CTA9 Decides Al-Nashiri v. MacDonald

Abd Al Rahim Hussein Al-Nashiri is a noncitizen “enemy combatant” undergoing proceedings before a military commission at the United States Naval Base in Guantanamo Bay, Cuba. The charges against Al-Nashiri arose from his alleged role in three terrorist plots: the 2000 attempted bombing of the U.S.S. The Sullivans; the 2000 bombing of the U.S.S. Cole, which killed seventeen U.S. military personnel; and the 2002 bombing of the M/V Limburg, which killed one civilian. Al-Nashiri seeks a declaratory judgment that the military commission lacks jurisdiction to hear the charges against him because the alleged acts occurred in Yemen, where he argues no war or hostilities existed in 2000 or 2002. More specifically, he claims that Vice Admiral Bruce MacDonald (Ret.), then the Convening Authority for the Office of Military Commissions, over-stepped his authority because “[t]he President and Congress uniformly declined to confer [war-time] status on events in Yemen” during that period. Consistent with our recent decision in Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013), we hold that Section 7 of the Military Commissions Act (“MCA § 7”) of 2006 deprived the district court of subject matter jurisdiction over Al-Nashiri’s claims. 28 U.S.C. § 2241(e).