2016 01 15 Al Nashiri Reply Brief

7/25/2019 2016 01 15 Al Nashiri Reply Brief

1/46

UNCLASSIFIED FOR PUBLIC RELEASE

filed

wit

h Classi

fi

ed

1TI ( Officer

15-5020 1s

[Oral argument scheduled February 17 2016]

FOR

THE

DISTRICT

OF

COLUMBIA CIRCUIT

Docket Nos. 15-5020 15-1023

ABD

AL-RAHIM

HUSSEIN AL

-NASHlRl

v

BARACK OB

AMA

et

al.

Appellant

Appellee.

AP

PEAL FROM THE

UNIT

ED STATES

DI

STRICT

COURT

FOR THE

DISTRICT OF COLUMBIA

IN

RE ABO

AL-RA HIM HUSSEIN AL-NASHIRI

PETITIONER-APPELLANT S REPLY BRIEF

Michel Paradis

Department of Defense

Military Commissions Defense Office

1620 Defense Pentagon

Was

hington

DC

20301

l .703 .696.9490x115

[email protected]

Richard Kammen

Kammen

Mou

dy

135 N. Pennsylvania St. Suite 1175

Indianapolis IN 46204

1.317.643.6009

richar

d.kammen

@

os

d.mil

Counsel or Petitioner-Appellant


USCA Case #15-1023 Document #1595007 Filed: 01/21/2016 Page 1 of 46


2/46


lJNCLASSWfED

~ C E R T I F I C A T E AS TO PARTIES, RULINGS AND RELATED CASES

-

I. ~ P a r t i e s and Amici Appearing Below

a. Abd Al-Rahim Al-Nashiri,

Defendant-Petition

er

b -H1 United States ofAmerica

c. Barack Obama, et

al.

Respondents

d .

-H7 micus Curiae Retired Generals, Admi rals Colonels, James

Brosnahan on brief)

e ~

mi

cus Curiae

David Glazier, T

ho

mas

Mcinto

sh on brief)

II.

~ P a r t i e s

and amici Appearing in this

Court

a.

~

Abd Al-Rahim Hussein Al-Nashiri, Petitioner-Appellant

b -H? U S Department ofDefense, Responde

nt

c. ~ Barack Obama, et al. Appel/ees

d

~ Amicus

Curiae Retired Generals, Admirals Colonels, James

Brosnahan on brief)

e ~ Amicus Curiae David Glazier, Thomas Mcintosh

on

brief)

f ~ Amicus Curiae Physicians for

Human

Rights, David

Remes

on brief)

g. Amicus Curiq e National Institute ofMilitary Justice, ~ r i

Montalvo on brief)




3/46

UNCL SSIFIED FOR PUBLIC RELE SE

L

il

JCL A88fFI E:B

III.

~ R u l i n g s

under Review

This case consolidated two actions. The firs t is a petition for a

writ of

mandamus and prohibition to

the

military commission created by Convening Order

11

-02 (Sept. 28, 2011 ). The second

is

an appeal from the denial

of

a preliminary

injunction in a habeas case by the United States District Court for the District

of

Columbia, Case No. 08-1207. This latter decision is reported at Al-Nashiri

v

Obama 76

F.Supp.3d 2 18 (D.D.C. 2014).

IV.

Related

Cases

~ P e t i t i o n e r

was previously before this Court

in

Case No. 14-1203. That

case raised this Court s jurisdiction to issue equitable relief via the All Writs Act,

28 U.S.C. 1651, to military commissions convened under the Military

Commissions Act

of2009, 123

Stat. 2190 (2009). This Court's decision was

reported as

Jn

re: Al-Nashiri

791 F.3d

71

(D.C. Cir. 2015).

Dated:

Jan

uary 15,

2016

By: /s/ Michel Paradis

Counsel

or

Petitioner




4/46


blff

CLASSFFFEE

~ T A B L E OF CONTENTS

~ Table ofAuthorities .................................................. .... ................................. iv

~ Glossary of Terms ....................

..................... ................................. ................ vii

~ S u m m a r y

of

Argun1ent ........................ ............................................................. J

~

Argument .............................................................................................................. 2

I -tf? There is no plausible argument that the charges in this case

occurred in the context of hostilities .... ..... .........................

..

............................

..

2

II. Al-Nash iri will suffer irreparable harm in the absence

of

prompt judicial review ........................................................................................

6

III.

~ T h i s

Court should reaffirm that habeas corpus remains

an essential safeguard against the unlawful assertion of military

j urisdiction .................................................. .................................................. ...... 21

A.

~ H a b e

corpus is the traditional vehicle for challenging military

jurisdiction, including the very challenge at issue here ........... ...................... 22

B. C o u n c i l m a n abstention is inappl icable ............................................

24

C.

The military comm

is

sions in Guantanamo neither need, nor warrant,

the creation of their own abstention doctrine ................ ................................. 26

~

Conclusion

........................................................................................................ 9

~ C e r t i f i c a t e

of Sen ice ............................................................. ........................ 30

~

Cer-tificate of Compliance with Rule 32 a) ...................................................

31

~ S t a t u t o r y

Regulatory Addendum................................................................. I

111




5/46

'


U

4CbitSSIFEB:B

T B L E

OF AUTHORITIES

*Authorities upon which Petitioner chiefly relies are_marked with an asterisk.

. Cases

*Hamdan v.

Rumsfeld

, 548 U.S. 557 (2006) ............................4,

14

, 17, 24, 27

,

28

*Lee v. Madigan, 358 U.S . 228 1959) ................................. : .............................. 16

Re

id v. Covert, 354 U.S. 1 1 9 ~ 7 ) ......................

i . . . . . . . . . . . . . . .. . . . . . . . .. . . . .

10, 16, 17, 18

*The Protector,

19

U.S. 700.

(J 870)

.................... ........ ... : ............................. 8,

10

Anderson

v.

Carter,

802

F.3d

4

D:C.

Cir.

2 0 ~ 5 )

............................... ..... ; ............ 10

Bahlul

v.

United States, 767 F.3d 1 (D.C.

Cir

. 2014) ....: ........................ ............ 27

Bas v. Tingy, 4 ball. 37 (1800) ............. -....................................., ......................... 10

B o u ~ e d i e n e

v. Bush, 553 U.S. 723 (2005) ...._..................._....... ; .... .............

.

22, 28

Bowen v. Georgetown University Hosp., 488 U.

S.

204 (1988) ...... . .............. . ...

.4

Bridges v. UntiedStates,

346

U.S.

209 (I

5 ~ ~

........

.... ......................... .............. 16

_

.

Burlington J:ruck Lines v. United States, 371 tJ,.S. }56 (1962) ............................. 4

.

. . .

.

Clinton

v

Campbell,

203 F.3d

J9.(D.C. Cir.

200-0)

....... .....

:, .......: .

7

12

Da Costa v. Laird, 471 F.2d1146 (2d Cir.

1913) ... ;

.

... :

.

...........

.

: ..............

IO, 11

. . . l . . . . . .

Ex

parte

Milligan, 4 WalL 2 (1866) ...................... ....:.: ..: . ............... .....: ...... : . 24 :

. .

.

Exparte

,Quirin,

317

U.S. 1 (1942) ................ ............... ............

..

..... ...... lO, 16,

24

:

Ford

v.

Unitecj States, 273 U.S. 593 ( 1927). ........

..

,

.

: ... .,

..

: ....... : ..:.-:........ : .....17

.Grisham v. Hagan

, 361

U.S. 2 7 ~ (1960)

..

. ..: ...... : ..... : . ......: ...

.

.. ........., ..... _....... l 8

H a ~ d q n

f l . u m ~ f e / d

415 F.3d 33 (D.C. Cir. ioos ......

:: :

..

:.....:

..........

....: ...

24 ,

H a m d ~ n v . United States, 696F.3d 1238 (D.C. Cir. 2012) .... : ............ ....... .... .. 27

Hennis v. Hemlfck, 666.F.Jd

270

(4th Cfr. 2012) ..................... ............ : ........: .

18

ln -:e Yamashita, 3.27 U.S. 1 (1946)........ : .....

_.

......

: ..... ..... . . .............

,.

.................. 23

John,s tm v. E i s ~ n t r a g e r , 339 U.S. 763 (1950) .: .. . .........: ..... . .......................: ......23

Kusperv.

