Terrorism Trials & Investigations

USG Filings in Al-Nashiri

By Wells Bennett
Friday, May 16, 2014, 1:00 PM

There are two: a cross-motion to hold Al-Nashiri's habeas case in abeyance, pending resolution of his military commission trial at Guantanamo; and a legal memorandum setting forth the government's arguments, both in support of its motion and in opposition to Al-Nashiri's bid to have the habeas court preliminarily enjoin the commission.   You'll find both here, along with other key pleadings we noted earlier.

From the legal memorandum's opening:

Twice before Petitioner has brought—unsuccessfully—arguments virtually indistinguishable from those raised here, both in military commission proceedings, see AE 104F, Order ¶ 4 (Jan. 15, 2013) (Mem. in Supp. of Pet’r’s Mot. for Prelim. Inj., Attach. C), and in  federal court, al-Nashiri v. MacDonald, No. 3:11 cv-5907, 2012 WL 1642306 (W.D. Wash. May 10, 2012), affirmed, 741 F.3d 1002 (9th Cir. 2013). Notably, consistent with those previous results, every federal court that has been asked to enjoin ongoing prosecutions before a military commission convened pursuant to the Military Commission Acts of 2006 and 2009 has declined to short circuit the congressionally mandated process. Rather, each court has held that defendants appearing before these military commissions receive procedural protections and independent appellate review sufficient to protect their rights and, so, face no irreparable injury warranting enjoining an ongoing prosecution. Accordingly, each has abstained under the principles of Schlesinger v. Councilman, 420 U.S. 738 (1975). There is no reason for this Court to do otherwise.

Petitioner Abd Al-Rahim Hussein Muhammed Abdu Al-Nashiri is currently facing trial before a military commission on numerous charges, including murder in violation of the law of war, for his role in several al Qaida terrorist attacks, among them the 2000 bombing of the U.S.S. Cole in which 17 American sailors died. As part of that trial, he is entitled to argue—as he does here that his alleged offenses are not triable by military commission because they did not occur in the context of, or associated with, hostilities. If accepted by the commission—or, on appeal, by either the United States Court of Military Commission Review (“USCMCR”) or the Court of Appeals for the D.C. Circuit—Petitioner’s claims would require that the commission charges against him be dismissed. Consequently, this case falls squarely within the set of cases as to which Councilman instructs that the Court refrain from exercising its equitable jurisdiction. First, as with the military courts-martial system at issue in Councilman, Congress designed the military commission system to ensure the vindication of Petitioner’s rights through procedural protections that guarantee the fundamental fairness of the proceedings. Moreover, unlike the military defendant in Councilman, Petitioner is assured appellate review in an Article III court, the D.C. Circuit, if convicted. Second, the injury Petitioner faces—the burden of defending himself in a forum the jurisdiction of which he contests—is no different or greater than the rigors of trial faced by any criminal defendant, and is insufficient as a matter of law to justify a federal court’s intervention in an ongoing criminal prosecution. Finally, the issue that Petitioner asks this Court to resolve—whether the offenses with which he is charged occurred in the context of, or associated with, a conflict subject to the laws of war—concerns matters on which the military commissions—as the congressionally designated trial forum— possess expertise that can inform any subsequent appellate review in the D.C. Circuit. Congress intended that the military commissions resolve these issues in the first instance, a legislative allocation of responsibility that a federal court is bound in equity to respect. Abstention under Councilman, therefore, is required, and Petitioner’s Motion for Preliminary Injunction should be denied.

Further, because the issues raised in the proposed Supplemental Petition are identical to
those raised in Petitioner’s Motion for Preliminary Injunction, Petitioner’s prayer for relief in the Supplemental Petition would be futile. Therefore, Petitioner’s Motion to Supplement should be denied.

Finally, the same considerations that counsel this Court to abstain from exercising equitable jurisdiction to enjoin the military commission proceedings also counsel that it avoid  other proceedings that require resolution of issues that substantially overlap with issues central to (and thus that could potentially interfere with) Petitioner’s ongoing military commission proceedings. Respondents therefore respectfully move this Court to hold the habeas petition in abeyance, and stay all proceedings in this action, pending completion of the ongoing military commission proceedings against Petitioner and, should he be convicted, any subsequent appeals, as three other judges on this Court have done in similar circumstances.