Al-Nashiri II: Comity, Legitimacy, and the Military Commissions

Unless you're someone who keeps a copy of Hart & Wechsler on your desk, you probably don't care that much about Tuesday's divided ruling by the D.C. Circuit in In re Al-Nashiri (which, for ease of reference, we should call "Al-Nashiri II," to distinguish it from the D.C. Circuit's February ruling on different matters in "Al-Nashiri I"). After all, the Al-Nashiri II court's principal holding—that it will not decide Al-Nashiri's pre-trial challenge to whether he can be tried by a Guantánamo military commission for an offense committed well before the 9/11 attacks (to wit, the bombing of the USS Cole)—turns on a hypertechnical doctrine known as "Councilman abstention," which deals only with the hypertechnical role of civilian courts in entertaining pre-trial collateral attacks on military prosecutions. You probably don't care if the court of appeals correctly applied Councilman (spoiler alert: it didn't); and you're probably not losing sleep over the result—leaving Al-Nashiri's jurisdictional challenge to be handled by the trial court in the first instance, and, if he's convicted, to be considered as part of a post-conviction appeal. You may not even care about the merits of Al-Nashiri's claim (whether, at the time of the Cole bombing in October 2000, the United States was already involved in an "armed conflict" under the laws of war with al Qaeda, which is what the MCA itself requires in order for the commissions to have jurisdiction).

But you should care. Abstention doctrine is premised on "comity"—the idea that federal civilian courts owe respect to the trial processes of their sister tribunals, and should only interfere with those processes where the complaining party has identified some kind of fundamental defect in the trial proceeding that isn't likely to be handled expeditiously within that system (and therefore creates additional prejudice to the complaining party). Although the Court of Appeals doesn't come out and say it, the basic upshot of its analysis in Al-Nashiri II is that the military commissions are entitled to the same comity-driven consideration—and, as such, to the respect due to coordinate tribunals within our judicial system.

In my view, doctrinal shortcomings aside, there are two more normative problems with this take-away from Tuesday's ruling:

First, can anyone actually argue with a straight face that the track record of the commissions to date justifies the deference and respect at the heart of the D.C. Circuit's decision to abstain? So far, it's taken the commissions 15 years to hand down eight convictions, a majority of which have since been called into serious question because of fundamental jurisdictional defects completely brushed over by the trial courts and Court of Military Commission Review (and then reversed by the D.C. Circuit even under highly deferential "plain error" review). Insofar as abstention by civilian courts in this context is justified by some kind of respect for the quality of substantive decisionmaking within the military justice system, is there really an argument that the Guantánamo military commissions have done anything to earn that respect?

Second, abstention by civilian courts is also predicated on the notion that the petitioner will have a meaningful opportunity to vindicate his claim within the military justice system in the reasonably foreseeable future. As the D.C. Circuit explained in 2010 (in another military commission abstention case, which the Al-Nashiri II panel does not even bother to cite), "abstention is surely not appropriate where . . . a trial before a military commission is only a possibility and only at some unspecified time in the future." Yes, Al-Nashiri is in pre-trial proceedings, but those proceedings have already been going on for years, have been stalled for much of the past two years because of problems with the composition of the Court of Military Commission Review wholly unrelated to the merits of Al-Nashiri's jurisdictional objections, and show no signs of meaningfully leading toward a trial (to say nothing of a post-conviction appeal) anytime soon. Is abstention really appropriate when it might be the better part of a decade before the defendant is once again able to raise the basic legal question at issue before an Article III court—and when, all the while, the defendant, who is facing a potential death sentence, is in limbo as to whether the court trying him even has the power to do so?

At the end of the day, this is the aspect of Al-Nashiri II that I find the most baffling. Whatever the answer to the merits of Al-Nashiri's jurisdictional challenge actually is, isn't it better for the government, and not just the defendant, to have that question (whether the commissions can try pre-9/11 offenses such as the Cole bombing) resolved now? After all, if the government is right on the merits (that the commissions can try certain pre-9/11 offenses, such as the Cole bombing), then a ruling to that effect now would help to create ex ante legitimacy for everything that follows, and the case against Al-Nashiri can be tried against a backdrop of certainty over the military commission's jurisdiction. (To say nothing of the broader precedent it would set on the question of when the conflict with al Qaeda "began.") Indeed, for all of the criticisms of the commissions, it would be quite an arrow in the governnent's quiver if the D.C. Circuit were to hold that its jurisdictional theory vis-a-vis Al-Nashiri is consistent with both the Military Commissions Act and the Constitution.

And if the government is wrong on the merits, and the commissions lack jurisdiction to try Al-Nashiri for the Cole bombing, what the hell is the point of spending millions of dollars and tens of thousands of man-hours on a capital trial and potential death sentence that will have to be vacated on appeal?

In sum, then, abstention in Al-Nashiri II doesn't make any sense doctrinally; depends more fundamentally upon a view of the commissions' track record that I just don't recognize; and does no favors whatsoever to the government, which will now (or, at least, some day) have to try Al-Nashiri under a lingering cloud of jurisdictional uncertainty (and, thus, illegitimacy)—and with the specter of a potential appellate reversal for lack of jurisdiction looming over the entire proceeding. For folks who'd like some resolution of the commissions' legitimacy one way or the other, this is simply the wrong result. One wonders if a similar non-result is in the offing in al Bahlul, in which the ruling of the en banc D.C. Circuit on whether the commissions can try offenses other than international war crimes is due any day now.