P ~ n t i k e s

4l4

U.S.

51

(1973) ....: ......... .............

.

...... ....::.:. .... ...... .....

Madsen v .Kinsella, 3'43 U:S.

34.1

(1952) .....................................: ..:.. ....... ,........ .17

.

.

.

.

McE/roy

v. Guagliardo,

361 U.S. 281, 286 (1960) . : . ..................................... ... ' 7

Morgan v. Mahoney, 50

MJ.

_33, 634 (A.F.C.C.A. 1 9 ~ 9 ................................. 18

'

.




6/46

L

' .

UNCLASSIFIED

FOR PUBLIC RELEASE

I .

lR TG i tSS ifIE

Murray v. Haldeman, 16

MJ.

74. (C.M.A. 1983) . ..........: ................................

18

New v. Cohen, 129

F.3d 639

(D,.C.

Cir. 1997) ......................... : ........................... 25

Obaydullah

v.

Obama,

609 F.3d 444

(D.C. Cir.

201O)

..... ...........................

24,

28

Ratzlafv United States,

510 U.S. 135 (1994)........: .......: ... : .............

..

.... ...........

15

Reinboldv. Evers,

187

F.3d

348

(4th

Cir.1999) .................................................. 11

Schlesinger v. Councilman,

420 U.S. 738 (1975) ..... .: .............................

.....

22, 26

.

.

Strate v. A 1 Contractors,

520 U.S. 438 (1997) : ..... ........

....

.... .... ..... ............... 25.

Swain v. Pressley, 430 U.S . 372 (r977) ......................

.

......: ........................... : .. 23

. I

The


7/46


Executive Materials

Address to a Joint Session o Congress

200 l \VL 11 03321

(Sept. 20,

2 ~ 1 ...................

.........

. .................. .........

.... ................

2

Determination of

Enemy

Belligerency and Military Detention

2002 WL 34482990 (Jun. 8, 2002) ........

..

............................. ...................... .. .... 3

E.0.

13269, 67

Fe

d. Reg. 45,287 (July 3, 2002) ....................

..

................ ........ .... 2

Letter

o

he

Presid

ent to the

Speake

r

o

he House

and

the

Pre

sident Pro Tem

pore o

he Senate 2 Pub. Papers 1464

(Aug. 21, 1998) ................ ........................ .................................... .................. ... 6

Nat

' l Comm n on Terrorist Attacks upon the

U.

S

.

The 9

Commission Report (2004) ........... ..... .................. ..... ...... ..... ..... ....... ............. 6, 7

Proclamation 7463 ,

66

Fed. Reg. 48,199 (Sept. 14, 2001) .............................. .... 2

Radio Address by the President to the Nation 1995

WL

306814 (May 20, 1995) ............

..

..................................

..

................ ........ .......... 9

Miscellaneous

17

Car.

I. c.

10 ........ ........................ ........ .............

...

............................. ........ ......... 22

Al-Aulaqi v Panetta Case No. 12-cv-O l 192-RMC

(D.D.C., Jul. 18, 20 12) ...... ........ ... ............................................................ ... ..... S

Blacks Law Dictionary (9th Ed. 2009) ................................................ .......... ....

.14

DaHin H. Oaks, Habeas Corpus in the States 1776-1865

32 U.Chi.L.Rev. 243 (1965) ...... , ........ ......................... .... ............... ............... 23

Edward Jenks, The Prerogative Writs in

En

glish Law

32 Yale L.J. 523 (1923) ...................... ...............

..

.................... ...... .......... ....... 22

Edward Jenks, The Story o Habeas C o p u s ~

13 L.Q.Rev. 64 ( 1902) .......... .... .. .. .................................. .......... ............ .. .....

...

22

R.J. Sharpe, The Law

o f

Habeas Cor

pus

(1990) ....

..

...................................... .

...

.. 22

Sir Edward Coke,

Institutes o f he Lawes ofEngland

(1644) ............. ...............

..

22

The Federalist : .........: ................................. ..................... .......... ......................... 23

The Military Commissions Act

o 2

009: Overview and Legal

Issues CRS R41163 (Apr. 2010) .. ................. ........ .... .................................... 13

William Winthrop, Military Law Precedents (2d ed. 1920) .

..

.. ....................... 17

vi




8/46

UNCLASSIFIED//FOR PUBLIC RELEASE

UtlGLhSSIFID

~ O S S R Y

OF TERMS

2006 Act.. .................Military Commissions Act of2006, 120 Stat. 2600 (2006)

2009 Act.. ................. Military Commissions Act

of2009,

123 Stat. 2190 (2009)

706 Report ........RMC 706 Sanity Board Evaluation ofAbd Al Rahim Hussayn

Muhammad Al Nashiri: ISN 10015 (Mar. 28, 2013)

App................................... ......... ....

Petitioner s Appendix Vol.

l

(Nov. 20, 2015)

(-tf?

App.II .................... ...............

..

..

.. Pe

titione

r's

Appendix Vol. Il (Nov. 20, 2015)

fl+ AUMF ......... Authorization for the Use ofMilitary Force, 115 Stat. 224 (2001)

~ CMCR .. ....................................... ....U.S. Court ofMilitary Commission Review

r o s b y Deel. ...............Declaration

of

Sondra Crosby,

M.

D. (Oct. 24, 2015)

.................................... ...Brief for Petitioner-Appellant, dated Nov. 20, 201 5

~ Resp..... ..... ........... ..............................

Br

ief for Respondent, dated Dec. 28, 2015

( 'Supp.Pet

............Al-Nashiri

v

Obama

et

al. Case

No. 08-1207, Supplemental

P

i t i o n

for a Writ

of

Habeas

Corpus (D.D.C.

May

15

, 2014)

UCM

J .................... Uniform Code of

Military

Justice, 10 U.S.C. 801,

et seq.

\V

inthrop ............. William Winthrop, Military aw

Pr

ecedents (2d ed. 1920)

Yll




9/46


~ S U M M A R Y O F A R G U M E N T

The

government asks this Court

to

pretend that the world on September

IO

and September 12, 2001 was the same.

It

was not. On September 11th, this

country was attacked. That attack compelled the political branches to take the

nat

ion to

war

. The consequences of hat decisi

on

have pervaded American life for

over a decade. The goverrunent attempts to minimize the singular historical,

political, and legal significance of September , 200 I, in order to justify its

litigation

strategy in a capital case, whose underlying allegations did not occur in

the

context of hostilities.

C o n g r e s s

reformed the military commission system in 2009 to limit

what

was triable in Guantanamo. 10 U.S.C. 950p(c).

It

codjfied centuries of

constitutional law that protects the judicial power from encroactunent

by

limiting

military jurisdiction over non-service members to crimes committed in theaters

of

actual hostilities. The duty to enforce that

Limit

on the Department of Defense's

power

to remove a capital prosecution from the courts of law falls to this Court.

~ W i t h o u t

this Court s intervention, Al-Nashiri will permanently lose his

right

not

to

be

tried

by

the military for offenses that are not triable by the military.

And

he will needlessly endure

an

d hoc

capital trial in a black

i t e , ~

suffering

harms that prevailing on a post-trial appeal will

not

remedy.

1

L

C L

S S I F I E B




10/46


~ A R G U M E N T

I.

THERE

IS NO PLAUSIBLE ARGUMENT

THAT

THE

CHARGES IN

THIS

CASE

OCCURRED IN THE CONTEXT OF HOSTILITIES.

1.

bl7 The

government claims that a writ is inappropriate here because

the existence

of

hostilities prior

to

September 11, 2001, is an open question.

Resp. 27. It plainly is not. Every court to have decided comparable issues,

including this Court, has

marked the

start of

the

present hostilities as September

11, 2001. Pet. 38. That unanimous judgment has been shared across the

government for obvious reasons.

( 'The President succinctly summarized

the

significance ofSeptember 11,

2001.

On

September

the

11th, enemies of freedom committed an act of war

against our country ... and night fell on a different world, a world where freedom

itse

lf

s under attack.

ddr

ess

to

a Joint Session ofCongress

200

L

WL

1103321

(Sept. 20, 2001). He then identified e p t e r n b ~ r 11, 2001, as precipitating a

national emergency that remains ongoing. Proclamation #7463, 66 Fed. Reg.

