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September 1, 2016
  In Re: Al-Nashiri
Headline: Divided D.C. Circuit allows military commission trial of U.S.S. Cole mastermind to proceed.

Area of Law: Military Commissions Act

Issue Presented: Whether a Guantanamo detainee can make a pre-trial challenge to a military commission's authority to hear his case under the Military Commissions Act (MCA) on the basis that his crimes were not associated with hostilities.

Brief Summary: Abd Al-Rahim Hussein Muhammed Al-Nashiri, a Saudi national, is accused of orchestrating the bombing of the U.S.S. Cole in 2000, the attempted bombing of the U.S.S. The Sullivans in 2000, and the bombing of French supertanker M/V Limburg in 2002. Al-Nashiri has been in U.S. custody since 2002 and detained at the Guantanamo Bay, Cuba naval base since 2006. He has brought several challenges to his detention and the military commission proceedings against him. See In re Al-Nashiri, 791 F.3d 71 (2015).

In the present case, Al-Nashiri challenged the authority of the commission to hear his case. The MCA provides that military commissions have jurisdiction to try "alien unprivileged enemy belligerent[s]," id. § 948c, for "any offense made punishable" by the MCA, "whether such offense was committed before, on, or after September 11, 2001." Id. § 948d. The statute then lists 32 offenses that are "triable by military commission," id. § 950t, and provides that "[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities." Id. § 950p(c). Al-Nashiri asserted that the military commission had no jurisdiction over him because his offenses were not "committed in the context of or associated with hostilities." He raised that argument unsuccessfully in a motion to dismiss before the commission in 2012. In 2014, he sought a habeas corpus petition asking the U.S. District Court for the District of Columbia to enjoin his military commission trial and enter a declaratory judgment that his conduct did not occur in the context of hostilities. He also sought a preliminary injunction staying the commission trial pending the outcome of the habeas petition. The district court, relying on the abstention principles established in Schlesinger v. Councilman, 420 U.S. 738 (1975), denied the petition, finding that ruling on Al-Nashiri's claim would unduly interfere with the proceedings of the military commission. Al-Nashiri appealed and also petitioned the U.S. Court of Appeals for the District of Columbia Circuit for a writ of mandamus to dissolve the military commission.

A divided panel of the D.C. Circuit denied both petitions, concluding that Councilman was the appropriate abstention standard. That case extended the doctrine of abstention - that federal courts should not enjoin state criminal proceedings as long as the defendant has an adequate legal remedy in the form of a trial and a direct appeal - to courts-martial, holding that although the "peculiar demands of federalism" that underpin the careful balance between the power of state and federal courts were not applicable to courts-martial, "factors equally compelling" justified allowing courts-martial to run their course without interference from federal courts. Applying Councilman, the D.C. Circuit concluded that the military commission trial should proceed as long as 1) the system enacted by the MCA to adjudicate Al-Nashiri's guilt would adequately protect his rights and 2) an "important countervailing interest" justified the decision to avoid the district court adjudicating a pretrial challenge to the military commission's subject matter jurisdiction.

The panel rejected Al-Nashiri's argument, based on Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Councilman standard was inapplicable to military commissions. In Hamdan, the U.S. Supreme Court concluded that Ex parte Quirin, 317 U.S. 1 (1942), rather than Councilman, was the appropriate abstention standard for a pre-MCA military commission, citing concerns about the fairness of the commission process, which was neither part of the integrated system of military courts nor sufficiently similar to state courts to justify abstention on comity principles. The Hamdan court also found that the "important countervailing interest" in military discipline and the efficient operation of the armed forces was not present, as Hamdan was not a member of the U.S. military and no other such interest had been identified.

The majority, while acknowledging that Al-Nashiri, like Hamdan, was indisputably not a member of the armed forces, determined that "much has changed since Hamdan" and that both Councilman criteria had been met in the present case. It concluded that the review process established by the MCA, enacted by Congress explicitly to address the fairness concerns identified in Hamdan, would adequately protect Al-Nashiri's rights because it was virtually identical to the review system for courts-martial at issue in Councilman. While the majority conceded that the evidentiary and procedural rules for military commission trials differed from those for courts-martial, it determined that they still included a number of significant safeguards, and it noted that Al-Nashiri would ultimately have the right to appeal to an Article III court, a protection not afforded in a court-martial.

Turning to the countervailing interest, the majority found that in creating the MCA process, Congress and the President had made a judgment that national security concerns were not served by using ordinary federal court processes to try certain "enemy belligerents." The majority concluded further that by providing for direct review by an Article III court of any conviction in a military commission, Congress had implicitly instructed that judicial review should not take place before the commission process was complete. The majority concluded that national security is an arena in which the political branches receive wide deference and that comity prevents federal courts from interfering in such judgments, just as it prevents interfering with the functions of state and military courts.

Finally, the majority determined that nothing in the particular circumstances of Al-Nashiri's case made abstention inappropriate. Although noting that it found his allegations that he had been tortured while in custody "deeply troubling," the majority concluded that those claims did not provide any reason to fear that he would not be given a fair hearing in the military commission.

Judge Tatel dissented, arguing that while the question of whether Councilman's abstention doctrine should be extended to military commissions was a difficult one, significant differences between military commissions and courts-martial undermined the case for abstention, particularly in the circumstances of the present case.

For the full text of the opinion, please see

Panel: Tatel, Griffith, Sentelle

Argument Date: February 17, 2016

Date of Issued Opinion: August 30, 2016

Docket Number: 15-1023

Decided: Affirmed.

Counsel: Michel D. Paradis and Richard Kammen for appellant.

Joseph F. Palmer, Benjamin C. Mizer, Matthew M. Collette, Sonia K. McNeil, Michael Shih, and John F. De Pue for appellee.

Author of Opinion: Griffith

Dissent by: Tatel

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 09/01/2016 12:13 PM     DC Circuit  

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