2016 01 15 Al Nashiri Reply Brief
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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
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
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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)
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il
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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
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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
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'
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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
'
.
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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
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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
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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
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~ 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
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~ 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
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~
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
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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
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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
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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
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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
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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
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.
: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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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
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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
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..
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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
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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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N
O U O ~
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 .
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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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ut+Cb rSSIFfED
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
lR'
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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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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
Richard Kam.men
Kamrnen Moudy
135 N. Permsylvania St., Suite 1175
Indianapolis,
IN
46204
Counsel or Petitioner Appeilant
29
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~ 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
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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
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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
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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
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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
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JCb.b: S
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UN CLASSIFIED
FOR PUBLIC RELEASE
10 u s c
950t(31)
Cont