48,199 (Sept. 14, 2001 );

see also

E.O. #13269, 67 Fed. Reg. 45,287 (July 3, 2002)

( designat[ing] as a period in which

the

Armed Forces of the United States were

engaged in armed conflict with a hostile foreign force the period beginning

on

September 11, 200 l ).

lR

:fCLPs:SSfFIEB




11/46

UNCLASSIFIED FOR PUBLIC RE LEASE

~

Office of Legal Counsel

lik

ewise looked to

September

11,

200

l, as

the start of hostilities for a range of wartime policies. See, e.g., Determination o

Enemy Belligerency and Military Detention,

2002 WL

34482990 *7

(Jun.

8,

2002)

( As

we

have

advised elsewhere, the September 11, 200 I _attacks on t h ~ World

Trade Center

and

the Pentagon began an intemationaJ armed conflict between the

.

.

.

.

.

Military Commissions

to Try

Terr_orists

25 Op.

0.L.C.

238,

239 (2001)

( the

President may establish military commissio?S to try

and

punis4 terrorists

appr

ehended as

part ofthe n v ~ s t i g a t i o n iri

to, or

the

military an d intelligence

. . . . .

-

t

operations in response to, the September 11 t t a c k s :

Every federal statute pertaining

t

hostilities, includ

iIJ.g

the

d ~ t f o i t i o n of

. . .

'

.

' 'veteran, either takes effect on or treats its contemporary starting point as

September I 1, 200J. See, e.g., 5 U.S.C. 2108(1) (defining

vete

ran , inter alia,

.

'

. . .

.

. .

'

.

.

.

as someone

who

served

d

uring the period beginning on September 11, 200

I );

10

\

'

.

no

aspect

of

mili

tary

life

or law has treated the COLE bombing

as

occurring in the context

of

hostilities.

It

occurred when the Navy operated under peacetime rules of

engagement, under which neither al Qaeda or any other terrorist group had been

designated hostile. And there

was

no change to this peacetime status as a result

of

the Cole attack." Glazier Amicus, Ex. 2, at 4.

T h e

D e p a r t m ~ n t

ofDe

fense's decision to violate a Congressional statute

does not cast this history or the meaning of federal law into doubt.

Bowen v

Georgetown U n i v e r ~ i t y Hosp.

488 U.S. 204, 213 (1988) ("Deference to what '

appears to

be

nothing more than an agency's convenient litigating position wo

ul

d

be

entirely inappropriate ."). This Court should not credit, et alone give deference

to, "appellate counsel 's post hoc rationalizations for agency action."

Burlington

Truck Lines v. United States 371

U.S. 156, 168 (1962).

~ I

n

fact, the government's arguments here contradict

its

position in every

other case involving

com

parable issues.

In

Hamdan the Supreme Court did "not

question the Government's position that

th

e war commenced with the events

of

September

11

, 2001."

Hamdan v Rumsfeld

548 U.S. 557, 599 n.

31

(2006)

4




13/46


lH

'fCL'\SSIFIED

(plurality op.). More recently, in AJ-Aulaqi v Panetta Case No. 12-cv-01192-

RMC (0.0.C., Jul. 18, 2012), a Bivens action involving a U.S. citizen kiJled in a

'

drone strike

in

Yemen, the government successfully moved to dismiss, arguing that

the U.S. government has been engaged

in

an armed conflict against al-Qa'ida and

associated forces since 2001 and t

hat

Executive Branch

de

signated Yemen as a

theaterofhostilities in 2010. Al-Aulaqi Dkt. 18 at l-2 (D.D.C., Dec: 12, 2012).

When the plaintiff countered that the applicability of the law of war in Yemen

should be treated as mixed question

of

law and fact, government counsel

ridiculed him for fail[ing] to cite a single United States court case that sets a

particular standard for when an

anned

conflict arises or ends as a

justic

iab

le

question of fact because the recognition of a 'state

of war'

is a 'political act[.]'

Al-Aulaqui

Dkt.

23 at 20 (O.D.C. Mar. 7, 2013).

2. o t b

for

the purposes of this case, the government is

noncommittal about when hostilities began. At one point, it suggests a state of

hostilities has existed since

1992.

Resp.

41.

But its principal

con

tention is that

hostilities have existed since

at

least as far

back

as 1998, following

th

e Embassy

Bombings in Kenya and Tanzania. Id. at 27.

In

no

oth

er context has the government made this argument, not

the

least

to argue that the Embassy Bombings created a state ofhostilities that necessitated

the resort to military conunissions.

In

fact, the only Guantanamo detainee ever

5




14/46

UNCL SSIFIED

FOR PUBLIC RELE SE

UNCLASSIFIED

transferred to federal court for prosecution was charged and convicted of being a

ringleader of the Embassy Bombings.

United States

v.

Ghailani

733 F.3d 29 (2d

Cir

. 2013). Like Al-Nashiri, this man was taken into custody by the CIA and, prior

to h

s

transfer to the Southern District ofNew York, was categorized as a High-

Value Detainee.

1

' The

government offers no rationale for why hostilities

necessitates military commission prosecution here,

but not

the bombing

it now

asks this Court to equate with Pearl Harbor.

(

'Of

course,

the

Embassy

Bombing

s were not Pearl Harbor. While the

President took discrete action against Afghanistan and Sudan, his report

to

Congress concluded by saying, The U.S. forces involved in these strikes have

completed their mission. Lett

er

o f he President to

the

Speaker of he House

nd

the President Pro Tempore

of

he Senate

2

Pu

b

Papers 1464 (Aug.

21, 1998).

Had

he not terminated hostilities in this way, had hostilities remained ongoing, he

would have needed to obtain Congressional authorization

by

the end of 1998.

50

U.S.C. 1544. He did not do so. Nor did he file any subsequent War Powers

Resolution reports relating to hostilities in Afghanistan, Sudan, or any terrorist

group.

Nor

did

he

change the military's standing rules of engagement.

T h e

government claims

on

th

e strength

of

the 9/11 Commission Report

that President Clinton considered military operations, in addition to an FBI

terrorism investigation, in response to

the Cole attack.'' Resp. 42.

But

the

6

lJN '

CLA:SSJFlED

UNCL SSIFIED

FOR PUBLIC RELE SE



15/46


contemplation of hostilities is far different from undertaking them. Under that

reasonjng, the United States is engaged in hostilities with Russia, China, North

Korea, Iran, and host of other nations and non-state actors.

The reasons the 9/11 Commission gives for why hostilities were not

actuaJJy initiated prior to September 11, 2001 , demonstrates why courts require

bright lines fixing where

and

when

the law of war

applies. The 9/11 Commission

Report highlighted numerous political and geostrategic reasons not to escalate the

threat from Al-Qaeda to the level of hostilities before September 11, 200 l. Nat'l

Comm'n on Terrorist Attacks upon the

U.S., The 91

11

Commission Report

131-41

(2004). Every official ... said that it was almost unthinkable, absent a provocation

such

as

91 1, because

of

poor prospects for cooperation from Pakistan

and

other

nations

and

because they believed

the

public would

not

support it.

Id

at 137.

The

government asks this Court to forget

t h ~ t

[b]efore 9/11, al Qaeda and i

ts

affiliates

had killed fewer than 50 Americans, including the East Africa embassy bombings

and Cole attack . The U.S. government took the threat seriously, but not in the

sense of mustering anything like the kind of effort that would be gathered to

confront an enemy

of

he first, second,

or

even third rank. at 340. This

remained

true throughout the early

Bush Admin

istration. President

Bush

told us

that before 9/ 11 there

was

an appetite in the government for killing

Bin

Ladin, not

for

war. Id

at

209.

o lGL11

SSlfIE:9




16/46


UH

CLASSfFIED

Most wars have been preceded by

ac

ts

of

violence that the political

branches deemed insufficient to warrant the invocation of the law of war.

Fort

Sumter, for example, was hardly the first anned provocation for the Civil War.

Acts of hostility by the insurgents occurred

at

periods so various, and

of

such

different degrees

of

importance, and

in

parts

of

the country so remote from each

other, both at the commencement and the close of the late civil war, that

it

would

be difficu lt, if not impossible, to say on

wh


17/46

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\.

lJHCLASSffIED

concluded that that question (and thus the triggering f t h e l a ~ s war) is one for

the political branches. 25 Op. 0.L.C. at 261.

