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UNCLASSIFI
ED
//FOR PUBLIC RELEASE
15 5020 15 1023
Oral
argument not yet scheduled] pi
.
.
1
CJ ri
C t
i t
l asst ICfr
~ t t l t t h ~ u f t S Qlnurf nf
~ > r m ~ l i m ~ i t y
OITiee r
Date
f f ~ . . s
FOR
THE
DISTRICT OF
COLUMBIA
Cl RCUIT
Docket Nos. 15 5020 15 1023
ABD AL-RAIIlM HUSSEIN A L N A S H I R I ~
Appellant
v
BARACK OBAMA et al.
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUI\1BIA
IN RE: ABD AL-RAHIM HUSSEIN AL-NASHIRI
PETITIONER-APPELLANT'S BRIEF
Michel Paradis
Department ofDefense
Military
Commissions Defense Office
162
Defense Pentagon
Washington DC 20301
l.703.696.9490xl 15
Richard Kammen
Kammen Moudy
135 N. Pennsylvania St. Suite 1175
Indianapolis IN 46204
1.3 I 7.643.6009
Counsel or Petitioner-Appellant
UNCLASSIFIED//FOR PUBLIC RELEASE
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U N C ~ A S S I F I E D F O R PUBLIC RELEASE
L1 CERTIFICATE
AS
TO PARTIES,
RULINGS AND
RELATED
CASES
I.
~ P a r t i e s and Amici
Appearing
Below
1. ~ b d Al-Rahim Al-Nashiri, Defendant-Petitioner
2. ~ n i t e d States
of
Ameri
ca
3. ~ B a r a c k Obama, et al., Respondents
'
4.
~ A m i c u s Curiae
Retired
e n e r a l s ~
Admirals & Colonels,
Jam
es
Brosnahan (on brief)
5 ~ A m i c u s Curiae
David
Glazier,
Thomas Mcintosh
on
brief)
II. Parties and
amici
Appearing in this Court
L
Cl B
l ..bd Al-Rahim Hu
ss
ein Al-Nashiri,
Petitioner-Appellant
2. 'tl'1 U.S. Department ofDefense, Respondent
3. (e ) Barack Obama, et al.
Appellees
III. (l:Jl Rulings under Review
~ T h i c a ~ e
consolidated two actions.
The
first is a petition for a writ
of
mandamus and prohibition to the military commission created y Convening Order
J
#11-02 (Sept. 28, 2011).
The
second is
an
appeal from the denial
of
a preliminary
injunction in a habeas case
y
the United States District
Court
for the District
of
Columbia,
Case
No. 08-1207.
This latter decision is reported at
Al Na
s
hir
i v.
Obama 76 F.Supp.3d 218 (D.D.C. 2014).
1
ut E ts/r88ff?IE8
UNCLASSIFIEO//FOR PUBLIC RELEASE
-.
.
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UNCLASSI ED FOR PUBLIC RELEASE
~ O J S W I E
IV. ~ l a
Ca
ses
U)
Petitioner was previously before this Court in Case No. 14-1203.
That
case raised this
Court s
jurisdiction to issue equitable rel
ief via
the All Writs Act,
28 U.S.C.
1651, to military commissions convened under the Military
Commissions Act of 2009,
123
Sta
t
2190 2009). This
Co
urt
s
decision
was
reported as In re Al-Nashiri 791 F.3d
71
D.C. Cir. 2015).
Dated:
November 20, 2015
By:
Isl Michel Paradis
Counsel/or Petitioner
ffCMSSifl EB
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UNCLASSIFIED//
FOR
PUBLIC RELE
AS
E
l9f
0 b A 8 ~ U F I B 8
~ B L E
OF CONTENTS
~ T a b l e ofAuthorities ............................................................................................ v
~ G l o s s a r y
of Terms ............................................................................................... x
t:J}i iJu risdictional Statement .................................................................................. xi
~ l s s t i . e s Presented ................................................................................................xii
~
Statement
of
the Case .......................................................................... ............. 1
U)
Summary
of
Argument ....................................................................................
7
E: lJ)
i \rgument ............................................... . .. . ...... ..........................................3
I. (U) Standard of Review ................................................................................ 30
II.
~
a s h i r i
right
not
to be tried
by
a
military
commission
is
clear
because Ye
men was not
a theater of hostilities
at
any time
relevant
to
the
allegations against
h
im
. .......................................................................................
32
A. ~ h e Department of Defense may n
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l
@ SJ
i
U
3 5
V.
~ h Di
strict Court
abused its
discretion
when it denied injWlctive
relief without a reasoned opinion .......................................................................
57
A. ~ h e district court's failure to decide
the
request for
injunctive relief on the merits was clear error ................................................
57
B
~ r a n t i n g
a cross-motion for a stay in order to moot a request
for a
preliminary injunction is clear error. ......................................................
59
C.
~ h e
district court
erred in
extending equitable abstention
doctrines where they do not apply .................................................................. 59
C
I
onclus1on
........................................................................................................ 6
~ e r t i f i c a t e
o
Service 63
~ e r t i f i c a t e
of Compliance with Rule 32(a) ................................................... 64
~ Statutory Regulatory Addend um ............................................................ a-1
JV
t f8Js 188IFlf98
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UNCLASSI ED//FOR PUBLIC RELEASE
~ B L OF
AUTHORITIES
*Authorities upon h i c h Petitioner chiefly relies
are marked
with
an
asterisk.
Cases
Exparte Quirin, 317 _U.S. 1 1942) ....................................................35,45, 54, 55
*Grisham
v.
Hagan,
361 U.S. 278
1960) .................................................. 35,
48, 49
*Hamdan v. Rumsfeld, 548 U.S. 557 2006)..... 29, 33, 34, 38, 41, 45, 50, 54, 56, 61
Reid v.
Covert, 354 U S 1 1957) ......................................................................... 34
*The
Prote
ctor, 79 U.S. 700 1871) ......................................................... .............. 36
Aamerv. Obama,
742F.3d
1023 D.C. Cir.
2014) .................................................30
Abney
v.
United States, 431
U.S.
651 1977)
...................................................
44,45
Al-Bihaniv. Obama,
590 F.3d 866 D.C. Cit. 2010) ........................................ 36, 38
Al-Nashiri
v.
NlacDonald, 741F.Jd1002 9th Cir. 2013) ............................. : ....... 26
Al-Nashiri
v.
Obama,
76
F.Supp.3d 218 D.D.C. 2014) ................. 26, 52, 58, 59, 60
Amazon.com v. Barnesandnoble.com, 239 F.3d 1343 Fed. Cir. 2,001) ...............
57
Bahlul
v.
United States, 767 F.3d 1 D.C. Cir.
2014) ............................................. 35
Baker
v. Carr, 369 U.S. 186 1962) ......................................................................... 3 6
Bullington
v.
Missouri,
451
U.S.
430 1981) ....................................................... ..
53
Carter
v.
Halliburton, 710 F.3d 171 4th Cir. 2013) ........ ..................................... 38
Caspari
v.
Bolden, 510 U.S. 383 1994) ................................................................. 48
Cheney
v. US.
Dist. Court
for
Dist. ofColumbia,
542 U.S.
367 2004) ................ 31
Davis
v. PBGC, 571 F .3d 1288 D.C. Cir. 2009)............ ................................. 30, 58
Ex parte Milligan, 4 Wall. 1 1866) ........................................................................ 34
Fay v. Noia, 372
U.S. 391
1963) ........................................................................... 47
Federal Maritime Comm
n v.
Seatr.ain Lines,
411
U.S.
726 1973) ......................
42
Ford v
Wainwright,
477 U S 399 1986) ........................................................ 52, 53
Gordon
v.
