circuit "exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission," it could issue a writ of mandamus now to protect its appellate jurisdiction later. The court rejected the government's argument that a jurisdiction-stripping provision of the 2006 Military Commissions Act, section 2241(e)(2), revoked its power to issue writs of mandamus. The court reasoned that its authority under the All Writs Act could not be stripped absent a "clear statement" and cited its decision in Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008), which found significance in 2241(e)(2)'s silence as to the court's remedial powers.

Turning to the propriety of issuing mandamus, the court first found that Petitioner had adequate other means to attain the relief he sought via direct appeal from the CMCR's final judgment. The court rejected Petitioner's argument that a violation of separation of powers would cause irreparable injury, noting that, if Petitioner's constitutional arguments proved correct on appeal, it could vacate the CMCR's decision and fully vindicate Petitioner's rights and the President's and Senate's constitutional powers.

Next, the court concluded that Petitioner had not demonstrated a "clear and indisputable right" to the writ. The court found that the question whether judges on the CMCR are "inferior" or "principal" officers under Appointments Clause jurisprudence was not easily resolved by reference to its precedents and presented several questions of first impression. The answer thus was not so "clear" at this point to warrant issuance of the writ. For the full opinion, please visit

Panel: Henderson, Rogers, and Pillard

Argument Date: February 10, 2015

Date of Issued Opinion: June 23, 2014

Docket Number: 14-1203

Decided: Petition for Writ of Mandamus Denied.

Case Alert Author: Elizabeth Earle Beske

Counsel: Michael D. Paradis and Richard Kammen for Petitioner. John F. De Pue, Steven M. Dunn, and Joseph F. Palmer for Respondent.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

Edited: 06/24/2015 at 08:50 AM by Ripple Weistling

    Posted By: Ripple Weistling @ 06/23/2015 01:33 PM     DC Circuit  

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