The

government attempts to distinguish

the

COLE bombing on

the

. .

ground that the perpetrators used large bombs.'' Resp. 32. But sodid Timothy

.

.

McVeigh.

1

So

did the

Ku

Klux Klan. 'Both believed themselves to

e

3 : ~ war, but

the Uniteq States never bought into these ' 'wars.

2

The

law presumes the.

~ t i o n

is

at peace absent the affi1mative choice to undertake the law of war 's trade-offs by

. .

those who are politically ac.countable ~ o r the consequences.

And c;mly

on

September

11 ; 200

I, did

th

is colintry deem those trade-offs worthwhile.

. ' . ' . . .

3. ~ The gov.emment l ~ i m s that a contemporaneous pub li_~ c t by the

political branches is not a ''.necessary

con

d1tion for h

o s t i l i t i e ~

toexist. Resp.

36.

But

that is e.iactly what the law req'uires. Given the ambiguity ~ v e r when violence

. . , I . . .

rises to a level

.

sufficient to implicate the law of war,

It

is e . c e s s C z r y , therefore, t

. . . .

. ..

;.

' 1

1

.. ~ In f a c ~ , the first public

use

of the phrase

war on

terrorism by a President .

prior e m ~

1,

iOOl was after the Oklahoma City bombing.

Radio Address

by

the President

to

the .Nation,

1995 WL .306814

(May 20,

199S)

( We mustn

't

let.

ou

r country fight

the war

against

e r r o r i ~ m

i l-armed or ill:; prepared. ).

2

The

Supreme Court has

l w a y s r e j e c ( ~ d

the notion

t h a t n o n - s t ~ t e

actors

p n

self-

deputize arid effectively legitimize v i o l ~ r : i c e under international law

U r i i t ~ d S.tq es

v.

Klintock, 5

Wheat. 144, 149-:.50

{i820).

And for good reason.

in

a

coritextof

- .

.

hostilities, perpetrators

of

violence are

immune

from all prosecution if hey. cond

uct

their ~ c k s as law.f\ll combatants.

See,'e.

g

United States

v.

Hamidullin ,

2015 WL

4241397 at *14 (E .D.Va., Jul. 13, 1015).

.

.

9

. .

I D

1

G

1

OCXF

1

E

VJ

'fVJ....i.11..:JV...ll

. J . - ' ~ .

J

UNCLASSIFIED

FOR PUBLIC RELEASE

.

.



18/46

.

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FOR PUBLIC RELEASE

.

:RfCbASSff I ED

refer

to

some

public

act

of he political departments

of

the o v e m m e n to fix the

dates. Th e Protector 79 U.S. at 702 (emphasis added); Da Costa v. Uiird 471

\

.

F.2d 1146, 1155

(2d

Cir. 1973) (courts cannot decide hostilities exist wit

ho

ut an

.

.

initia l policy determination of a

n d

clearly for nonj,udicial. discretion ) .

~

Political

judgment

is also e ~ s s a r y to determine the geographical

scope

.

.

.

of

hostilities. For example, no ()ne

disputed

that hostilities ,existed in Korea, when

. .

the murders issue in

Reid

v.

C;vert U.s.

1

(I 5 6 ,

were committed.

The

dispositive fact was that neither a p ~ nor Great Britain cold p ~ o p e r be said to

. I

be an area where active.hostilities

wefe

n c f ~ r way the t.ime [the petiti()ners]

. committed their offenses or at the time .they were tried.

1 1. at

3334. The

government_eeks contrary support from

Quirin

because the petitioners in that case

.

. .

. .

were captured iR the United s t a t e ~ . Resp:

4

0. But

during WWII,

the seaboard

was

i v i d e d

i n t ~

m i l i ~ r y

d i s t r i c t s

l n d e ~ ,

t h ~

charge that the

e t i t i o n e r ~

. . .

. ~ s s e d

ou

r

i l i t r y

and .naval

lines

and f ~ p s e s ot

went behind

those

li

ne

s,

.in .

civilian

dress a

nd ~ i t h h o ~ t i l e

purpose. x pane

Quirin ~ 1 7

U.S. l ,

38

(1942).

(

ff?

Moreover,

unlike the

general wa.(' declared in WWII, the war on terror

. .

is a

.limited

war;

limited

in

place, in

o_je?ts,

and

in

time. Bas v. Tingy 4 Dall. 37,

. . .

43 (1'800};

Anderson

v:

Carter

802

.F.3

d 4>8-9

(D.C.

Ci

r

201

S)

(characteri

zin

g

it

. .

.

. .

. .

as

an i m p e r f e ~ t war

under

Bas . Whenever

hostilities have

x t e n d e ~ to

anew

. .

. .

region,

the President

has

issued

War Powers

Re

so

lu

tio

n reports

pursuant

to the

. :

10

.

.

. .

I

,

:

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...



19/46

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express terms and accountability mechanisms of the AUMF. Those reports define

the temporal and geographic scope

of

hostilities,

as

Congress intended when it

made the AUMF subordinate to the War Powers Resolution.

AUMF

2 b) l).

~ T h e government caricatures

our

argument by saying

that if

political

action were necessary, then neither Septemper 11, 2001, nor Pearl Harbor would

be governed by the law of war, since they preceded action by the President and

Congress. Resp. 38.

But

this is a straw

man Wh

ether it was Pearl Harbor,

September 11, 2001, Fort Sumter, or the Gulf of Tonkin Incident, the crucial

question in every case is the status the political branches give to world events when

they happen. At a minimum,

the

legal status

of

events occurring during a particular

President's term of office or a particular session of Congress must be determined

by

the

officials

elected

to

serve

at

that time. A constitutional term

of

office means

nothing if

each

new

party in power can revise the

pa

st and undo

the

judgments

of

its predecessors

nuncpro tune. a Costa

471 F.2d at 1155. The government

cannot rewrite history, changing the record in Orwellian fashion to pretend that .it

reach

ed some

oth

er conclusion.

Reinboldv. Evers

187 F.3d 348,

360

(4th

Cir.1999) (quotations omitted).

4.

-B?

The

government insists that the existence

of

hostilities, such that

the law of war applies, should instead be treated solely as a question of fact for the

military

jury

in Guantanamo

to

decide. Resp. 27. Leaving aside the doubtful

.

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question

of

how a jury would know what standards to apply to those facts,

Clinton v. Campbell 203 F.3d

19

26 (D.C. Cir. 2000), that argument requires this

Court

to conclude that Congress delegated

to

the Secretary

of

Defense's Office the

power to declare its own wars, subject only to the concurrence of he mid-level

military officers it has designated to decide the guilt of a criminal accused.

The

government offers no authority

or

reason that such a consequential delegation of

authority was intended

by

Congress or would be constitutional.

3

-tf) The

government defends its reading of

he

2009

Act on

the basis

of the

CMCR's

2011 decision in Bahlul. Resp. 28-29.

But

the existence ofhostilities was

ne ither contested nor briefed in

the

Bahlul case.

The

only military commission in

3

~ N o r

is the government correct in its characterization

of

the law app

Ji

cable in

international criminal tribunals. Resp. 30 .Contrary to the government

's

suggestion,

those tribunals' statutes define

the

temporal scope

of

the relevant hostilities,

irrespective

of

whatever facts the tribunals may find. For example, even though

sectarian vioJe

nce in the former Yugoslavia began in 1990, the Security Council

limited the Yugoslavia

Tr

ibunal's jurisdiction to violations of international

humanitarian law committed in the territory

of

he former Yugoslavia between 1

Ja.nuary J

991

and a date

to

be determined by the Security Council upon. he

restoration

of

peace. Statute

of

the International Tribunal for

the

Former

Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in

32 I.L.M. 1203, 1204. In other words, despite their apparent treatment

of

hostilities

as a

question

of

fact in particular cases, international criminal tribunals operate

within

a

window oftime and place that has been politically determined to qualify

as

a

conflict subject

to

the

law

of

war, irrespective

of

the

facts

on the

ground.

See

also Prosecutor v Boskoski Tarculovski 2005 WL 2483014 (I.C.T.Y. App. Ch.,

22 JuJ. 2005) (despite

ten

years

of peaceful

independence, the Security Council

had not yet declared the conflict over).

