It’s clear from his post this morning that my friend Peter Margulies believes that Al-Nashiri’s new habeas challenge to his trial by military commission, which rests on the claim that the United States was not involved in an armed conflict with al Qaeda at the time of his alleged crimes, is without merit. Unfortunately, Peter’s view of the merits colors his analysis of the threshold question I addressed yesterday at Just Security, namely, whether the D.C. district court has the power to even reach the merits. Peter says no, on both jurisdictional and abstention grounds (and then explains why he finds Nashiri’s merits claim unconvincing in any event). In the short reply that follows, I aim to clarify the points of departure between us on jurisdiction and abstention, and explain why they militate in favor of my—and not Peter’s—conclusion. The merits of Nashiri’s claim (whether there was an “armed conflict” at the time the USS Cole was attacked) are no doubt tricky; there’s just little question that the merits ought to be reached.
I. The District Court’s Jurisdiction
On jurisdiction, Peter writes that “Al-Nashiri shouldn’t succeed, even if one concedes that the DC Circuit was right in Aamer to hear a habeas challenge to forced-feeding procedures for Gitmo hunger strikers (I agree the court was correct but on narrower grounds than those offered).” Aamer, he writes, held “that the Supreme Court’s Boumediene decision struck down all of the MCA’s limits on habeas, including those seeking relief other than outright release.” The problem, Peter appears to suggest (but never explicates), is that it’s not clear that Nashiri’s claim is the kind of claim to which Aamer reopens the federal courts’ doors.
If this is Peter’s view, it’s easily debunked. As I wrote back in March, Aamer clearly holds that Boumediene got rid of 28 U.S.C. § 2241(e)(1)—the habeas-stripping provision of the 2006 MCA; the only question is whether Nashiri could have brought his suit under the federal habeas statute as it existed prior to the enactment of the provision Boumediene invalidated. But, leaving aside the merits of such a challenge, there’s just no question that the federal courts had (and still have) jurisdiction under 28 U.S.C. § 2241(a) to entertain pre-trial habeas petitions raising colorable challenges to the assertion of military jurisdiction. The more interesting question is whether (and when) they ought to abstain from hearing such claims (which I’ll get to in a moment). And as I wrote yesterday, we need look no further than Hamdan I itself—where Hamdan successfully brought a pre-trial challenge to his commission that was grounded in the pre-MCA (and pre-Detainee Treatment Act) federal habeas statute. Not even the D.C. Circuit, which otherwise rejected Hamdan’s legal claims out of hand, objected to the federal courts’ jurisdiction to hear Hamdan’s case.
Thus, to believe that the district court lacks jurisdiction over Nashiri’s claim, Peter must either believe that (1) Aamer doesn’t actually restore the pre-MCA status quo; or (2) the pre-MCA status quo (which Aamer restored) didn’t encompass pre-trial challenges to military jurisdiction. Color me unconvinced.
II. Councilman Abstention
The harder question is the one to which Peter rightly devotes more space, namely whether the district court ought to abstain from hearing Nashiri’s claim under Schlesinger v. Councilman. Peter’s analysis focuses on footnote 16 from Hamdan I, where Justice Stevens explained that “we do not apply Councilman abstention when there is a substantial question whether a military tribunal has personal jurisdiction over the defendant.” Insofar as Nashiri doesn’t dispute that he is a belligerent, Peter argues, he is not entitled to avail himself of this “exception.”
The problem with Peter’s analysis is that it reads this sentence from a footnote in Hamdan I out of context. In fact, Hamdan I is a specific application of a far deeper principle articulated in a long line of cases with respect to when abstention and/or exhaustion of military remedies is unnecessary. As the younger Justice Harlan explained in Noyd v. Bond, “it appear[s] especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all.” And as Judge Randolph summarized with regard to the D.C. Circuit’s jurisprudence in Hamdan I, “Even within the framework of Councilman and New, there is an exception to abstention: ‘a person need not exhaust remedies in a military tribunal if the military court has no jurisdiction over him.’ The theory is that setting aside the judgment after trial and conviction insufficiently redresses the defendant’s right not to be tried by a tribunal that has no jurisdiction.”
