What, if anything, do developments in the military commission case of United States v. al-Nashiri portend for Al-Nashiri v. MacDonald, an ongoing, civil challenge to the accused's war crimes prosecution? The question arises in letters filed in the civil case, one by the United States last Friday, and another by al-Nashiri's lawyers today.
Some quick background: in an order dated January 15, Judge James Pohl denied a defense motion to dismiss, which attorneys had filed in al-Nashiri's military case at Guantanamo. The essence of the ruling was to reject a tripartite claim by the accused's lawyers: first, that his alleged offenses had not been committed "in the context of and associated with hostilities," as required by the Military Commissions Act; second, that the military commissions' Convening Authority, retired Vice Admiral Bruce MacDonald, had referred the charges against al-Nashiri anyway, and thus transgressed a statutory limitation on his power; and third, that the case therefore had to be tossed out. (Judge Pohl's handiwork has been critiqued. For one example, see this post by Kevin Jon Heller, over at Opinio Juris.)
The January 15 ruling matters most for al-Nashiri's military trial. But it also could have implications for MacDonald, too, in which the accused sued the Convening Authority in federal court---and claimed, a la al-Nashiri's later-filed motion to dismiss, that no armed conflict was ongoing at the time of his alleged actions, and that MacDonald therefore lacked the power to approve war crimes charges in the first place. The district judge threw out al-Nashiri's civil lawsuit on statutory, sovereign immunity, and abstention grounds; his appeal has been briefed and now awaits argument before the Ninth Circuit.
In the meantime, it remains to determine what effect, if any, the recent "hostilities" order will have on the civil appeal. Here's the United States' view, as expressed in its letter:
Pursuant to Federal Rule of Appellate Procedure 28(j), we write to provide the Court with an order issued by the military judge in plaintiff’s military commission case on January 15, 2013. The order denied plaintiff’s motion to dismiss the military commission case in which plaintiff argued that the Convening Authority should not have referred charges against him because the offenses alleged were assertedly not committed in the context of and associated with
Plaintiff asserted the exact same challenge in the district court proceedings at issue in this appeal, and the military judge’s January 15 ruling shows that the military commission system is fully capable of resolving that challenge. If plaintiff disagrees with the military judge’s order, he may appeal it after any conviction to the Convening Authority, 10 U.S.C. § 950b, the U.S. Court of Military Commission Review, id. §§ 950c, 950f, and the D.C. Circuit, which has “exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission,” id. § 950g(a). The Supreme Court may review the D.C. Circuit’s decision by writ of certiorari. Id. § 950g(e); 28 U.S.C. § 1254.
As our brief explained (Def. Br. 13-44), the district court properly dismissed plaintiff’s challenge to his military commission proceedings after concluding that the court may not—and, at a minimum, should not—interfere with Congress’s finely wrought scheme for administrative and judicial review of military commission decisions. Indeed, Congress has explicitly and implicitly barred judicial review of military commission decisions other than the judicial review by the D.C. Circuit authorized by 10 U.S.C. § 950g. See 28 U.S.C. § 2241(e)(2) (explicit bar); 10 U.S.C. §§ 950b-950g (implicit bar). In any event, considerations of comity make it appropriate for a court to abstain from interfering with the ongoing military commission proceedings here, which were created by Congress to handle claims like plaintiff’s.
The plaintiff rejoins:
Last Friday, Defendant-Appellee provided this Court with his commission’s order on the issue at the center of this case. He argued that it shows the “commission system is fully capable of resolving that challenge[.]” If one reviews this order, however, one sees that after citing virtually no authority, all the commission holds is that MacDonald’s bare decision to order it into existence constitutes a non-justiciable “determination that hostilities existed … on the dates
of the alleged offenses[.]” AE104F, Order, at ¶4(b)(2) (Jan. 15, 2013).
If compliance with federal and constitutional law can be bootstrapped so easily, then Guantanamo truly remains a law-free zone. This order’s reasoning is so tortured and its deference to MacDonald is so absolute that all it shows is that the commission system is self-consciously committed to ratifying what MacDonald has ordered it to do and pushing all questions about its basic legality off to the Article III courts. Id. ¶3(d).
Even the government recognizes that federal court review is fundamentally different in kind from the commission process. In the Hamdan case, MacDonald’s predecessor convened a commission to try “Material Support for Terrorism,” claiming it was a war crime. The commission ratified this judgment, as did MacDonald and the CMCR on post-trial review. But as soon as Hamdan went before an Article III court, the government abandoned the arguments on which it had consistently prevailed. Even with this change, the D.C. Circuit vacated Hamdan’s commission for reasons it described as “quite evident.” Hamdan v. United States, 696 F.3d 1238, 1251 (D.C. Cir. 2012).
Without this Court’s intervention, Nashiri will endure a pointless but taxing capital trial in a system that will continue to proceed on an “ask questions later” basis. In previous cases where Guantanamo’s legal process had similarly proven itself neither neutral nor adequate, the Supreme Court rejected far more substantial arguments than MacDonald has given this Court for deferring judicial review. Boumediene v. Bush, 553 U.S. 723 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The commission order demonstrates beyond cavil why this Court must remand for a hearing on the merits.