2

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which the issue was litigated was United States

v

Hamdan AEJ 50, at 5 (2008), in

which the commission weighed the significance Congress' grant of urisdiction

over offenses commit ted before,

on,

or

after September , 200 l. 10 U.S.C.

948d (2006). It concluded, not that

ho

stilities existed since at least 1998, but that

[m]embership jn

a

conspiracy that planned and carried

out

the attacks

of

September 11, 2001 will be deemed to be in violation

of

the l

aw of

war;

membership in a

co

nspiracy that planned

or

carried ou t other attacks Jong before

that

date and unrelated to hostilities will not. Id.

Moreover, both Hamdan a

nd

Bahlul were tried under the 2006 Act. The

hostilities element at

issue

derived from

the

Manual for Military Commissions,

n

ot

a statute. Section 950p(c), by contrast, was added as

pa

rt of

the 200

9

Act's

reforms. Regardless of whether the

Manual

makes hostilities an element

of

he

offenses,

and

t

her

eby puni

sh

able by military commission,

Co

ngress determined

that it also needed to be a limit

on

what was tria ble.

As

the Congressional

Research Service explained, this amendment echoed Hamdan as well as the

traditional rule that the law of war has not been applied ... to conduct that

preceded the ou tbreak of

ho

stilities(.] The Military Commissions

ct

of2009:

Overview

and

Legal I

ss

ues

C

RS

R41163, 14-15 (Apr.

20

10).

~ government's hostilities eleme

nt

argument is also irr

econc

ilable

with the text of the 2009

Ac

t.

f

Congress wanted hostilities to be just an element

3

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of the offenses,

it .h

ad

far

more direct means

of o g so

. It couJd h v e ~ for

example,

made a

nexus to

hostilities an element

of

each offense. [nstead, Congress

. . \

codified

a

standalone provision,

which

states

in

no uncertain terms that

an

offense

)

is

triable

...

only if

the offense is

~ m ~ t t e d

in the context

of and

associated with

s i i l j t i e ~ . 10 U.S.C. 950p(c} (emphasis a ~ d e d ) . Under any ordinary

understandir:ig, .triable means [sJubject

or liable to

ju


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more than add a surplus "hostilities element" into these offenses. f Ratz/a/v.

United States, 510 U.S. 135, 140-141 (1994): But what is even more puzzling is

that adding

its

"hostilities element

to

offenses

such.

as

950t(3

l) (Contempt) and

950t(32) (Perjury & b s t r u c t i ~ n ofJustice)

is nonsensical.

Its theory of the

. .

.statute,

therefore,. requires this

Court

to read an additional "hostilities element'' into

a subs

.

et of

hirty-two statutory offenses with.out any

rule

for picking

which

,

.

, . offenses require

it.

5. f anyone is seeking to "upend the system

that

Congress and the

Executive

jointly

created,"

it

is the Depa,rtment of.Defense. Resp. 21. Tpis case

only seeks to eT).force the limits that Congress enacted

to er:i

sure military

.

. .

commissions confonned to l o r i g s t a ~ d i n g military and cqnstitutional Jaw. This is,

. f

therefore, a

paradigm

"Category_-3"

Youngstown

case, where the Executive s

. . ; '

p9wer

is

at

its

"lowest

b b > '

Y o u n g s t o w ~

Sheet

cf/c

f ube

v.

Sawyer,

343 U..S. 579,

638

1.

-952) ( J a c k s o n , , ~ .

concurring).

Like

.Hamdan, -

ik

e Y.oungstown.?.this

Court

' . .

' . .

. .

. '

...__., . .

.has a uty to

n r o r ~ e

the .bound::U.ies iliat o n g i e s ~ has set, - f o r - w r i ~ . ~ 1s at stake is

.

.. .

. . . .

.

. .

_he equil ibrium e s t a ~ P s h e d

by

our consti

tu

tional

system:

,, Id.

. . .

\

. ..

~

H e r e ~

the

Depart.ment

of

De.feiise is

c l ~ i m i n t'h t

:its

post

ho judgm

en

t

.

.

,

. . .

.

. . . . . . .

;

. . . . .

that

hostilit'ies should

have

existed

~ v o

decades

ago

empowers

it

to ~ e m o v

_

federal

prosecution

from

New York to

a

military commission

in u a n ~ n a r p o . Not

.

.

only is this. ~ O r w e l l i a n ,

it

is contrary to the settled rule that where a.law varies

15

. .

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"

..

'



24/46


blf iCLA SS

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criminal procedure on the basis of hostilities, the scope of those hostilities is given

its narrowest possible construction.

Bridges v Untied States 346

U.S. 209, 216-17

( 1953); United States v Smith 342 U.S.

225,

229 (1952). Indeed, hostilities is

construed especially strictly in the setting of a grant of

power

to military tribunals

to try

people

for capital offenses. ee v

Madigan

358 U.S. 228, 231 (1959);

see

also Reid 354

U.S.

at 35

( The exigencies which

have

required

mil

itary ru le

on

the

battlefront are not present in areas where no conflict exists. ). The shear breadth

and indeterminacy of the govenunent's argument, therefore, cries

out

for this

Court's prompt

review.

II. ~ AL-NASHIRI WILL SUFFER IRREPARABLE

HARM IN THE ABSENCE

OF

PROMPT

JUDICIAL REVIE\V.

The

government concedes that interlocutory review is appropriate, either

via mandamus or habeas, where a petitioner assens a

r

ight not

to

be tried. R,esp.

24. It simply contends

that

AI-Nashiri has not asserted such a right because

the

only claim suitable for such interlocutory review is a challenge to personal

jurisdiction. Id.

This premise is mistaken. Military commission jurisdiction turns on the

statu

s of the offense, not the offender. 25 Op. O.L.C. at 254.

f

he allegations

levied

are

not triable by military tribunal,

Quirin 317

U.S. at 29, then the

6

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25/46


Uf +CL' BSIFIED

petitioner has a right not

to

be so tried.

In

the cases the government characterizes

as involving jurisdiction

over

the individual defendant , su

ch

as Reid and

lvfcElroy,

Resp.

24,

there

was no

que5tion about the status of the

accused. The

Supreme Cou

rt

had already held that non-service members

were

triable for

offenses committed in areas of hostilities. Madsen v. I insella,

343 U.S.

341

(1952). Wh at

made

the assertion ofmilitary jurisdiction unconstitutional was the

fact that the crimes

at

issue were committ.ed outside theaters

of

active

h o s t i l i t i e s ~

Reid; 54

U.S. 33-34;

McElroy v. Guagliardo, 361 2 s

286 ( 1960).

'

-HJ

A

law-of-war

military

commission's s ~ ~ j c c t - m a ~ t ~ jurisdiction

is

limited

fo offenses

committed-in

the context'of a war because its

jurisdiction

only

reaches offenses subject to

that law. This was

reaffirm

ed

by the Supreme Court

in

. .

H amdarz. an9 by Winthrop.

Hamdan, .

54 8

U S at 607_ (plurality op.)

(emphasis

in

' .

original);

id.

at 683-84

(Thomas,

J.,

dissenting);

William

Wi

.nthrop,

Military Law

Prece,dents 836-3.7

(2d

ed.

l920)

,'App.

103-04.

And

Copgress rea:ffinne.d this

.

w h ~ n defined.hostilities as a conflic.t subjec.t to

the

law

o ~ w a r .

~ O

U.S.C.

. . . :

. ;

.

.

. .

94

8a(9). Whether an act i.s ''subject.to the law

of

war

literally asks

whether

it is

.

. . . .

,

within the law

of

wa'r's jurisc;iiction, a detenninatio necessarily preliminary

to

the

. - .

,. -

trial.

Ford v .United States,

273 U.S. 593,


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n r q x t q 9 1r1

V J - \ _....L.J

C

U U 1 l

.L..L.JJ. 1

1998) (reviewing on mandamus whether a service-member recalled to active duty

could be tried by court-martial);

Murray v aldeman

16 M.J. 74, 77 (C.M.A.

1983) (agreeing that the military appellate courts should not be bashful about

reviewingjurisdictional challenges via writ); Morgan v Mahoney 50 M.J . 633,

634

(A.F.C.C.A. 1999) ( While this issue may not arise

in

many

fu

ture cases, it is

one of first impression a

nd

involves the milita

ry

s right to

try

the petitioner. ). And

as explained on pages 22-24 below, pre-trial review ofthis kind ofclaim is a

traditional function ofhabeas corpus, particularly when the military is seeking to

impose the death penalty. Reid 354 U.S. at 77 (Harlan, J., concurring); Grisham v

Hagan 361 U.S. 278, 280

1

960).