Holder, 632 F.3d 722 D.C. Cir. 2011 ) .................................... ....... 57
Hamdan
v.
Rumsfeld,
415F 3d 33 D.C. Cir.
2 0 ~ 5 ........ .......................... 60, 61
Hamdan
v. United States,
696 F.3d
1238 D.C. Cir.
2012) .................................... 38
/
v
~
fl 1eABBWBl8
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Hussain v. Obama, 134 S.Ct. 1621 (2014) ............................................................. 61
Jn
re Bituminous Coal Operators
Ass n,
949F.2d1165
(D.C. Cir. 1991) ...........
42
Jn re September 11th Litigation,
751F.3
d 86 (2d. Cir. 2014) .... ........................... 38
Jn
re
Yamasl1lta
327
U.S.
1 1946) .......................................................................... 35
In re: Al-Nashiri,
791F.3d71
(D.C. Cir. 2015) ............................. 25, 31, 38, 46, 49
Johnson v Eisentrager, 339 U.S. 763 (1950) ......................................................... 35
Kickapoo Tribe
v
Babbitt,
43 F.3d 149 1 (D.C. Cir. 1995) .................................... 58
Kinsella
v
Singleton, 361U.S.234
(1960) .............................................................35
Lee
v
_
Madigan, 358 U.S. 228 (1959) ..................................................................... 36
Ludecke
v. Watldns, 335 U.S. 160 (1948) ...............................................................36
asterson
v.
Hol11ard
85
U S
99 1873)
.................................................................
36
McElroy
v
United States ex rel. Guagliardo, 36
U.S.
281
(1960) ....................... 35
Meshal
v
Higgenbotham,
804 F.3d 417 (D.C. Cir.
20 5)
.....................................
38
Midland Asphalt Corp.
v
United States,
489 U.S. 794 (1989) ........................
46
Mills v District o/Columbia, 571F.3d
13
04 (D.C. Cir. 2009) ..............................57
Obaydullah
v
Obama, 609LF.3d 444 (D.C. Cir. 2010) ....................................60, 61
Privitera
v
California Bd. ofMedical Quality Assur.,
926 F.2d 890
(9th Cir. 1991) ......................................................................................................
59
Proctor Gamble
v
Kraft Foods Global,
549 F.3d 842 (Fed. Cir. 2008) ............ 59
Rafeedie
v
l.N.S.,
880 F.2d 506 (D.C. Cir. 1989), ................................................. 46
Rasul v. Bu.sh, 542 U.S. 466 (2004) ........................................................................ 38
Schlesinger
v
C o u n c i l ~ a n 420 U.S. 738 (1975) ................ : ........................... 60, 62
Sprint Communications v Jacobs, 134 S.Ct. 584(2013) ....................................... 59
Talbot v Seeman, 1 Cranch 1 (1801) ....................................................................... 36
The Prize Cases, 2
Black
635 (1862) .....................................................................
37
Toth v. Quarles, 350 U.S. 11(1955) .................................................................. 30, 45
United States v Pfluger,
685 F.3d 48 1 (5th Cir. 2012) .. 38
United States v
Frediani,
790 F.3d
11
96
1
1th Cir. 2015) .... ................................ 38
United States
v
Ghailani,
733 F.3d 29 (2d Cir. 2013) ........................................... 56
vi
t f@Is/tBBWH '.8
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United States
v
Harper 729 F.2d 1216
9th
Cir. 1984) ..................................
47,
49
United States
v
Quinones 313 F.3d 49
2d
Cir. 2002) ..........................................
47
United States
v
Taylor
487 U.S. 326 1988) ..................... ....................................58
Walton
v
Johnson 407 F.3d 285 4th Cir.
2005)
............ .......... , ........................... 53
Younger v Harris 401 U.S. 37 1971) ................................................................... 62
Cons
ti
tu tional Provisions
U.S. Const., art. I 8, cl. 11 ........... ......................................................................... 36
U.S. Const.,
art.
II
2,
cl.
J ..... ..................................................... .......................
3 7
U.S. Const.,
art
. III
2,
cl. 3 ...................................................................................
27
U.S.
Code
I0
U.S.C.
948a
~
1
l 0 U.S.C. 948b ....... . .................. , .......................................................xii, 1, 32,
42
10 u s c 948h .................................. : ................................................................... 1
10
u s c
948i ........... .................................................................. ........................... 1
10 U.S.C.
948j ...........................: ........................................................................... 1
10
u s c
949a . I
34
1
u.s.c.
949h
t :
l
10 U.S.C.
950g ......................................................................................................xi
10 u s c 950p ...................................................xii, 1, 3, 25, 27, 32, 33, 41, 42, 55
28 u s c
1292 ........................................................... ...... ....................................
28 U.S.C. 1651 .........................................................................................: ...........xi
28
U.S.C.
2241 ..................................... ........................ : .................................
xi,25
s
u s c 1541
3
50U
.S.C. 1543 ........ .................... ................... ....................................... .........37, 39
50 u s c 1544 ........................... ......... ................................................................. 37
Vll
u
8IsABBifIB8
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UNC
t ASStfffit>
Congressional
Materia
ls
Authorization for the Use ofMilitary Force, 115
Stat
. 224 ................................
37
CRS Sununary,
NationaJ
Defense Authorization Act
for Fiscal
Year
2010, Pub. L. 111-84 Oct. 28,
2009)
..................................... ............................. 33
H.R. Rep. No. I 09-664 1) 2006) ............................................................................
34
Jennifer Elsea Matthew Weed, CRS Report for Congress, Declarations
of War
and Authorizations
for
the Use
of
Military Force Apr.
18
2014) ......... 54
Military Commissions Act
of
2009, 123 Stat. 2190 2009) ...............................xi
42
Supporting peace, security, and innocent cjvilians affected by conflict in
Yemen, S.
Re
s. 341,
11 lth
Cong. 2009) ............................................................ 40
War Powers Resolution, 87 Stat.
5
55 1973) .................. ......................... ............... 37
Execuiive
Materia
ls
AE104A Sep. 13, 2012) ................................................................................... 25, 41
AE104F Jan. 2013) ..........................................................................................25
AE140J Mar.
23 .
2013 ......................................................... . ............................... 5
AE168G/AE241C Aug. 11, 2014) .......................... ............ ................................... 25
Al Nashiri
v MacDonald, Case
No.
12-35475, Resp. Br.
9th Cir., Nov.
20, 2012)
................................................... : ................ ...... ...........
26
Al Nashiri
v.
Obama, et
al.,
Case
No. 08-1207, Resp. Opp.
(D.D.C.May
15 ,2014) ............ ... ...... ....... ............................................................ 26
Chiefof
Naval Operations, Investigation to Inquire into
the
Actions o/USS COLE DDG 67) in Preparingfor and
Undertaking a Brief
Stop
for Fuel at Bandar at Tawahi
Aden Harbor) Aden, Yemen
on
or about 12 October
2000
Jan. 9, 2001) ....................................................................... .................. ..............
40
Convening
Order 11-02
Sept.
28
, 2011) ................................
xii,
24, 25,
27,
41, 63
Letter to Congressional Leaders
on
the Gl
ob
al Deployment o
United States Combat-Equipped Armed Forces, Daily Comp.
Pres. Docs., 2015
DCPD
No. 201500428 Jun. 11, 2015) .................................. 39
Letter to Congressional Leaders Reporting
on
Efforts in the
Global War on Terrorism, 39 Wkly. Comp. Pres. Doc . 1247
Sept. 19, 2003) .......... .
..
............................................................
..
............ ......... 4, 40
Vlll
l: Jit
Cf Jlf
BBlf f5B
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Uf f@IsttBSIFIEB
Letter
to Congressional Leaders Reporting on
the
Deployment
o
Forces in Response to the Terrorist Attacks
o
September
11 38 Wkly.
