I hope you aren’t too sick of reading about Abd Al-Rahim Hussein Muhammad Abdu Al Nashiri, ’cuz there’s more. No, this isn’t from his military commission case. It’s from his civil case against hizzoner, the Convening Authority, in federal court in Washington state.
Nashiri–or, to be precise, his lawyers–filed a complaint back in November against Retired Vice Admiral Bruce MacDonald, the Convening Authority of military commissions in Guantanamo, over his orders to try Al-Nashiri capitally.
Al Nashiri summarized his complaint as follows:
1. The Defendant has issued orders to create a military commission empowered to try Plaintiff and recommend a death sentence. These orders violate the Constitution and the terms of the statute under which they were issued. They are therefore ultra vires and void. Plaintiff brings this action for a declaratory judgment pursuant to 28 U.S.C. § 2201 for the purpose of determining a question of actual controversy between the parties.
2. A military commission can only be created to try offenses that occurred during a time of and in a theater of war. Yet, all that Defendant’s orders allege is that Plaintiff is a criminal suspect for crimes that occurred in Yemen in 2000 and 2002. These alleged crimes predated the existence of any armed conflict and occurred far from any battlefield.
3. In order to decide this case, this Court does not need to conduct a trial or make factual findings about when or whether historical events in Yemen had the character of a war. As a matter of well-established constitutional law, whether hostilities should be recognized to exist and whether the laws of war should apply to them are political questions that only the political branches can answer.
Ret. Vice Admiral MacDonald filed a motion to dismiss in March for lack of subject-matter jurisdiction, arguing that Nashiri’s complaint should be heard in the military commission and on appeal in the D.C. Circuit Court, not in federal district court. He summarizes:
Despite the fact that Al-Nashiri has the right to raise his objection to the military commission’s jurisdiction at any time during the commission’s proceedings, and thereafter to seek review of the commission’s determination of jurisdiction on appeal to the D.C. Circuit, he has not pursued this argument within the commission itself. Instead, Al-Nashiri filed this lawsuit against Vice Admiral (Ret.) Bruce MacDonald (the Defense Department official who convened the commission to try Al-Nashiri), seeking a declaration that because of the alleged defect in the commission’s jurisdiction, Admiral MacDonald acted in excess of his statutory authority, and in violation of the Constitution, when he ordered that Al-Nashiri be tried by a military court. It is unclear for what purpose Al-Nashiri might use such a declaration, except perhaps as support for a motion to be filed with the commission to dismiss the charges against him.
It is clear, however, that Congress meant for these claims to be heard in the first instance by the military commission and on appeal in the D.C. Circuit—not in federal district court. Not only has Congress expressly vested the commission with the competence and responsibility to determine matters of its own jurisdiction, and vested exclusive jurisdiction in the D.C. Circuit to review the commission’s judgments, it has also expressly provided that “no court, justice, or judge shall have jurisdiction to hear or consider any . . . action against the United States or its agents relating to any aspect of the . . . trial” of a detained enemy combatant such as Al-Nashiri. 28 U.S.C. § 2241(e)(2). Even if § 2241(e)(2) did not expressly bar this action, the Court would still lack subject-matter jurisdiction, as no waiver of sovereign immunity allows Al-Nashiri to litigate his claims in this forum instead of in the commission itself, as Congress intended.
Even if this Court possessed subject-matter jurisdiction to hear Al-Nashiri’s claims, it would nonetheless have to decline his request to short-circuit the congressionally mandated military commission process. Well-established principles of comity articulated by the Supreme Court in Schlesinger v. Councilman, 420 U.S. 738 (1975), instead require that this Court abstain from exercising equitable jurisdiction in this case. First, the injury Al-Nashiri has alleged, the burden of defending himself in a forum whose jurisdiction he contests, is no different or greater than the rigors of trial faced by any criminal defendant, and is insufficient as a matter of law to justify a federal court’s intervention in an ongoing criminal prosecution. Second, Congress designed the military commission system so as to ensure the vindication of Al-Nashiri’s rights, through procedural protections that guarantee the fundamental fairness of the proceedings, and appellate review in the D.C. Circuit if Al-Nashiri is convicted. Finally, the subject-matter jurisdictional issues that Al-Nashiri asks this Court to resolve concern matters, falling within the expertise of the military commission, that Congress intended the commission to address in the first instance and the D.C. Circuit to address on appeal—a legislative allocation of responsibility that a federal court is bound in equity to respect. Abstention under Councilman is therefore required.
Al Nashiri filed a request for judicial notice and responded to the motion to dismiss last week. His request for judicial notice was for three facts:
Congress first determined that hostilities commenced in Yemen no earlier than 2004;
The President first determined that hostilities commenced in Yemen no earlier than September 19, 2003; and
September 19, 2003 is the earliest date on which hostilities in Yemen could have commenced.
Al Nashiri’s response to the motion to dismiss relayed three counter arguments:
First, Admiral MacDonald claims he is entitled the protection of a statutory bar on actions against the United States that was contained in Section 7 of the Military Commissions Act of 2006, 120 Stat 2600 (“2006 Act”). Section 7 was struck down by the Supreme Court in Boumediene v. Bush, 553 U.S. 723 (2008), but Admiral MacDonald claims that the Court implicitly left a subsection in place. Even assuming that parts of Section 7 survived, Admiral MacDonald fails to show how the claims against him fall within its coverage. (Pp. 6-13, infra).
Second, Admiral MacDonald claims he is entitled to sovereign immunity. This ground must also fail because when a government employee is sued in his individual capacity for acts that are ultra vires or unconstitutional, he “is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden.” Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682, 690(1949). (Pp. 13-24, infra).
Third, Admiral MacDonald requests the benefit of the abstention doctrine articulated in Schlesinger v. Councilman, 420 U.S. 738 (1975). While this is his most candid plea for deference, it is equally unavailing. Councilman abstention is a function of judicial comity toward the military’s regulation of the good order and discipline of its ranks. The Supreme Court has never extended Councilman to the military trial of non-service members and reaffirmed just six years ago the “compelling interest in knowing in advance whether [an accused] may be tried by a military commission that arguably is without any basis in law and which operates free from [the limits of Congressional law].” Hamdan v. Rumsfeld, 548 U.S. 557, 590 (2006). (Pp. 24-31, infra).
Oral argument has been scheduled for May 3rd before Western District of Washington Judge Robert J. Bryan.