~

The government attempts

to

minimize the relevance of the death

penalty in the calculus of rreparable harm on the strength ofHennis v Hemlick

666 F.3d 270 (4th Cir. 2012). Resp. 61. It to mention, however, that the

defendant ih Hennis had been given the opportunity to appeal the jurisdiction ofhis

co

urt-martial pre-trial pursuant to a writ in the Arm y Court ofCriminal Appeals.

Id.

at 27 l. That court, in turn, enjoined his court-martial proceedings while

it

resolved the merits ofhis challenge. And though

it

ultimately rejected hi.s

interlocutory challenge on the merits, it kept its stay in place until the military's

highest

cowt

decided whether to grant his petition for review. Id. at 272.

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The government also fails to rebut Al-Nashiri's particularized

showing of the irreparable harms he will suffer ifput through the motions

of

a

gratuitous capital trial in Guantanamo. This Court has uncontroverted findings that

Al-Nashiri suffers from Posttraumatic Stress Disorder and Major Depressive

Disorder. 706 Report at 33. It also has sworn expert testimony that a capital trial in

Guantanamo under the military commissions' unpredictable procedures will be

stressful on a different order ofmagnitude [than an ordinary capital trial] and,

given

Mr

. Al-Nashiri's situation and fragile psychological state induced by torture,

exponentially more harmful.'' Crosby Deel. if26.

~ w u ~ h e likelihood and severity

of

hese

irreparable harms should not

be

surprising. he government disappeared this man

into black sites, shaved the hair from every inch

ofhis body, folded him into a

small box, drowned him, threatened to bore into his skull with a power drill, and

regularly stowed him in a coffin. Despite clear signs ofmental disability and his

immediate cooperation, it put him through a systematic campaign

of

physical,

mental, and sexual torture. Its express purpose was to induce a state of learned

helplessness, in the belief that it could break him like a dog in a laboratory

experimen.t. SSCI Report at 64 n. 317. It even went so far as to keep him

kenneled,

Id

at 50, n.240, and chained to the wall and ceiling. 706 Report at 16 .

9




28/46


- -

Hf- +Nir+-t

The

government

must

accept the

consequences

of

achieving its objective.

d He is incapable of

forming

trusting relationships with others, including doctors

and

lawyers. Crosby

D e e l ~

14.

He has lost the basic coping skills an ordinary defendant could rely

upon to meaningfully cooperate in his defense. Id ,24.

And

the trial's very

location in Guantanamo presents persistent

visual

and audible triggers

for

traumatic stress events. Id

ill

7. After spending

over

a decade trying to render

Al-

Nashiri psychologically

helpless,

the government cannot turn

around and

represent to this Court that

putting

him through a capital trial, conducted

in

one of

the

very

black

sites

into

which

it

had disappeared i m ~ presents nothing more

than

the

Hinevitable

incidents

of

any criminal trial.

Resp. 26.

(U//FOUO) Further exacerbating these harms is

the

lack

of

adequate mental

health care

in

Guantanamo. 706 Report, at 26;

Crosby

Deel. i]ifl6, 25.

AL

-Nashiri

has no

access to the mental heal th resources that

would

ordinarily be available to a

defendant in any capital trial. In fact as of

December

2015, the

Department

of

Defense

has

banned

psychologists

from

treating detainees

in

Guantanamo

in

response to new ethics rules from the American Psychological Association. James

20

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l l l C L A S S ~

Risen,

Pentagon Curbs Use

o

Psychologists with Guantanamo Detainees

New

,.

York Times,

atA14

(Dec. 31, 2015). Contrary to the government's suggestion that

the "psychological stressors" in Guantanamo are the same

as

they

would

be

in

the

Southern District ofNew York, Resp. 26, no comparable ban on me .ntal health

. .

. .

professionals has been instated ~ y the Bureau

ofPri

sons. Thus, quite unlike an

. ordinary

capi

ta

l

case, Al-Nashiri faces such t r i a ~ without

any

meaningful

access to p p r o p ~ i a ~ e health ~ e

.

~ T o

be clear, Al-Nashiri does not argue that he cannot be made to face a

capital tri.al. His only Claim is that, if he is correcton the merits, facing a mock

.

.

.

\

.

death

penalty r i ~ l

before an d hpc

milita_

y

commission in .Guantanamo

will cause

.

.

.

. .

. .

irreparable

harm that simply

obtaining reversal on appeal will

not

remedy. All he

.

. .

asks is .that this Court nt biind itsel ftothe.actual hain)s he a c ~ s in thi s particular

- .

.

. . .

. .

. . .

dea

th

p e n ~ I

p r p s e c ~ t i o n

conducted

u

nder

these

rules.;

and

in

this piace.

. .

- .

.

. .

.

III.

THIS 'COURT SHOULD

REAFFIRM

,TfIAT

.HAB'EAS CORPUS .REMAINS . AN

ESSENTIAL

. . . .

..

t . .

SAFEGUARD AGAINST : THE UNLAWFUL

A S $ ~ ~ T I O N oF .M.JLlTARY JURJSJ>ICTION

.

.

(t:r)

The

gov

,effiment .concl a e ~

its brief Wit

h

two

a r ~ m ~ n t s

that a1m to

s.trip

, ' ,

,

f

.

, ,

..

Al-Nashiri

of

the-ability to

seek

rehte,4;ies through habeas-.corpus:

It

claims h ~ t 28

.

.

. .

.

.

.

.

.

.

...

.

u.S.c. 2241(e)(2) s t r i p p e d t ~ e d ~ s t r i ~ o u r t of _urisdiction over Al-Nashiri's :- .. .

claim

becausethallengesto the military's

assertion f

juris..C-..V,_,,J.J.

l

. :

.

.

.

--

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habeas.

Re

sp.

59

-60. And it claims

h t ~ eve

n

i

here

is

habeas

jur

isdiction, this

Court should neve

rth

ele

ss

extend the abstent ion do

ctr

ine articulated in

Schlesinger

v. Councilman 420 U.

S. 738 (1975), to disclaim

that

ju risdiction.

Neither

argument bas

any

l

ega

l support and both

ask

this Court to accomplish through

ju d

icial c-0nstruction, what the Supreme Court held to

be

unconstitutional in

Boumediene v Bush 553 U.S. 723 (2005).

A.

.-.,, Hab

eas

corpus is

the

fraditi

o

nal

vehicle

for

challenging

military

jurisdiction, including the very challenge at

issue

here.

~ T h e

argument that Al-Nashiri's claim is barred because it does not

sound in habeas is contradicted by centuries of precedent.

At

British common

law, habeas was the principal

proced

ural vehicle for obtaining judicial review over

an

inferior trib

unal's

assertion

of

urisdiction. According to a leading historian,

[t]here

ca

n be

li t

tle

doubt

.

..

th

at

habeas

corp

us in i

ts

cu

m cause

form

wa

s

being

used for [testing the jurisdiction

of

the tribuna l] independently of

priv

ilege or

certiorari by the mid-fifteen

th

century.'' R.J. Sharpe, The L wofHabeas Cor

pus

5

( 1990).

Coke emphasized the Kings Bench's use of he writ to oversee inferior

courts and keep

them

within their proper juri

sdict

ion . Coke, 4 Inst. 1170. In fact,

the writ

was

so indispensable for

check

ing the jurisdiction

of

exe

cu

tive tribunals

that Parliament g

uaran

teed

it

for

th

at purpose in the Act for the Abolition of the

Court of Star

Chamber.

17

Car. I c. I0 6.

22

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the United States, Chief Justice Burger concluded that inquiring into

whether

a committing court had proper jurisdiction is at the center of habeas'

constitutional core. Swain

v

Pressley 430 U.S. 372, 3 85 (1977) (Burger, C.J.,

concurring).

In

The Federalist Hamilton celebrated habeas as the traditional

means of securing against arbitrary methods ofprosecuting pretended offenses

.

