The D.C. Circuit, Military Commissions, and Pre-9/11 Offenses

What was already shaping up to be a busy (and important) few months for the D.C. Circuit vis-a-vis the Guantánamo military commissions just got a little busier. On Tuesday, a three-judge panel issued an order consolidating two separate appeals by Abd al-Rahim al-Nashiri (the defendant charged with, among other things, responsibility for the 2000 bombing of the USS Cole), and directing the parties to propose a briefing schedule. And although this development may seem like a purely procedural one, it will have the effect of bringing to the D.C. Circuit--sooner, rather than later--yet another immensely significant question concerning the jurisdiction of the military commissions: Can they lawfully prosecute offenses that took place before the 9/11 attacks (and, arguably, before the war "began")? In the post that follows, I briefly explain the background to these appeals (including how this litigation differs from the appeals that led to the D.C. Circuit's June 23 decision in al-Nashiri I--which I wrote about here), and why this latest case is so potentially momentous. (Hint: It's not because of the merits.)

I. Background

As readers likely remember, Nashiri was charged before the military commissions for his role in several different terrorist attacks, including the Cole bombing and the 2002 attack against the M/V Limburg. Nashiri has raised distinct challenges to the commission's authority over both of these episodes, arguing that the Cole bombing took place at a time when there was no armed conflict between the United States and al Qaeda, and that the attack on the M/V Limburg--a French-flag ship in the Gulf of Aden--cannot reasonably be connected to the (by then clearly established) non-international armed conflict between the United States and al Qaeda. Before the military commission, the trial judge rejected the former argument but accepted the latter--and dismissed the Limburg charges. The government then took an interlocutory appeal of the latter ruling to the Court of Military Commission Review (CMCR), at which point all hell broke loose over whether the means by which military judges are appointed thereto raises Appointments Clause problems. That appeal is what led to the D.C. Circuit's June 23 decision, which held that (1) the Court of Appeals does have mandamus jurisdiction over the CMCR (and, through it, the military commissions); but (2) Nashiri had not surmounted the high bar for mandamus relief because (a) he likely has other remedies; and (b) his claims on the merits, though significant, raise questions of first impression--and are thus beyond the appropriate scope of mandamus. (And, just to close the loop, the government's appeal to the CMCR, to say nothing of the trial proceedings themselves, remains on hold while the Executive Branch pursues a "fix" to the Appointments Clause problem.)

All the while, litigation was also proceeding on the trial judge's rejection of Nashiri's first argument--that the commissions lack jurisdiction over actions that took place outside of the armed conflict between the United States and al Qaeda under both the Military Commissions Act itself and the Constitution. Nashiri brought three separate actions seeking to advance this claim: (1) an action for declaratory judgment against the convening authority in federal district court in Seattle; (2) a habeas petition in D.C. federal district court; and (3) a petition for a writ of mandamus in the D.C. Circuit directed to the military commission. The first action was dismissed on jurisdictional grounds (since it wasn't brought as a habeas petition), a result the Ninth Circuit affirmed in December 2013. The second action produced a December 2014 decision by D.C. District Judge Richard Roberts, who held that he was bound by Schlesinger v. Councilman to abstain from reaching the merits of Nashiri's claims until after the military commission trial (and direct appeal) had run its course. Nashiri then appealed that ruling to the D.C. Circuit, an appeal that Tuesday's order consolidated with the third action--his still-pending petition for a writ of mandamus directly against the trial court.

To make a long story short, then, the D.C. Circuit's Tuesday order means that the question of whether the commissions indeed may exercise jurisdiction over pre-9/11 offenses is now before the D.C. Circuit.

II. Stakes

Much has already been written about the merits of Nashiri's claim--and whether the commissions may lawfully try offenses that pre-date 9/11 (a question that turns largely on the even thornier question of when the armed conflict against al Qaeda "began"). I won't rehash those arguments here, although I suspect there will be more to say once the D.C. Circuit briefs are in. But lest it seem like this issue is good for one train only (since Nashiri is the only detainee currently charged with any pre-9/11 offense), I thought I'd take a moment to explain why the D.C. Circuit's resolution of these appeals could nevertheless prove so significant.

To understand why, recall from above that Judge Roberts dismissed Nashiri's claim based on something called "Councilman abstention." Councilman is a 1975 Supreme Court decision that stands for the uncontroversial proposition that, all things being equal, civilian courts should usually await the final outcome of ongoing court-martial proceedings against service personnel before entertaining a habeas petition collaterally attacking those proceedings. Councilman identified two different justifications for such deference: (1) the existence of a sophisticated military court system established by Congress that could be trusted to "vindicate servicemen's constitutional rights"; and (2) the fact that military discipline is best served "if the military justice system acts without regular intereference from civilian courts." As I've explained in the past, "The animating premise behind Councilman is that, in most cases, military courts are in a relatively better position to provide experienced, efficient, and, where necessary, expedited review of the defendant’s claims—and that, by contrast, collateral review before generalist judges in the civilian courts is inefficient, time-consuming, and expensive."

Councilman doesn't apply, though, when a servicemember seeks to vindicate a "right not to be tried," since post-conviction review will be inadequate to vindicate that right. Needless to say, I don't think it's a stretch to conclude that an argument that the commission lacks subject-matter jurisdiction over the offenses (and the defendant) implicates that right. But even if one disagrees that Nashiri's claims implicate a right not to be tried, there are strong arguments that Councilman shouldn't apply to the military commissions at all, since they can hardly be said, based upon their track record, either to "provide experienced, efficient, and, where necessary, expedited review of the defendant’s claims" or to "vindicate [defendants'] constitutional rights." Thus, in Hamdan I, the Supreme Court easily concluded that a pre-trial challenge to the jurisdiction of the first round of military commissions could go forward notwithstanding Councilman.

To be sure, Congress's enactment of the MCA at least superficially bolsters the argument for applying Councilman, since now, unlike in Hamdan I, there is a "military court system established by Congress." That's a large part of why Judge Roberts decided in December to abstain. But although Judge Roberts was the third different district judge to abstain from deciding a post-MCA habeas challenge to the jurisdiction of the military commissions, the D.C. Circuit has never endorsed that approach--and has, in at least one case, expressed skepticism that such abstention is appropriate. And wholly apart from whether Councilman should apply on its face to the commissions, consider what it would mean to apply it here, as I wrote after Judge Roberts' ruling:

structurally, the commissions are not actually independent of the Article III courts; they're directly subservient thereto. Unlike state courts, where the only direct Article III oversight comes from the Supreme Court's discretionary certiorari jurisdiction, and courts-martial, where the Supreme Court's certiorari jurisdiction isn't even plenary, the Article III D.C. Circuit exercises direct supervisory jurisdiction over the commissions--as the mandamus proceedings in Nashiri tellingly illustrate. In other words, applying abstention in a case like Nashiri completely ignores the fact that it's the same court supervising both Nashiri's habeas claim and his trial. Is the D.C. Circuit really supposed to defer to itself?

All of this is a long way of saying that, although the merits of Nashiri's challenge to the military commissions' power to try pre-9/11 offenses is fascinating, the question of whether the D.C. Circuit can and should reach the merits of that challenge at this stage is the real show here--and is potentially far more significant insofar as its impact on future cases than whether or not the USS Cole bombing took place during the armed conflict between the United States and al Qaeda.