Comp. Pres. Doc.
1588
(Sept.
20,
2002)
......................................... 4
Letter
to Congressional Leaders Reporting
on the
Deployment
o
United States Forces in Response
t the ttack on the USS
COLE,
36 Wkly. Comp.
Pres.
Doc.
2482
(Oct. 14, 2000) .... .......................... 2, 39
Letter
t
Congressiorzal Leaders Reporting on the Deployments
of United States Combat-Equipped rmedForces
round
the
World, 43 Wkly. Comp. Pres. Doc.
815 (Jun. 18, 2007) ................ ...: ................
39
Letter to Congressional Leaders Reporting on United States
Efforts in the Global War
on
Terrorism,
39 Wkly. Comp.
Pres. Doc.
346 Mar
. 20, 2003 ) .................
..
........................................................ 4
Letter
to the Speaker of the House
o
Representatives
and
the
President
Pro Te
mpore
of he Senate, 37 Wkly. Comp.
Pres.
Doc. 144
7 (Oct. 9, 2001 ) ..................................................................................
3,
3 8
Reg.T.Mil.Comm.
2011) .................................................................... ......................
1
The President s Radio Address,
36
Wkly.
Comp. Pres. Doc.
2464
(Oct. 14,
2000)
........................................................................................ 2,
39
Miscellaneous
American
Bar
Association Guidelines
for
the Appointment
and
Performance ofDefense Counsel in
Death
Penalty Cases, 31
Hofstra
L. Rev. 913 (2003) ..... .........
........................................................... 48
Harry Edwards, Linda Elliott Marin Levy,
Federal Courts
Standards
o Review 2d ed. 2013) .......................................... .....
....................... 30
William Winthrop,
Military
Law and
Precedents
(1920) ....................................... 33
lX
Mil
J@ sAB81Ftt}fJ
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UNCLASSIFIED//FOR PUBLIC RELEASE
U f8Is2\B8IFIE8
~ G L O S S A R Y OF T RMS
~ 0 0 9
Act
...................Military Commissions Act of 2009, 123 Stat. 2190 (2009)
U)
706
Report
........
RMC 706
Sanity Board Evaluation
of
Abd Al Rahim
Hussayn
Muhammad Al Nashiri: ISN 10015 (Mar. 28, 2013)
U) App .............................. ................. Petit ioner s Appendix Vol. I (Nov. 20, 2015)
~ A p p . I I
.......................................... Petitioner s Appendix Vol. (Nov. 20, 2015)
~ A U M F
.......... u t h ~ r i z a t i o n
for the Use of
Military Force, 115 Stat. 224 (2001)
~ I A O I G Report ....... Central Intelligence Agency Inspector General, Report
of
Investigation, Unauthorized lnterro ation Techni ues
at [REDACTED],
~ I A O I G Review
......... Central Intelligence
Agency
Inspector General, Special
Review: Counterterrorism Detention and Interrogation
Activities, 2003-7123-IG (May 7, 2004)
~ C r o s b y Deel. ............... Declaration of Dr. Sondra Crosby, M.D. (Oct. 24, 2015)
~ R e g . f
.Mil.Comm .............Regulation_or Trial
by
Military Commission (2011)
~ N Y
Indictment .............
United States v al-Badawi,
eta ., No. 98-CR-1023
(S.D.N.Y., unsealed
May
15, 2003)
~ S S C I
Report ....... Senate Select Committee on Intelligence, C o m ~ i t t e e
Study
o
the Central Intelligence Agency's Detention and Interrogation
P r o g r a m ~ Executive Sunimary (Dec. 3 2014)
Y ~
Supp.Pet.
............
Al-Nashiri
v
Obama,
et
al., Case No. 08-1207, Supplemental
Petition for
a
Writ
of
Habeas. Corpus (D.D.C.
May
15, 2014)
~ W i n t h r o p .... , .................. William Winthrop, Military Law
r
ecedents (1920)
x
lM f
8isA8BWB9 .8
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. lsJ f8Jis/1CJBIFIBB
(l:f) :JURISDICTIONAL ST TEMENT
(C J) This Court has supervisory judsdiction over all
military
comm1ssions
created under the authority
of
he
Military
Commissions Act
of
2009
>
123
Stat.
2190 (2009) ( 2009
Act ).
10
U.S.C.
950g. This
Court can issue all writs
necessary and appropriate in aid
of
that jurisdiction pursuant to 28 U.S.C. 1651.
Petitioner also filed a petition for a
writ of
habeas corpus in the U.S. District Court
for the District of Columbia. 28 U.S.C. 224l(a). This Court has jurisdiction to
review Petitioner's entitlement to relief via habeas corpus and the district court's
refusal to enter a preliminary injunction under
28
U.S.C.
1292 a) l)
&
2 2 4 1 a ) ~
.
XI
WlJOTs tSSIFle8
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9? f0Is/tBBW IE 8
~ S S U S PRESENTED
~ 2009 Act authorizes the Secretary ofDefense or his delegate (the
Convening Authority ) to convene
military
commissions to
try
offenses triable
by military commission as provided
in
this chapter, 10 U.S.C.
948b(b), and an
offense specified in this subchapter is triable
by
military commission under this
chapter only if he offense is committed in the context
of
and associated with
hostilities. Id 950p
c)
. The Convening Authority issued Convening Order #11-
02 (Sept. 28, 2011), which created a military commission to try Petitioner-
Appellant,
Abd
Al-Rahim Al-Nashiri ( Al-Nashiri ), for his alleged role in
terrorist plots in Yemen .All of the allegations levied in this order, however>
occurred before hostilities of any kind existed in Yemen. This raises
one
statutory
and one constitutional question:
1. Convening
Order 1
1-02 violate 10 U.S.C.
950p(c)
by
co
nvening a military commission
to
try Al-Nashiri for capital offenses that did not
occur in the context of and were not associated with hostilities?
2. ~ o e Convening
Order
#11-02 violate the judici
al
trial requirements of
Article III and the Fifth and Sixth Amendments by subjecting Al-Nashiri to
prosecution by
the
military conunission for capital offenses that did n
ot occur
in
the
context
of
an
d were
not
associated
with
hostilities?
..
XU
f
f@b\S8IFIIS8
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l91
J@LA99If H15
S T T E M E N T OF THE CASE
A. S t a t u t o r y Sch
em
e
of
the Military Comm issions Act
of
2009.
h e 2009
Act
authorizes the Secretary of Defen
se
and his delegates, to
establish military commissions, but only for offenses triable by military
commission as provided in this chapter.,, 10 U.S.C. 948b(b), 948h. The
Secretary
of
Defense has delegated this responsibility to the C o n v ~ n i n g
Authority,
a civil servant
in the
Department of Defense.
Supp.Pet.
App.
1.
) ifhe
Convening Authority creates commissions
d
hoc
by
i
ssuing
orders
to the commission's members to
try
specific charges against a specific accused.
The
members
are
military
officers, assigned
by the
Convening
Authority
to sit as
finders
of
fact,
recommending
both a verdict and an upper bound ofpunishment.
l 0 U .S.C. 948i. The trial is presided
over
by a military judge, id 948j,
assigned
by
the officer the Convening Authority designated
the Chief
Trial
Judge
.
Reg.T.Mil.Comm. .6-1, et seq (2011).
(
U) =fhe
2009
Act
enumerates two limitations
on
the offenses triable by
military commission: a double jeopardy limitation,
I 0 U.S.C.
949h,
and the
require
ment
that [a]n offense ... is triable by military commission under this
chapter
only if he offense is committed in
the
context of and associated
with
hostilities. Id 950p(c). Hostilities is defined as a
co
nflict subject to the laws
of
war.