The Federalist

No. 83 (Alexander

Hamilt

on).

And in

the Nineteenth century, the

writ's

predominate usage was

for

raising pre-trial challenges to jurisdiction. Dallin

H. Oaks,

ab

eas Corpus in the States 1776-1865 32 U. Chi. L

Rev

. 243, 258

(1965)

( [M]ost

petitions involving criminal

comm

itments

pr

ece

ded

conviction.

In

fact, many were submitted immediately upon the defendant's being arrested and

before he was even brought before a jud icial officer for formal commitment.).

(

'

The writ

has

played an especially impo

rtant

role

in

ensuring the legality

of

military jurisdiction.

In re Yamashita

32

7 U.S.

l

9 (1946) ( [T]he Executive

bran

ch

of the g

overnment could

not, unless

th

ere

was

suspension of the

writ

,

withdraw

from

the courts the duty and power

to

make such inquiry into the

authority of the commission

as may ~

made

by habeas corpus.

1

, ;

Johnson v

Eisentrager 339 U.S . 763, 775 (1950) (even during declared wars, an individual

can

challenge

the

existence

of

a state

of

war

and whether he

is

an alien enemy. ).

This was true in the United Kingdom at the time of the Founding. See The Case o

Wolfe Tone [1798]

27

St. Tr. 614. I t was

tru

e during the Civil War. Ex parte

23

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UNC

L/t88FH3D

Milligan, 4 Wall. 2, 123-24 (1866). It was true at the peak ofWorld War II. Qui

n

\

3 L U.S. at 25. And it was true a decade ago

when

the Supreme Court enjoined

military com

mis

sion proceedings

in

Guantanamo

in

the face

ofa

abeas-stripping

statute. Hamdan,

548

U.S. at 57284.

B.

(?

o u n c i l m n abstention

i o ~ p p l i c a b l e

Ho) The government's effort

to

achieve

th

e sa

me

jurisdiction stripping via

.

.---

Councilman abstention is equally unsupportable. Councilman abstention W


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here, by contrast,

was not

convened on the battlefield, the accu

sed

was

not

captured

on

the battlefield, and the precise claim at issue is that the conduct the

military commission is seeking

to

try did not occur on a battlefield.

-8:1

Moreover, even

if

Councilman or some analogous doctrine applied to

military commissions generalJy, abstention doctrines have no re levance in cases

such as this one, where the petitioner raise[s] substantial arguments denying the

right of the military

to

try them at all. New v. Cohen 129 F.3d 639, 644 (D.C. Cir.

1997). Al-Nashi

ri's

single claim is the military has no authority to

try

offenses,

whose relevant times, persons, places, and events were not governed

by

law of

war. That claim is so substantial that two of the signers

of

the Generals &

Admirals Amicus supporting his argument were the Navy's Judge Advocates

General from 1997 to 2002.

~

Al-Nashiri's

claim

only asks whether an inferior tribunal can apply its

governing law in the first p lace. When, as in this case, it is plain

that the

law

of

war does not apply, it will be equally evident that [military commissions] lack

adjudicatory authority over disputes arising from such conduct. .. . Therefore,

when [military commission] jurisdiction over an action such

as

this one is

challenged in federal court,

the

otheiwise applicable exhaustion requirement

...

must give way, for

it

would serve no purpose other than delay. Strate v A I

Contractors

520

U.S. 438, 459 n.14 (1997).

25

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C. The military commissions in Guantanamo neither need, nor

warrant,

che creation of

their

own abstention doctrine.

~ The government has given this Coun no good reason to fashion a

doctrine of absolute abstention for military commissions th

at

outweighs ''the delay

and expense to which application of he abstention doctrine inev itably gives rise.

Kusper v Pontikes

414 U.S. 51, 54 (1973) (internal quotations omitted). Unlike

the court-martial system, the military commissions

in

Guantanamo arc not

separate and apart from

...

our federal

judic

ial establishment. Councilman 420

U.S. at 756 (quotations omitted). Like the Tax Court, the 2009 Act created a

system

of

pennanent trial chambers that operate under this Court's direct appelJate

jurisdict ion and in parallel to the District Courts. Just as

Younger

abstention

reflects comity toward the interests

of

federa lism,

Councilman

only makes sense

insofar is it protects the military's need to govern itself as a a specialized society

separate from civilian society.

d.

at 757. No comity interest

is

served by applying

such a doctrine here. To the contrary, the federal courts have a duty to check

against the significant

da

nger posed by these tribunals'

te

ndency to encroach upon

the j udicial power

over

capital trial

s. eid

354 U.S. at 39-40.

( '*'

There

is

also no reason to believe that the military commission system

g

enerally is adeq

ua

te lo and responsibly will perform its assigned task. Resp. 46

(quoting

Councilman

420 U.S.

at

758). When the Supreme Coun drew that

26

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conclusion about the court-martial syst

em,

it had track-record

of

regular

per

fo

rmance that spanned twen ty-five years a

nd th

ousands

of

cases. The military

commissions

in

Guantanamo have no such track reco

rd

and

by

every relevant

measure, still bear insufficient conceptual similar

ity

to state courts to warrant

i

nv

ocation of abstention pr inciples.

Hamdan

548 U.S. at 587-88.

m

il

itary co

mm

issions

hav

e yet

to

result

in

a single

convi

ction that

h

as

survived appellate review.

Bahlul

v.

United States

767 F

.3d

I, 2

7-31

(O.C.

Ci

r.

2014)

(en bane decision unanimously vacating defendan

t's

convict

io

n

of two

charges on pla

in

error review);

Hamdan v. Unite States

696 F.3 d I238 (D.C. Cir.

20

12) (unanimously vacating the conviction

th

at had

su

rvived every challenge

within the military co

mm iss

ion system. And their rules,

co

mposit

io

n, and

structure remain in such

co

nstant flux that

th

e mi litary judge pres

idi ng

over the

September 11th case remarked that it was

a

system in wh ich uncertainty is the

nonn and where the

rul

es appear random and indiscriminate.

United States v.

Mohammed. et al.

AE144, at 3 (Jul.

13

,

2009 .

h i s

legal uncertainty

is

exacerbated by the lack of a

ny

speedy trial

requ

irements,

whi

ch might otherwise ensure p

ro

mpt judicial review. Al-Nashiri

has been

in

custo

dy

for fo urteen years. This case

has

been pending since 2008,

not

the least because the Convening Authority is free to convene, disb and, and

re

co

nv

ene com

mi

ssions together at will. Supp.Pe

t.

14

. Based on the most

27

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T h I Q

t

czr rrn

.._ .1 "'-'"'-'" 1 U U L J A LJl J

optimistic estimates, Al-Nashiri

s

trial

will

not begin until

2018

Vvnate

ver

relevance the bare

pro

spect of post-trial review

has

in

deciding whether the

necessary conditions

for

abstention exist, the prospect of that review cannot

be

sufficient where, as here, the timing of [post-trial review]

is

left entirely

to [the

Convening Authority's] discretion(.)" Hamdan 548 U.S. at 616. Given the pace of

prior cases,

failing

to act today will ensure that judicial review of the single

question of

law

presented here

will

remain unresolved

for

a decade.

No one - not the accused, not the government, not the public, not the

survivors of those who served on the USS COLE, not tho

se

who care about the

reputation

of he

American judicial system - benefi.ts from a generation

of

uncertainty on a question as fundamental as when America is at war. "Although

there may be circumstances where a district court could, merely for reasons of

'economy of time and effort' , ... stay a detainee's habeas petition in anticipation of

an

imminent military corrunission proceeding, continuing to do so after the passage

of

time involved here

and

with no end in sight is insupportable in view

of

the

Supreme Court's instruction

that

'the costs of delay can no longer be

borne

by

those who are held in custody{.]"'

Obaydullah 609

F.3d at 449 (quoting,

inter

alia Boumediene

553 U.S. at 794-95).

8

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UNCLASSIFIED

FOR PUB

C RELEASE

UUC

L

SSJFI

ED

O N L U S

I O N

(

o

)

The use ofmilitary commissions has mutated from individual

proceedings convened on or near the banle:field to a permanent court system in

which the bulk of the prosecution's ev ide

nce

will be hearsay, where secrecy is the

nonn, where the public,s access is limited, where there is no speedy trial, and

where even an acquittal may not result in re]ease. Nothing in the Constitution

contemplates such trial chambers and

this Co

urt shou

Jd

not immunize them from

the modest pretrial review

sou

ght here.

