Appellant's Reply Brief Filed in Al-Nashiri v. MacDonald

By Wells Bennett
Saturday, December 29, 2012, 11:05 AM

On Thursday, lawyers for Abd Al Rahim Hussein Al-Nashiri filed their reply brief in Al-Nashiri v. MacDonald, a civil case now pending before the United States Court of Appeals for the Ninth Circuit.

Al-Nashiri, a defendant before the Guantanamo military commissions, had sued the commissions' Convening Authority, retired Vice Admiral Bruce MacDonald in federal court.  The district judge dismissed his complaint, which alleged (among other things) that MacDonald, in referring charges against Al-Nashiri, had exceeded his authority: none of the counts against him, Al-Nashiri claimed, describe conduct that occurred in the context of and associated with hostilities, as they must in order to proceed under the Military Commissions Act.

From the reply:

All the complaint in this case asks is whether a federal employee broke the law. Did MacDonald violate explicit statutory and constitutional prohibitions against ordering the military to try civilians for crimes that did not occur on a battlefield in wartime? If the answer is yes, then prompt judicial review will reaffirm the rule of law and forestall the distress of a futile capital trial. If it is no, then the cloud of uncertainty hanging over this case is lifted.

The parties agree that a military commission’s sole purpose is to adjudicate cases governed by the law of war. We presented this Court with the relevant public records from 2000 to 2002, which showed that Yemen was not a theater of hostilities at the times relevant to this case. The only thing we would add is that two of the signers of the Retired Officers amicus, which reiterates this fact, were the Judge Advocates General of the Navy from 1997 to 2002 and therefore personally familiar with where the law of war did and did not apply at that time. D.E. 25. MacDonald does not dispute these facts or mount a defense of his actions. Rather, he intimates in a footnote that he treats the existence of hostilities as a question of fact for the commission’s jury to decide.

The common thread through the issues this Court must decide is MacDonald’s repeat assertion that the basic legality of his orders to convene a commission should be left to a process that he personally calls into existence, staffs and controls. Independent judicial review, he maintains, should be limited to the legality of his commission’s final judgment after he approves it for post-trial appeal. Simply put, he asks this Court to affirm when doing so leaves no judicial constraint on his use of commissions to try any crime.

For such judicial abnegation to be justified, MacDonald should have to make a far more compelling showing than the three grounds for dismissal he advocates here. And this Court should be compelled by far more than the district court’s reticence over Guantanamo’s political sensitivity, because “even in times of national emergency-indeed, particularly in such times-it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike.” Gherebi v. Bush, 374 F.3d 727, 730 (9th Cir. 2004).

MacDonald fails to show why §7 of the 2006 Act grants him immunity from suit. Applying §7 after Boumediene v. Bush, 553 U.S. 723 (2008), requires this Court to rewrite its language to achieve an effect that Congress could not have intended. We acknowledge that the D.C. Circuit disagrees and, consequently, MacDonald’s argument for its continuing validity after Boumediene has some legal support. He has no legal support, however, for asserting §7 as a personal immunity. As he concedes, construing §7 as he proposes renders a number of other federal laws superfluous. If Congress wanted MacDonald’s commission orders to be unreviewable, it knew how to legislate that outcome and declined to do so.

MacDonald has walked away from the district court’s erroneous holding that Nashiri must point to a waiver of sovereign immunity to maintain this personal-capacity action. He now argues that the 2009 Act’s provision for post-trial review imposes an implicit exhaustion requirement on suits pertaining to commissions. Assuming this new ground was not waived, an identical argument was rejected in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). MacDonald also offers no explanation for how this argument is different from his abstention claim or why personal-capacity suits should be governed by prudential administrative law doctrines designed to protect the government’s property.

When MacDonald squarely asks for abstention, he again walks away from the district court. Rather than Guantanamo’s political sensitivity, he argues that the relative detail of the 2009 Act should persuade this Court to defer to his commissions in the same manner as it would established court systems. As we show below, however, the commissions in Guantanamo are still so irregular in practice that any comparison to courts-martial, let alone state courts, is fatuous.

The overriding problem is that the claim at issue here, which asks whether MacDonald himself acted lawfully, is so fundamental that its resolution is ill-suited to a process over which his influence is so pervasive. Abstention in this case amounts to an abdication of judicial review over whether a capital trial can be removed from the federal courts to the military on the order of an individual, who by all appearances, is forbidden from having issued it.

The question of whether MacDonald can convene a commission for alleged war crimes that occurred where there was no war is important, narrow, and so far as we are aware unique to this case. All of the other active or completed commissions dealt with recognized hostilities arising out of Afghanistan, Pakistan or the September 11th attacks. This case deals with a time and place where the President assured the nation that “America is not at war.” Br. 18-21.

If MacDonald's orders are lawful, then he should have no difficulty substantiating that fact. This Court should reverse and remand to give him that opportunity so that the military does not put Nashiri through the motions of a gratuitous death penalty trial.