Terrorism Trials: Military Commissions

Nashiri v. MacDonald Dismissed

By Benjamin Wittes
Friday, May 11, 2012, 7:11 AM

The case of Nashiri v. MacDonald has been dismissed. You may recall that Abd Al-Rahim Hussein Muhammed Al-Nashiri brought a suit against the military commissions Convening Authority, Bruce MacDonald in U.S. District Court in Washington state, claiming that the military commission in which he is being tried is unlawfully constituted since the alleged conduct all predates the start of armed conflict. Judge Robert Bryan writes:

This Court does not have subject matter jurisdiction to decide Al-Nashiri’s claims because of the operation of 28 U.S.C. § 2241(e)(2) and because MacDonald has sovereign immunity. Further, even if this Court had subject matter jurisdiction, under the principles of abstention announced in Councilman, the Court should not exercise equitable jurisdiction. In so doing, this Court is recognizing the role of each of the branches of government in these cases: Congress in creating the commissions, the executive in conducting them, and the judiciary in reviewing their judgments. Al-Nashiri fails to show that he cannot or will not raise the issue of the military commission’s jurisdiction within that tribunal, or that he is in some manner barred from appealing a decision on that issue to the Article III courts consistent with the MCA. Al Nashiri’s case should be dismissed.