This Court should enjoin the military commission convened by Convening

Order # -02, either via habeas or mandamus, because it is exceeding the limits

that Congress has duly enacted on what is tr iable by such a tribunal.

Respectfully submitted,

Isl

Michel Par

ad

is

Michel Paradis

U.S. Department

of

Defense

Military Commission Defense Organization

1620 Defen

se

Pentagon

Washington, DC 20301

1. 703.696.9490

x

5

[email protected]

Richard Kam.men

Kamrnen Moudy

135 N. Permsylvania St., Suite 1175

Indianapolis,

IN

46204

Counsel or Petitioner Appeilant

29

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38/46


~ i C L 1 S S W J E D

~ C E R T I F I C A T E OF SERVICE

hereby certify that on January 15, 2016, copies of the foregoing were

delivered to the Court Security Officer for filing in this Court and service on all

necessary parties pursuant to the

Amend

ed Protective Order for

Habeas

Cases

Involving Top Secret/Sensitive Compartmented Information d Procedures for

Counsel Access to Detainees

at

the

Un

it

ed

States Naval Station n Guantanamo

Ba

y,

Cuba, in Habeas

Cases

Involving Top Secret/Sensitive Compartmented

Information,

Case

Nos. 08-

MC-442-TFH

Dkt. Nos. 14

81

and 1496) 08

-cv

-

01207-

RJR D

kt Nos. 79 80) D.D.C. 9 January 2

009)

.

By: /s/

Mic

he l

Par

adis

Michel Paradis

U.S. Department ofDefense

Military Commission Defense Organization

1620

Defense

Pe

ntagon

Washington, DC 2030 l

1.703.696.9490x

l 15

[email protected]

30




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UNCL SSIFIED//FOR PUBLIC RELE SE

UNCLASSIFIED .

CERTIFIC TE

OF

COMPLI NCE

WITH

RULE

32(A)

Certificate

of

Compliance with Type-Volume Limitation,

Typeface

R e q u i r e m ~ n t s

and

Type Style

Requirements

l This brief complies with the type-volume limitations imposed

by

Fed. R

App. P 32(a)(7)(B) as augmented by P e t i ~ i o n e r s motion to this Court on August

1

2013,

because:

[K]this briefcontains 6,995 words, excluding the parts of he brief exempted

by Fed. R App. P 32(a)(7)(B)(

ii

i), r

t i is briefuses a monospaced t y p ~ f a c e and contains _ _ lines

of

ext,

excluding the parts

of

the

brief

exempted by Fed.

R

App.

P

32(a)(7)(B)(iii).

2. This brief

complies

with

the typeface requirements of Fed.

R.

App. P

32(a)(5)

and

the type style requirements of

Fed.

R App. P 32(a)(6) because:

ffihis briefhas been prepared

in

a proportionally spaced typeface using

Microsoft Word 2010 in 14 point font size and Times New Roman type style; or

t i i s briefhas been prepared in a monospaced typeface using _ _ _

with

Dated: January 15, 2016

Respectfully submitted,

sl Michel

Paradis

Counsel for Petitioner

31

Ul f0IsASSffU3B




40/46


UNCfslzggffigs

~ S T A T U T O R Y REGULATORY ADDENDUM

U.S.C. 2108(1) ...................................................................................... ............ a-2

10 U.S .C. 948a(9) ................................................................................................ a-2

10 U.S .C . 948d(a) (2006) .................................................................................... a-2

10 U.S.C. 950p(

a)

.................. .. .................................... .. ..................................... a-3

I 0 U.S.C.

950p(c) .................................. ...................... .... .................................... a-3

10 U.S.C. 950t l ) ..................... ....................... .................. ............... .. ...... ............ a-3

10 U.S.C.

950t(15) ....................................................

...

...... ....... ..........................

a-3

10

U.S.C. 950t(31)

.

..

..

.......................................... .......................... ..................... a-4

10

U.S.C.

950t(32) .............................................................................. : .............. a-4

10 U.S.C. 16163(a) ......................... ............................ ........ ............. .................... a-4

20

U.S.C.

1138()(2) ................ ........................... .....

..

...... .................................

...

a-4

28 U.S.C.

224l e)

............................................................................................... a-5

38 U.S.C. 5302A .................... .... ............................... ..

.

... .................................... a-5

50 U.S.C.

1544 ............ .. .......................... ... .......................... ................... .. .......... a-6

a 1

C L A S S J F E g D




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5

u.s.c. 2l08 1)

veteran'' means an individual who--

(A) served

on

active duty in the

anned

forces duri

ng

a

war, in a campaign

or

expedition for which a campaign badge has been authorized, or during the

period beginning April

28, 1952,

and ending July 1,

1955;

8)

served on active duty as defined by section

101

(21) of title

38

at any

time in the anned forces for a period of more than

180

consecutive days any

part

of which occurred after January 3 1, 1955, and before October 15

, L 76,

not including service under section

12103(d)

of title

I0

pursuant to an

enlistment

in

the Army National Guard or the Air National Guard or as a

Reserve for service in the Anny Reserve,

Navy

Reserve,

Air

Force Reserve,

Marine Corps

Reserve, or Coast

Guard

Reserve;

(C)

served

on

active duty as defined

by

section

101(21)

of

title

38

n

the

anned

forces dur ing the period beginning on August 2, 1990, and ending

on January 2, 1992; or

(D) served on active duty as defined by section l 01 (2 1) of title 38 at any

time in the armed forces for a period

of

more than 180 consecutive days any

part of which occurred during the period beginni

ng

on September 11,

200

l,

and ending on the date prescribed by Presidential proclamation or by law as

the last date ofOperation Iraqi Freedom;

and, except as provided under seetion 2108a, who has been discharged or

re leased from active duty in the armed forces under

ho

norable conditions;

10

U.S.C. 948a(9)

Hostilitics.-The tenn

hosti lities means any conflict subject

to

the laws

of

war.

I 0 U.S.C. 948d(a) (2006)

Jurisdiction

. A military commission under

this

chapter shall have jurisdic tion

to try any offense made punishable y this chapter or the law of war when

committed by an alien unlawful enemy combatant before, on,

or

after

September 11, 200 I.

a-2

UNCL 1Bf5EF8SD




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10 U.S.C.

950p(a)

Definitions.-In

this subchapter:

l)

The

te

rm

"military obj

ec

tive" means combatants and those objects

during hostilities which, by their nature, location, purpose, or use, effectively

contribute to the war-fighting or war-sustaining capability of an opposing

force and

whose

total or partial destruction, capture, or neutralization would

constitute a definite military advantage to the attacker under the

circumstances at the time of an attack.

(2) The term ~ p r o t e c t e d person" means any person entitled to protection

under one or more

of

he Geneva Conventions, including civilians not taking

an active part

in

hostilities, military personnel placed out

of

combat

by

sickness, wounds, or detention, and military medical or religious personnel.

(3)

The

term "protected property"

mea

ns any property specifically protected

by

the

law

of war, including buildings dedicated to rel igion, education, art,

science, or charitable purposes, historic

mo

numents, hospitals, and places

where the

sick and

wounded are collected, but

only

if

and

to the extent such

property is not being

used

for military purposes or is not otherwise a military

objective. The term includes objects properly identified by one of the

distinctive emblems of he Geneva Conventions, but does not include

civilian property that is a military objective.

10 U.S.C. 950p(c)

An offense

spec

ified in this subchapter is triable by military commission under

this chapter only

if

he offense is commined in the context of

and

associate

d

with hostilities.

10 u.s.c. 950t l)

Murder of protected persons.-Any

person subject to this chapter

who

intentionally kills one or more protected persons shall be punished by death or

such other punishment as a military commission under this chapter may direct.

10 u.s.c.

950t l5)

Murder in violation

of

thelaw ofwar.-Any person subject

to

this chapter

who intentionally kills one or more persons, including privileged belligerents,

in violation of

he

law of war shall be punished by death or such other

punishment as

a

military

commission under this chapter

may

direct.

a-3

Ul

JCb.b: S

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950t(31)

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