Id
948a(9).
1
Ut
T@e tBBWIB8
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B
~ L e g a l Status
ofYemen at Times
Relevant
to this Case.
~ A t
all times relevant to this case, the United States
had
forces stationed
in Yemeni territory for peacetime training, diplomatic, and logistical operations.
Neither the Presidentnor Congress ever found that this placed U.S. forces in
an
area
of
actual
or
likely hostilities, such that the law
of
war would apply. This
includes the period surrounding the bombing
of
the USS
COLE
in October 2000,
which is
at
the center
of
the allegations against Al-Nashiri. After the bombing,
President Clinton did nothing to invoke
or
otherwise apply the l
aw
ofwar. Instead,
he
stated that the country was in peacetime:
[E]ven when America is not at war, the men and women
of
our
military risk their lives every day
No
one should think
for a moment that the strength
of
our military is less important
in
times
of
peace, because
the
strength
ofour
military is a
major reason
we
are
at
peace.
The resident s Radio Address
36 Wkly. Comp. Pres. Doc. 2464 (Oct. 14, 2000).
The
President reported to Congress that additional U.S. personnel were deployed
to
Yemen solely for the purpose ofassisting in on-site security . forces will
redeploy as soon as the additional security support is determined to be
unnecessary. Letter to Congressional Leaders Reporting on the Deployment of
United States Forces
in
Response to the Attackon the USS COLE
36 Wkly. Comp.
Pre
s Doc. 2482 (Oct. 14, 2000).
2
l 9f
i@h\88Ifl@JJ
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fl
f@hABOIPIM
(l 9i) Nothing
in the public record suggests that
the
USS COLE incident
occurred during a conflict, in the context of hostilities, or was subject to the
laws
of
war
as
required by 950p(c).
The government's
response was
to
send
the
FBI to conduct a criminal investigation; This led to an indicqnent in the Southern
District
ofNew
York that remains pending. United States v. al-Badawi et al. No.
98-CR-1023 (S.D.N.Y., unsealed May 15, 2003) ( SONY Indictment).
~ year later, after the September 11th attacks, Congress passed the
Authorization for the Use ofMilitary Force ( AUMF''), 115 Stat. 224 (codified at
50 U.S.C.
1541,
note
. The Aillv1F authorized the President
to use
all necessary
and
appropriate force against those nations, organizations,
or persons
responsible
for the September 11th
attack
Id. 2(a). The AUW' supplements and is codified
as a note to the War Powers Resolutfon, Pub. L 93-148, 87 Stat 555 (codified at
50 U.S.C. 1541, et seq. . Id. 2(b)(l). When drawing upon the AUMF to engage
in hostilities in specific places, the President has done so via War Powers
Resolution reports. See e.g. Letter to the Speaker of he House o Representatives
and the
Pr
esident Pro Te
mp
o
re o
he Senate
37
Wkly. Comp. Pres. Doc. 1447
(Oct. 9, 2001) (hostilities
in
Afghanistan).
(U .) 'fhe President did not extend the
AUMF's
war-making authorities to
Yemen at any time relevant to allegations against AL-Nashiri. In the months
surrounding Al-Nashiri' s seizure, President
Bush
reported
to
Congress
tha
t the
3
u f@ISfr88Ifiet9
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deployment of U.S. personnel in Yemen was strictly for training and equipping
their armed o ~ c e s and providing oversight for urban and maritime counter-
terrorism training with the Yemen special operations forces.
l tt r
to
Congressional Leaders Reporting on the Deployment o Forces in Response to the
Terrorist Attacks
of
September 11 38 Wkly. Comp. Pres. Doc. 1588 (Sept. 20,
2002);
Letter
to Congressional Leaders Reporting on United States
jforts
in the
Global War on Terrorism 9 Wkly. Comp. Pres. Doc. 346 (Mar. 20, 2003).
U,
On
September
19,
2003, nearly a year after
l - N a s h i r i
was in custody,
the President notified Congress
of
military operations against al-Qaida and other
international terrorists in the Horn ofAfrica re.gion, including Yemen.
Letter to
Congressional Leaders Reporting
on
Efforts in the Global War on Terrorism 39
Wkly. Comp. Pres. Doc. 1247 (Sept. 19, 2003). This was the first time the
President indicated that Yemen was a theater of hostilities.
C.
~ A J - N a s h i r i s
Background and Medical Status.
~ A l N a s h i r i is a citizen ofSaudi Arabia, born into a lower-class Yemeni
family. While little ofhis early life s known, Al-Nashiri demonstrated evidence of
mental disability throughout his youth. According to his school records, he
routinely repeated grades
and
ultimately did not graduate from high school until
the age
of
twenty-five. App. 232.
4
f@lSA fiilt:fil
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~ n October 2002, Al-Nashiri was seized by local authorities in the
United Arab Emirates. Supp.Pet 1 3 . He was thereafter taken into the custody
of
the CIA as the second prisoner in its newly-formed Rendition, Detention, and
Interrogation ( ~ R D r ) Program.
Id
The objective
of
the RDI program was to
indu
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fW ~ o s e Rodriguez, the CIA s Deputy Director ofOperations responsible
for the
RDI
program,
echoed
this characterization of Al-Nashiri. Addressing
the
claim that Al-Nashiri was the mastermind,, of the USS COLE bombing,
Rodriguez wrote,
mMastennind
was not an
apt
description of [A]l-Nashiri. One of
our
interrogators described
him
to
m as the
dumbest terrorist
I
have ever met.
...
[A]l-Nashiri was a nose picker who delighted in plastering
the
wall of his
cell
with
whatever
he could
excavate from his nostrils. Jose Rodriguez
Bill
Harlow,
ard easures
83 (2012), App. 254.
In late 2012, the government requested a
competency
board
evaluate Al-Nashiri.
Two
psychologists
and one
psychiatrist
conducted interviews with Al-Nashiri and reviewed numerous documents
including summaries of
his interrogations, medical assessment n o t e s ~ and
psychological assessment notes from 2002 through 2006. 706 Report
at
11,
App.II I 08-109.
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The
military professionals concluded that Al-Nashiri
suffers Post-Traumatic Stress Disorder
and
Major
Depressive Disorder.
Id at
33-36
App.II 131-34.
~ h i s diagnosis was corroborated
by
Dr. Sondra Crosby, a medical expert
appointed by the commission. Dr. Crosby met
with
Al-Nashiri multiple times,
evaluating him for approximately 30 hours. Crosby Declaration
,8,
App. 63. She
found that Al-Nashiri ''suffers from post-traumatic stress disorder that has not been
addressed -
or
it
hasn t
been diagnosed except for a
brief
period,
or
treated. He
suffers from chronic pain. He suffers from anal-rectal complaints, and all
of
hese
are documented in the unclassified records. Multiple other physical complaints,
headaches, chest pain,
joint
pain, stomach pain. App. at 245.
She
further
concluded
he
suffers from persistent and chronic anal-rectal complaints, difficulty
defecating, bleeding, hemorrhoids,
pain with
sitting for prolonged periods
of
time.
This is very common in survivors
of
sexual assault. Id at 250-251. Dr. Crosby
concluded that Al-Nashiri s symptoms are indicative
of
torture. App. 245.
He
is
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hypervigilant, suffers from intrusive recollections and flashbacks, sleep disorders,
and nightmares, all related to specific episodes ofphysical, emotional, and sexual
torture. Crosby Declaration.
ifl2 -13,
App.
63.
(U) Dr. Crosby further found the circumstances ofGuantanamo, including
language barriers and frequent turnover in the guard and medical staff, are all
disruptive to providing continuity ofcare and adverse
to
any potential for
recovery App. 247. Despite the passage of ime, Al-Nashiri has shown little
sustained improvement in his mental health. Crosby Declaration
,16,
App.
