Appellee Brief in Al-Nashiri v. MacDonald

Vice Admiral (Retired) Bruce MacDonald, the Convening Authority for the military commissions at Guantanamo Bay, has filed his appellate brief in Al-Nashiri v. MacDonald.  That's the civilian court lawsuit brought by commission defendant Abd Al Rahim Hussein Al-Nashiri, and now pending before the United States Court of Appeals for the Ninth Circuit.  (The district court dismissed the case on statutory, sovereign immunity, and abstention grounds.) On the merits, Al-Nashiri argues that his alleged conduct did not did not occur in the context of and associated with a conflict controlled by the laws of war---the same position advanced by his lawyers before Judge Pohl during last October's hearing at Guantanamo.   By approving the commission case, the theory goes, MacDonald exceeded his powers and violated Al-Nashiri's rights. Here's a taste of MacDonald's response brief:

Plaintiff filed this action in district court to challenge the Convening Authority’s decision to convene a military commission in his case. The district court properly dismissed plaintiff’s action on three independent grounds. First, the district court correctly held that plaintiff’s claims are barred by 28 U.S.C. § 2241(e)(2), which bars jurisdiction over any non-habeas action “against the United States or its agents relating to any aspect of the . . . trial . . . of an alien who is . . . detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant.” The statute’s plain language bars plaintiff’s claims, and the district court correctly concluded that § 2241(e)(2) is still good law after Boumediene v. Bush, 553 U.S. 723 (2008). Plaintiff’s argument that § 2241(e)(2) violates the equal protection component of the Due Process Clause has been waived and, in any event, is meritless because there was a rational basis for limiting § 2241(e)(2)’s reach to aliens detained as enemy combatants. Subsection 2241(e)(2) is also not an unconstitutional bill of attainder. The withdrawal of jurisdiction does not fall within the historical meaning of legislative punishment, and the purpose and intent underlying the statutory provision are nonpunitive. Second, the district court correctly concluded that plaintiff’s action is independently precluded by the administrative- and judicial-review provisions of the Military Commissions Act. Those provisions establish that upon exhaustion of a detailed set of procedures providing for initial review of military commission judgments by the Convening Authority and the U.S. Court of Military Commission Review, judicial review is available in the D.C. Circuit, which has “exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission.” 10 U.S.C. § 950g(a). This comprehensive mechanism for administrative and judicial consideration of military commission issues clearly shows that Congress did not intend to permit judicial review beyond the review provided for by statute in the D.C. Circuit. Plaintiff’s argument that his suit may proceed as an officer suit under Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), is without merit. Suits under Larson are not available where, as here, Congress has implicitly precluded that remedy by enacting a comprehensive and detailed alternative remedial scheme. Third, the district court properly determined that it should abstain from exercising equitable jurisdiction under the principles established in Schlesinger v. Councilman, 420 U.S. 738 (1975). The primary comity consideration that makes abstention appropriate in the court martial context applies here because due respect is warranted for Congress’s judgment that the integrated system it created in the Military Commissions Act for review of military commission decisions—including review as of right in the D.C. Circuit—is generally adequate to address claims like plaintiff’s. In addition, the exception to Councilman abstention for personal-jurisdiction challenges does not apply here because plaintiff’s challenge concerns only the offenses with which he was charged. Because plaintiff does not allege any injury beyond that attendant to his military commission trial, the district court properly determined that Councilman abstention was warranted.