You've likely heard: Abd al-Rahim al-Nashiri, a Guantanamo detainee facing capital military commission charges, last month mounted a new habeas challenge in the district court for D.C. A few key documents in that litigation were made available yesterday, including Al-Nashiri's motion for a preliminary injunction, which aims to stop his military trial pending resolution of the habeas claim; and a supporting Memorandum of Law.
As the latter makes clear, al-Nashiri now seeks to advance, via habeas, roughly the same argument he advanced earlier (and unsuccessfully) before the military judge at Guantanamo and the Ninth Circuit---that no "hostilities" were ongoing in Yemen at the time of al-Nashiri's alleged actions, including his role in the 2000 attack on the U.S.S. Cole; that the United States then explicitly denied the existence of any armed conflict, and held to that view until much later; and that al-Nashiri accordingly cannot be tried by military commission as a matter of law. (The trial is nominally set for late this year.)
The Memorandum of Law opens:
Respondents have asserted the authority to try Petitioner by military commission – and sentence him to death – for crimes they allege he committed during peacetime and in a place where the President affirmed, “America is not at war.” This expansive assertion of military authority violates explicit statutory prohibitions Congress has imposed on what is triable by the military. And it defies 150 years of Supreme Court precedent that has forbidden the military from trying non-service members for crimes that did not occur during and in a theater of war. Petitioner, who is not alleged to have done anything on a battlefield or to have had any role in the September 11th attacks, seeks a writ of habeas corpus because trying him by military commission exceeds the limits Congress and the Constitution have put on the military’s authority to act in place of the courts of law. He asks this Court to enter a preliminary injunction to prevent the irreparable harm that will result if the military tries him for crimes that are not triable at all.
The narrow interim relief sought here is warranted for four reasons. First, there is a high likelihood that Petitioner will succeed on the merits because an offense “is triable by military commission under [the Military Commissions Act] only if the offense is committed in the context of and associated with hostilities.” 10 U.S.C. § 950p(c). As contemporaneous pronouncements by the President and Congress make clear, there was no armed conflict in Yemen at the time of the alleged crimes. Second, Petitioner will suffer irreparable harm if the military commission proceeds against him while his supplemental petition is adjudicated. Third, Respondents will not be harmed by temporarily preserving the status quo while the question of law at the center of this case is resolved. Finally, allowing the military to conduct a criminal trial that transgresses the explicit limits imposed by Congress and the Constitution is decidedly not in the public interest.
This is going to be an interesting and important case---we'll be keeping an eye on it.
Update [5/5/2014]: to be clear, I certainly didn't mean to suggest, with my little summary above, that commission or federal court rulings preclude or otherwise foreclose a review of Al-Nashiri's petition. Indeed, neither the Ninth Circuit nor the military commission evaluated his claims on the merits, both courts electing instead to bat away the detainee's challenges on (different) procedural grounds.
As for whether the habeas court or the D.C. Circuit can take up the case now, my own thinking mostly tracks Steve's; as he explains over at Just Security, the D.C. Circuit's Aamer ruling, together with Al-Nashiri's invocation of habeas, suggest that Al-Nashiri's jurisdictional arguments will be stronger, this time around, than they were before the Ninth Circuit.