64.
Long-lasting effects from torture would be expected, but factors unique to
Guantanamo and the commissions system exacerbate his symptoms. Id
Guantanamo was itself a
black
site." This confronts Al-Nashiri
with
persistent
visual and audible triggers for traumatic stress events, causing him intense anxiety,
dissociation, and painful flashbacks. Jd.1[17. The highly fluid and unpredictable
commission process exacerbates his sense of helplessness and further impairing his
ability to regulate emotions.
Id
~ 2 2 Dr. Crosby predicts , given these
.circumstances, Al-Nashiri is likely to dt ;Compensate during his
trial.
D. Aspects
of
the RDI
Program
Leading to Al-Nashiri's Mental Status.
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(U? The following chronology has been reconstructed principally from open-
source materials and summaries ofgovernment documents that were prepared for
defense counsel in lieu of
the original cables, reports, records, and other source
documents. Even these underlying documents were recorded in increasingly
summarized form, providing little on
how
or when the t e ~ i q u e s were applied
during an interrogation. SSCI Report 64
n.31 ,
App.
13 .
Further, the
for which no information is available to defense
clearly demonstrates Al-Nashiri
s
present medical and psychiatric problems are the result - intended result - of the
government's deliberate, years-long campaign to coerce Al-Nashiri into a state
of
learned helplessness.
He was not allowed to sleep, was regularly beaten,.
and hung by his hands. 706 Report at 16, App.II 114. After a month,
he
was
transferred to CIA custody and taken
t
a location codenamed COBALT.
1
In
1
To minimize the use ofclassified infonnation in this pleading, counsel have used
the pseudonyms employed by the SSCI Report for individuals and locations.
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transit to COBALT, ice was
put
down his shirt. Id This appears to have been done
as part
of
a broader policy
of
using transportation between black sites to induce
anxiety
and
helplessness. SSCI Report at 64 n.
31
7, App.
13
8;
W) Virtually no documentation
of
Al-Nashiri's time at COBALT exists.
SSCI Report
at
67, n.338, App. 14 l Certain facts can be ascertained from then
prevailing standard operating procedures. The
chiefof
interrogations described
COBALT
as
good for interrogations because it is the closest thing he has seen to a
dungeon, facilitating the displacement
of
detainee expectations. Id at
50
n.240,
App. 124. COBALT operated in total darkness and
the
guard staffwore
headlamps. SSCI Report
at
49, App.
123.
Detainees were subjected
to
loud continuous
noise, isolation,
and
dietary manipulation. SSCI Report
at
67 n.3 38, App. 141.
Hf-.:+N++According to one CIA interrogator, detainees
at
COBALT 'literally looked like a dog that had been kenneled.' When the doors
to their cells were opened,
they
cowered. ' SSCI Report at 50, n.240, App. 124.
At
COBALT,
Detainees were fed on an alternating schedule
of
one
meal
on
one
day and two
meals
the
next day. Id
They
were kept naked, shackled to the wall,
and
given
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buckets for their waste. On one occasion, Al-Nashiri w.as forced to keep his hands
on the wall and not given food for three days. 706 Report at 16, App.II 114. To
induce sleep deprivation, detainees were shackled
to
a
bar on the
ceiling, forcing
them to stand with their arms above their heads. SSCI Report at 49, App. 23
use of improvised interrogation methods, such as water dousing, wherein a
detainee was doused with cold water
and
rolled into a carpet, which would then be
soaked with water in order to induce suffocation. SSCI Report at 105, App. 179.
1-Nashiri was kept continually
naked and the temperature was kept,
in
his words, cold as ice cream. 706 Report
at 16-17, App.II 114-15.
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The documentation o conditions
at lacks
specificity. Most summaries o interrogation say simply
There is no question, however, that Al
Nashiri was waterboarded at GREEN. SSCI Report at 67, App. 141. This
entailed being tied to a slanted table, with his feet elevated. A rag was then placed
over his forehead and eyes, and water poured into his mouth and nose, inducing
choking and water aspiration. The rag was then lowered, suffocating him with
water still in his throat and sinuses. Eventually, the rag was lifted, allowing him to
take 3-4 breaths before the process was repeated. App.II 72.
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small box measured
30 x30 x2 l
.
App.II 160. A photograph is given t
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BLUE in early December 2002. App.I 141. At BLUE,
point, Al-Nashiri suffered from a head cold causing him to shake for
approximately ten minutes. SSCI Report
at
72, App. 146. Solid food, clothing,
reading materials, prayer rugs, and Korans were sometimes provided based
on
his
perceived degree
of
compliance with interrogations.
Id
at 62, App. 136. Clothes
were sometimes given to '4stabilize his physiological problems.
Id
at 72, App.
After interrogators questioned Al-
Nashiri
s
intelligence value, CIA Headquarters sent an untrained, unqualified,
. uncertified, and unapproved officer to be Al-Nashiri's new interrogator at BLUE.
SSCI Report at 68-69, App. 142-43.
Al-Nashiri was
kept continually hooded, shackled, and naked. CIA-OIG Review if 92, App.II 142-
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43;
He was regularly strung up
on
the wall
overnight.
Id
Al-Nashiri was regularly forced into stress positions prompting a
Physician's Assistant to express concern that Al-Nashiri's anns might be
dislocated. CIA-OIG Review
9 7
App.II 145.
While prone,
thi interrogator
menaced Al-Nashiri with a handgun. CIA-OIG Report App.II 158. The
interrogator racked the handgun once or twice close to Al-Nashiri's head. CIA
OIG Review App.II 142-43.
The
nterrogator also
threatened to get your mother in here, in an Arabic dialect implying
he
was from
a country where it was common to rape family members in front detainees. CIA
OIG Review App.II 144
~ h s threats were coupled with forced bathing with a wire
brush to abrade the skin, CIA-OIG Review
App.II 145; App.II 74. There is also evidence AI-Nashiri was, in fact, forcibly
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sodomized, possibly under the pretext ofa cavity search that was done with
~ e x c e s s i v e force. SSCI Report at 100 n.584.
(W
Soon after Al-Nashiri arrived at BLUE, the on-site interrogators
assessed Al-Nashiri to
be
cooperative. SSCI Report at 67, App. 141. BLUE
persoIUlel cabled back to CIA Headquarters that Al-Nashiri was cooperative and
truthful and their consensus was that Al-Nashiri was a compliant detainee
who was not withholding important threat information.
Id
at 68. Headquarters
responded, When we are able to capture other terrorists based on his leads and to
thwart future plots based on his reporting, we will have much more confidence that
he is, indeed, genuinely cooperative on some level.
Id
Headquarters insisted that
interrogators subject Al-Nashiri to harsher treatment. Id CIA interrogators at
BLUE protested that Al-Nashiri was providing logical and rational explanations
to questions and recommended against reswning enhanced measuresH unless
Headquarters had evidence that Al-Nashiri was lying.
Id
[W]ithout tangible proof
of lying or intentional withholding, however, we believe employing enhanced
measures will accomplish nothing except show [al-Nashiri] that
he
will be
punished whether
he
cooperates or not
...
[I]f
subjected to indiscriminate and
prolonged enhanced measures, there is a good chance he will
...
suffer the sort of
permanent mental harm prohibited by the statute. Id
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(U) -r'he
CIA s Chiefof
Interrogations, a person whose presence
had
previously caused Al-Nashiri to tremble
in
fear, threatened to resign if further
torture was ordered. SSCI Report,
at
71, App. 145.
