The Ninth Circuit will hear oral argument in Al-Nashiri v. MacDonald on June 3. The civil appeal challenges the power of the Military Commissions’ Convening Authority to prosecute Al-Nashiri before a military tribunal at Guantanamo. Seeking to participate in the argument is a group of retired military admirals, generals and colonels, who earlier filed a brief as amici curiae. The signatories included Colonel Morris Davis, the former Chief Prosecutor at the Office of Military Commissions; and Rear Admiral Don Guter, the Navy's Judge Advocate General from 2000-2002.
Among other things, Al-Nashiri argues that his alleged conduct did not occur in the context of and associated with a conflict controlled by the laws of war---as it had to, in order to proceed under the 2009 Military Commissions Act (MCA). By approving the commission case, the theory goes, the Convening Authority exceeded his authority. The district court dismissed the complaint, reasoning (among other things) that it was barred by Section 7 of the 2006 MCA; and that the Convening Authority was immune from suit.