Of course, one ground for contesting “the right of the military to try” a defendant is that his status bars a military trial (e.g., a civilian objecting to a court-martial). But that’s hardly the only ground upon which a “right not to be tried” might rest. Thus, a commission defendant with a viable double jeopardy claim would be entitled to block his second trial via habeas before that trial took place. So, too, a commission defendant with a viable claim that the commission lacks subject-matter jurisdiction—which, I gather, is the gravamen of Nashiri’s complaint. Indeed, that was the claim in Hamdan I from which the Supreme Court did not abstain, with a plurality specifically holding that the commission lacked jurisdiction to try Hamdan for conspiracy, regardless of his status. I don’t mean to get lost in the doctrinal weeds; the larger point here is that the purpose of Councilman abstention is to shuffle non-jurisdictional objections to military trials into the military system itself. But Councilman specifically noted the exception for jurisdictional challenges even while demanding abstention in other cases, and nothing in the Supreme Court’s analysis in Hamdan I could fairly be read to narrow the appropriate scope of Councilman abstention.
Peter responds that “Al-Nashiri’s case is distinguishable, since in the MCA Congress expressly authorized commissions.” Thus, abstention must be that much more appropriate when it’s in favor of a carefully constituted, comprehensive system. Indeed, this is the argument that two district courts relied upon in 2008 in abstaining from deciding pre-trial challenges to the MCA commissions in the Hamdan and Khadr cases. But this argument is not only unsupported by precedent, it’s also analytically incoherent.
With regard to precedent, the fountainhead cases for not deferring—the 1950s era cases in which the military tried to subject civilians and former servicemembers to trial by court-martial—also involved “expressly authorized” military courts (to wit, courts-martial under the Uniform Code of Military Justice). As those cases show, Councilman abstention is not about whether the military courts are expressly authorized; it’s about whether the defendant has a right to not be tried by a court potentially acting without jurisdiction, regardless of how it’s constituted. Of course, an irregular court (such as the commission in Hamdan I) will generally be far more susceptible to such challenges than a regularly constituted body (such as the post-MCA commissions). But that’s more because Congress is less likely to act unlawfully than a military commander than it is because we blindly defer to any Act of Congress. More generally, the reason why abstention is inappropriate in such cases has nothing to do with deference to Congress or the Executive, and everything to do with the fact that trial by a jurisdiction-less court is really just another form of executive detention, the legality of which doesn’t depend upon the verdict (that is, it’s unlawful even if the defendant is acquitted). Thus, so long as Nashiri’s claim is a colorable challenge to the jurisdiction of the commission (which Peter does not appear to dispute), Councilman abstention is inappropriate even if Nashiri is ultimately wrong on the merits.
III. Abstaining in Favor of… What, Exactly?
Finally, I’d be remiss in not pointing out one more serious flaw in Peter’s argument: reality. The animating premise behind Councilman is that, in most cases, military courts are in a relatively better position to provide experienced, efficient, and, where necessary, expedited review of the defendant’s claims—and that, by contrast, collateral review before generalist judges in the civilian courts is inefficient, time-consuming, and expensive. Thus, in explaining why he was abstaining from resolving Hamdan’s pre-trial challenge to his post-MCA commission in 2008, D.D.C. Judge Robertson concluded as follows:
The eyes of the world are on Guantanamo Bay. Justice must be done there, and must be seen to be done there, fairly and impartially. But Article III judges do not have a monopoly on justice, or on constitutional learning. A real judge is presiding over the pretrial proceedings in Hamdan’s case and will preside over the trial. He will have difficult decisions to make, as judges do in nearly all trials. . . . If the Military Commission judge gets it wrong, his error may be corrected by the CMCR. If the CMCR gets it wrong, it may be corrected by the D.C. Circuit. And if the D.C. Circuit gets it wrong, the Supreme Court may grant a writ of certiorari.
That’s all well and good, but Judge Robertson’s opinion was filed on July 18, 2008—almost six years ago. And the en banc D.C. Circuit is still sitting on a direct appeal raising the central question Judge Robertson abstained from deciding in Hamdan (i.e., whether commissions can try non-international war crimes based upon pre-MCA conduct). Thus, even if one was otherwise sympathetic to Peter’s arguments for abstention as an abstract proposition, I cannot fathom how one can argue with a straight face for abstention in favor of these commissions—unless the goal is not actually efficient resolution of these questions, but indefinitely delayed resolution thereof.