He
wrote that torturing Al
Nashiri is
,;a
train wreak [sic] waiting to happen and I intend to
get
the hell offthe
train before it happens Id He then wrote a cable to be entered for the record
that
we
have serious reservations with the continued use of enhanced techniques
with [Al-Nashir
i]
and its long term impact on him. [Al-Nashiri] has
been
held for
three months in very difficult conditions, both physically
and
mentally . . [Al
Nashiri] has
been
mainly truthful and is
not
withholding significant information.
To continue
to
use enhanced technique[s] without clear indications that he [is]
withholding important info is excessive
. . .
Also both C/CTC/RG
and HVT
interrogator who departed [BLUE] in [REDACTED] January, believe continued
enhanced methods
may
push [al-Nashiri] over the edge psychologically. Id
Headquarters ordered Al-Nashiri to be tortured further. Id
at
72.
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( l:H; FOUO After six months
n
Al-Nashiri was rendered to a foreign
country. SSCI Report, t 139,
App
213. Little is known about Al-Nashiri s time
there. However, based on independent
i n v e s t ~ g a t i o n
defense counsel has identified
this country and
can
proffer that it has
r e ~ u l a r l y
been cited
by
the State Department
for its routine use
of
torture and extrajudicial homicide.
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~ - - l - ? l d ~ I n
October 2004,
n
assessment
of
Al-Nashiri
conducted by CIA Headquarters concluded that Al-Nashiri provided essentially
no actionable information and ''the probability that he has much more to
contribute is low. SSCI Report at 73, App. 147.
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._
...._ .... ~ . -
. . ~ _
..
-
UN
CLASSI
FI
ED FOR PUBLIC RELEASE
U
f8lsi\BBW9 8
D
~ r o e e d i n Leading to this Case.
) In May 2003, Al-Nashiri was named
an
unindicted co-conspirator
in
the
still-pending
SONY
Indictment. Supp.Pet.
if
13. It alleges that he was part of a
terrorist group in Yemen that conspired
to bomb
marine vessels, including the USS
COLE
. Al-Nashiri
has never
been alleged to have
had
any involvement
in
the
September 11th attacks
or
to have done
anyt
hing
in
the context
of
or
associated
with
the war
in Afghanistan
or
any other hostilities.
In
September 2006, however,
rather than being transferred to the Southern District
of
New York, Al-Nashiri was
brought
back to Guantanamo. Supp.Pet. lf13.
'
U) In
December 2008, the Convening Authority issued orders
to
create a
military commission
to try
Al-Nashiri
on
charges drawn from the SDNY
Indictment. Supp.Pet.
~ 1 4
Proceedings were
to
begin in February 2009. Following
the
inauguration o.f President Obama, prosecutors sought a contmance
of
he
arraignment. This was denied
be
cause it
wou
ld violate t
he
the commissions'
30-day deadline
on
arraignments.
Id
The Convening Authority responded
by
withdrawing the charges without prejudice, disbanding the commission. Id
~
years later,
the
Convening Authority issued Convening Order
11-02, creating a second military commission
to try
Al-Nashiri. Supp.Pet. if23-24.
These
charges were also carried over from the
SONY
indictm
en
t, supplemented
by
charges relating
to
the bombing ofa
Fre
nch tanker
off
the coast
of Yemen
in 2002.
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In 2014,
the
military commission dismissed these additional charges after
the
prosecution declined to put on evidence establishing jurisdiction over thern.
AE168G/AE241C, at 5 (Aug. 11, 2014), App. 96.
1
U Al-Nashiri moved the military commission to d i s ~ i s s on the ground that
Convening
Order
11-02
was ultra vires
because none of
the
offenses occurred in
the context of
or
were associated with hostilities.
The
government contended that
the
military commission was not authorized to declare convening orders ultra
vires
that 950p(c) placed no limits on what
was
triable by military commission,
and
that the
existence ofhostilities should instead be read as an implicit element
of
the offenses to
be
tried. AEl 04A
at
9 (Sep. 13, 2012), App.
78.
The military
commission ruled, inter alia that 950p(c) was satisfied by the Convening
Authority s
having issued Convening Order 11-02 without be ing personally
countermanded y the now-sitting President. AE104F
iJ4
(Jan. 15, 2013), App. 90.
~ Al-Nashiri filed a declaratory judgment action challenging the
Convening Author ity's authority under 10 U.S.C. 9SOp(c) as well as Article III
and
the
Fifth
and
Sixth Amendments. The government succeeded
in
having the
case dismissed \Ulder 28 U.S.C. 224l(e)(2). Al-Nashiri v. MacDonald 741 F.3d
1
( ~ ) I n
September 2014,
the
prosecution noticed
an
interlocutory appeal of the
decision to dismiss these charges. Due to irregularities
in
the composition of the
CMCR panel, all proceedings have been stayed since November 2014. ee n
re:
Al-Nashiri 791F.3d71 (D.C. Cir. 2015).
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1002, 1009 (9th Cir. 2013). In arguing for dismissal, the government insisted,
if
any
court were to
have
jurisdiction over plaintiffs interlocutory challenge, it
would
be
the
D.C.
Circuit
on
mandamus in relationship to its exclusive
jurisdiction. Al-Nashiri v. MacDonald Case No. 12-35475,
Resp
. Br., at 31 n.11
(9th Cir., Nov.
20,
2012), App. 98.
U)
Al-Nashiri then raised this claim
by
filing a supplemental petition for
habeas corpus and requesti
ng
a preliminary injunction. Again, the government
urged dismissal because
ifany
Court were to have jurisdiction over Petitioner. s
challenge, it would
be
the D.C. Circuit on mandamus in relation
to
its exclusive
j urisdiction. Al-Nashiri v. Obama et al. Case No. 08-1207, Resp. Opp., at 9 n.7
(D.D.C. May 15, 2014), App. 100. The District Court granted leave to file a
supplemental petition, but denied Al-Nashiri 's motion for a prelimi
nary
injunction
as
moot
after granting Respondents' cross-motion
to
hold Al-Nashiri's case in
indefinite abeyance.
l
-Nashiri v. Obama 76 F.Supp.3d 218 (D.D.C. 2014).
( ~
Al-Nashiri filed a timely notice of appeal. Al-Nashiri v. Obama et al.
Case No. 15-5020 (D.C. Cir., Jan. 26, 2015). Contemporaneously, he petitioned for
a
wr
it
of
mandamu
s.
Jn
re: Al-Nashir
i
Case
No.
15-1023
(D.C. Cir., Jan.
28,
2015).
He
moved to consolidate the two
case
s,
which
this Court granted.
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lR #0Is/tB8IFIBB
ftijSUMM RYOF RGUMENT
(el')
Outside the unique context
of
courts-martial, the
use of d
hoc military
tribunals for the prosecution
of
crimes violates the Constitution's requirement that
the trial of all crimes be in courts
of
law. U S Const.,
art.
III 2, cl. 3. Even in
wartime, the use of military commissions to adjudicate battlefield offenses is a
reluctant exception to our nation's commitment to judicial trials. Crimes, such as
those charged here, which were allegedly committed far from any battlefield -
indeed before any hostilities
existed
are not triable
by the
military. Congress
codified that principle when it enacted 10 U.S.C. 950p(c).
And
the Department
of
Defense violated that principle when it issued Convening Or
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l:Ji} First
the merits are clear. No hostilities existed in Yemen at the time
of
Al-Nashiri s alleged crimes. This is conclusively established by the public acts of
the political branches. Indeed, the very charges at issue in
this
case have been the
subject ofa federal indictment since 2003. The Department of Defense s effort to
remove a capital case from a federal court violates the express limits Congress has
placed
on
its authority to conduct military trials,
i t
usurps the judicial power that
the
Constitution reserves to the courts of law, and it illegally attempts to apply the
laws of war to a time and place in which the President and Congress collectively
concluded that peace prevailed.
t
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Ul f@Lt t
Btl
R
~ T h i r d everyone benefits from
prompt
judicial review of
he
single
question of law before this Court. The existence of hostilities
broadly
impacts the
daily
lives
of
citizens
throughout
this
country.
And in
this case,
where the
existence of hostilities authorizes the Department of
Defense
to remove a capital
trial from a federal court to an d hoc military commission, the stakes
to
the
separation-of-powers and the public's interest
in
the
Executive's
compliance with
limits imposed by Congress could
not
be graver. n this case, like Hamdan v
Rumsfeld
548 U.S. 557, 589 (2006), the government as much as the accused
benefits from knowing
in advance
whether this capital trial
has any
basis in
law.
And the
public benefits from legal certainty on a question as consequential as
where
and when the United States is at war.
etJ finally,
the District
Court s
denial
of a
preliminary injunction
and
issuance
of
an indefinite stay
in
Al-Nashiri'
s habeas case is reversible error. The
District Court failed
to
conduct even the most rudimentary analysis
of
whether
an
injunction was warranted. Instead, it granted Respondents cross-motion for a stay
on abstention grounds. This was a per se abuse of discretion. Moreover, its
decision to abstain
in deference
to
the
military commission proceedings
is
contrary
to
case law
frm
this Court, which it neither cited nor distinguished, and it
is fundamentally incompatible
with
the duty that rests on the courts,
in war
as
much
as in peace, to decide cases properly within their jurisdiction.
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Ul f8bAB8IFI'5f J .
. ARGUMENT
I.
~ S T N D R D
OF REVIEW.
(ff) This case asks whether a federal agency has exceeded the athority
granted by Congress and allowed under the Constitution. A court deci9es de
novo
whether
an
agency has acted within the bounds of congressionally delegated
authority. Harry Edwards, Linda Elliott
&
Marin Levy, Federal Courts Standards
o
Review
168 (2d ed. 2013). Because the Department
of
Defense has effectively
removed a criminal case
from
a federal court into a military tribunal, this Court
subjects that effort to divest an Article tribunal
of
its judicial power to strict
scrutiny. Toth v. Quarles 350 U.S. 11, 42 (1955). That single question
of
law
is
asked via two procedural vehicles: injunctive reliefpursuant to habeas corpus and
a writ
of
mandamus to the
military
commission convened under this Court's
appellate jurisdiction.
(U, For
an injunction via habeas, the petitioner must establish [1] that he is
likely
to
succeed
on
the merits, [2] that he is likely
to
suffer irreparable harm in the
absence ofpreliminary relief, [3] that the balance
of
equities tips in his favor, and
[4] that an injunction is in the public interest.
Aamer v Obama
742 F.3d 1023,
1038 (D.C. Cir. 2014). These factors are evaluated
on
a 'sliding scale.
avis
v.
PBGC 571F.3
d1288,
1291-92 (D.C. Cir. 2009). This Court reviews a district
court's weighing
of
the four preliminary injunction factors ... for abuse
of
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t Jiit
f@fs/t IBIFI e
discretion Legal
conclusions-including
whether the movant has established
irreparable harm-are reviewed de novo.
Id.
(quotations omitted).
~ o r
relief
under mandamus, the petitioner must. demonstrate three
conditions are met. He must 1 have no other adequate means to attain the relief
he desires; 2) show that his right to issuance of the writ is clear and
indisputable; and 3) even
if
the first two prerequisites have been met, the issuing
court, in the exercise of its discretion, must be satisfied that the writ is appropriate
under the circumstances.
Al-Nashiri
791 F.3d at 78 (quoting
Cheney
v US
Dist.
Court for Dist. o Columbia 542 U.S.
3 6 7 ~
380-81 (2004)).
U) While the respective standards of review and burdens of persuasion for
mandamus and habeas are distinct, in this case, rel ief under both turns
on
the same
three considerations:
the
merits, the harm in the absence of relief, and the public's
interest in prompt adjudication. The only meanmgful difference is the weight of
Al-Nashiri's u r d e ~ Instead of a likelihood
of
success for injunctive relief via
habeas, he must show a clear entitlement to relief under mandamus. Instead of a
balance ofequities in his favor, he must demonstrate irreparable harm that cannot
be avoided through other adequate means. And instead of showing that the public
interest is consistent with injunctive relief, he must convince this Court that
injunctive relief via mandamus is an appropriate exercise of its discretion.
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SII IE
iThis wholesale deference to the Convening Authority on
such
a
fundamental question
of
law is
not
only baseless, it demonstrates the military
conunissions' basic inability
to
self-correct against overreaching.
The 2009
Act
does not say that the Convening Authority declares when and where hostilities
existed or
that
the military commission members that
the
Convening Authority
has
selected,can decide its existence as a question of fact. t instructs the Department of
Defense that it may only convene military commissions to
try
offenses
triable
by
militaty commission as provided
in
this chapter, 10 U.S.C. 948b(b), and Han
offense ... is triable
by
military commission under this chapter only if
he
offense
is
committed
in
the context of and associated with hostilities.
Id.
950p(
c)
(emphasis added). Trying someone for an offense that is not
triable
violates
explicit statutory [and] constitutional guarantee[s]
that
trial will
not
occur.
Midland Asphqlt Corp. v. United States, 489 U.S. 794, 801 (1989).
(U) The Convening Authority is owed no deference when construing express
statutory limits
on
his authority.
He is
not given
the
authority to declare
ex post
facto
wars. The Department
of
Defense may not bootstrap
itself
into an
area in
which it has no jurisdiction(.] Federal Maritime Comm n
v.
Seatrain Lines, 411
U.S. 726, 745 (1973). f he peculiarity ofGuantanamo is stripped away, this case
is no different.than In r Bituminous Coal Operators Ass n, 949 F.2d 1165 (D.C.
Cir. 1991), where this Court grant[ed] the writ not because the district judge
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l f
8 1 s t t 8 E I I F I ~ B
simply 'abused his discretion,' but because
he
has no discretion to impose on
parties against their.will
a
surrogate judge,' a substitute from the private bar
charged with resporlsibility for adjudication
of
the case.
Id
at 1168.
U) Evaluated under the likelihood
of
success standard applicable to
preliminary injunctions or the higher standard applicable to writs
of
mandamus,
Al-Nashiri's entitlement
to
relief is clear. The political branches were collectively
unwilling to recognize the applicability
of
the law
of
war in Yemen
at
any time
relevant to the charges against the accused. Those charges cannot therefore be tried
y a law-of-war military commission.
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ut f8Is/t88IFtr 8
m.
(Uj '.AL-NASHIRI
WILL SUFFER IRREPARABLE
HARM
IF
HE IS TRIED FOR CAPITAL CRIMES
OVER WHICH A
MILITARY
COMMISSION
HAS
NO
PLAUSIBLE
CLAIM OF JURISDICTION.
(H)
1 N a s h
will suffer three distin
ct
irreparab
le
harms if
relief
is denied.
First,
he
will
be permanently deprived
of
a statutory and constitutional right not to
be tried
by military
commission for offenses that are not triable in a
military
commission. Second,
he
will be depriv
ed
of
he ability to mount an effective
defense in a capital trial. h i r d ~ given the location and unusual character of hese
proceedings
as
well
as
the extreme
circumstances of his
prior
custody,
Al-Nashiri
will
suffer
unique and.
irreparable psychological harms that promise
to
permanently
compromise his ability
to
defend his
legal
rights.
A.
~ A J . . : N a s h i r i
will lose his statutory
and
constitutional
right not to
be
tried
in a
tribunal
that
lacks
any
colorable claim
of
jurisdiction.
ttJ If Al-Nashiri is tried by a mil itary commission for offenses that both the
Congress and the Supreme Court have specifically stated
are
not so triable, he will
suffer
a
p ~ r m a n e n t loss ofhis right
not
to
be
tried. This Court recognized this
precise legal harm in Hamdan, when it ruled that "[s]etting aside the judgment
after
trial
and
conviction
insufficiently
redresses the defendanrs
right
not
to
be
tried by a tribunal that has no jurisdiction." Hamdanv. Rumsfeld, 415 F.3d 33,
36
(D.C. Cir. 2005) rev don other grounds 548 U.S. 557 (2006) (citing bney
v
United States, 431 U.S.
651, 662
(1977)).
For
the same
reason, many of
the
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Supreme Court's landmark cases on
military
jurisdiction came to the Court as pre-
trial challenges. See e.g.
eid
v Covert 354 U.S. 1 (1957); Toth
v
Quarles 350
U.S.
11
(1955);
Ex parte Quirin
317 U.S. 1 (1942).
lsl) ;J o be sure,
not
every objection
an
accused
may
have to
his
trial
implicates
a
right not to be
tried.
Here, however, Al-Nashiri has made
a
substantial
showing that the constitutional and statutory prerequisites for military
jurisdiction
over
battlefield conduct
are
completely absent. This is clear
enough
from
Congress' choice
of
the word Htriable in 950p(c ), as opposed to punishable or
liable
or any other term that
would
afford an individual a right not to be
convicted,
as
opposed to the right not to be tried at all.
See Abney
43
l
U.S.' at 662,
n .7 (pre-trial judicial review is necessary when a statute conferred
...
a right not
to face trial at all
unless
the terms
of
he statute were satisfied).
(U)
On two separate occasions, the Supreme Court has dealt with the
precise
claim raised here on pre-trial habeas. In Hamdan one
of
the petitioner's primary
challenges was to the military'sjurisdiction over pre-September 11th
conduct.
While the majority decision relied on the commission's other statutory defects, a
plurality looked to these deficiencies
in
the time and place allegations
' '
and found
that
they
underscore - indeed are symptomatic
of
-
the
most serious defect
of
his
charge: The offense
it
alleges is not triable by law-of-war military
commis
sion.
Hamdan
548 U.S. at 600 (plurality op.). And
eid
the
Court
took up a pre-trial
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.
..
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habeas challenge to whether military dependents were subject to military
jurisdiction for capital crimes committed outside an area where active hostilities
were
underway{.
)
Reid
354 U.S.
at
35.
~ n the
military's very assertion
of
urisdiction exceeds
the
statutory
and constitutional limits on what is triable
by
the military, that violates an explicit
statutory [and] constitutional guarantee that trial
will
not occur.''
idlandAsphalt
489 U.S.
at
801;
see also Al-Nashiri
791 F.3d at 80 n.6. Al-Nashiri therefore
asserts one 0f a small but well-established class
of
cla.ims that implicate a righi
not to be tried that is irretrievably lost if it
can
be vindicated only aft.er trial.
B. -fWt-The substantial risk of retrial in a capital case imposes
irreparable harms to Al-Nasbiri's ability to defend himself.
(U) ['rial
by
a military commission that lacks
all
jurisdiction also imposes
irreparable practical harms
that
cannot be adequately remedied
by the
prospect of
post-trial review. I fAl-Nashiri prevails on the single question of Jaw at the center
of
this case, either
now or
on appeal many years from
now
,
he
faces the prospect
of
trial under the
SDNY
Indictment. Postponing judicial review simply
f 0rces him to
endure a gratuitous capital trial and years of post-trial delay first.
(U The
irreparable practical harms the pros
pect of
retrial imposes have been
recognized
as
a basis for relief n far less extreme circumstances.
In
Rafeedie v.
LN.S.
880 F.2d 506, 517-18 (D.C. Cir. 1989), this Court affirmed
the
necessity
of
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w
f
8fstr08WI 8
injunctive reliefbecause
an
individual facing a summary deportation r o ~ e e i n g
would be irreparably and seriously injured
if
it turned out that it lacked
jurisdiction over him. This was
be
c
au
se forcing the petitioner to wait for
post
hoc
review presented him with a Catch-22.
Ifhe
fully defended himself in the
deportation hearing, the government would know his defense in advance of any
subsequent ... proceeding. Id. Ifhe held back and bet on his jurisdictional
challenge, he ri sk[ed] forsaking his only opportunity to defend himselfon the
merits. Id.
U) Given the possibility
of
being executed if he is convicted, Al-Nashiri
lacks the ability a ,ion-capital military c_ommission defendant might have to take
such risks. The prospect ofdeath forces grisly choices that distort n accused's
trial strategy in ways
that
cannot be sufficiently corrected by post-trial review. See
ay v. Noia 372 U.S. 391, 439 (1963), abrogated on other grounds by Coleman v
Thompson 501 U.S. 722 (1991 ). A defendant facing the death penalty faces unique
practical and legally-cognizable disadvantages that result from being
forced
into trial tactics that
are
designed to avoid the death penalty but that have the
consequence
of
making conviction more likely.
United States
v
Quinones
313
F.3d
49, 59 (2d Cir. 2002);
see also United States
v
Harper
729
F.2d
1216, 1223
(9th Cir
. 1984).
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W)
The
awesomeness of he death penalty has no less impact when
applied in Guantanamo.
Grisham.
361 U.S. at 280. Every decision Al-Nashiri
makes
in
the military commission falls into the Cat.ch-22 this Court identified in
f e d i e . As an ethical matter,. his lawyers must be significantly more vigilant
about litigating all potential issues at all levels in a capital case than in any other
case. American
ar
Association Guidelines for the Appointment
and
Performance
of
Defense Counsel in Death Penalty Cases 3 Hofstra L. Rev. 913, 1028 (2003).
Yet, looming
in
the background is the knowledge that prevailing post-trial on the
single issue raised here will leave
him vulnerable to the SDNY Indictment. Despite
the
fundamental jurisdictional doubts that hang over this case, Al-Nashiri must
mount a full
and
complete defense in Guantanamo while at
the
same time the
government
can
treat this military commission trial as a dress rehearsal.
( ')
' '
Time
and
again the [Supreme] Court has condemned procedures in
capital cases that might be completely acceptable in an ordinary case.
Caspari
v.
Bolden 510 U.S. 383, 393 (1994) (quotations omitted). In fact, when the Supreme
Court first invalidated military jurisdiction on the very claim Al-Nash.iri now
raises, Justice Harlan concurred separately.to emphasize that
[s]o
far as capital
cases are concerned, ... the law is especially sensitive t6 demands for that
procedural fairness which inheres in a civilian trial where the judge and trier of fact
are not responsive to the command
of
the convening
a u t h o r i t y . ~ Reid
354 U.S.
at
8
f
@ J s ' t S B I F l f ~
UNCLASSIFIEO FOR PUB C RELEASE
USCA Case #15-1023 Document #1594688 Filed: 01/20/2016 Page 61 of 95
7/25/2019 2015-11-20 Al-Nashiri Merits Brief [REDACTED]
62/95
UNCLASSIFIEO FOR PUBLIC RELEASE
ut T8ts1 1BBIPl 98
77
(Harlan, J.,
c o n c u r r i n g ) ~
see
also Grisham
361 U.S.
at
280
( ' ~ [ T ] h e
death
penalty is so irreversible that a dependent charged with a capital crime must have
the benefit
of
a jury. ).
C. ~ i v e n the unusual
nature
of the proceedings in
Guantanamo,
Al
Nashiri
will suffer
irreparable
psychological
harms i
he
is
subjected to a
gratuitous death
penalty trial.
~ A l N a s h i r i
faces unique and substantial harms that result from t