Nashiri Oral Arguments: Is Griffith the Swing Vote?

As Robert Loeb noted is his post yesterday, on Wednesday, the D.C. Circuit again heard oral argument in the case of Guantánamo detainee, Abd al-Rahim al-Nashiri. As readers know from that post, Nashiri is charged with pre-9/11 offenses, including the bombing of the USS Cole in 2000. Nashiri’s consolidated mandamus and habeas petitions argue that his pre-9/11 offenses are not triable by military commission.

Below is a deeper look at some of the issues Loeb has flagged. First, the appeal comes to the court from a D.C. district court order not on the merits, but abstaining from the merits on an application of Schlesinger v. Councilman. And the procedural issue of Councilman abstention is—at least for now—the bigger fish. Under Councilman, federal courts abstain from interlocutory review of ongoing courts martial proceedings in most contexts. If Councilman abstention were deemed appropriate for military commissions, it could significantly impair speedy review in the federal courts: it would prevent interlocutory review of a system in which Nashiri’s case has been pending since 2008 and will not reach trial until 2018 (a figure accepted by the government’s attorney, Joseph Palmer, in Wednesday’s argument). And appeal from final judgment may not reach the court until sometime around 2024. That is all to say that, from Nashiri’s perspective, what is at stake in the abstention question is eight years of potentially needless litigation at Guantánamo Bay—if, of course, he ultimately prevails on the merits.

After Wednesday’s argument, opponents of abstention should be cautiously optimistic. Josh Gerstein at Politico noted after the argument that “of the three D.C. Circuit judges who heard arguments on the issue Wednesday, [Judge Tatel] seemed inclined to rule that the district court judge should not have left the question to the military and [Judge Griffith] seemed to be seriously entertaining a similar ruling.” Below I report in more detail on some of the telling moments in the oral argument.

Judge Griffith, the All-Important Swing Vote

The arguably most critical moments of the day came in Judge Griffith’s questioning. Because Judges Tatel and Sentelle appeared fairly decided, Judge Griffith is the one to watch. And his intense probing of both the government’s reading of Hamdan v. Rumsfeld and its contention that military expertise is relevant to the merits question—and thus deserving of deference via abstention—both point to a possible ruling for Nashiri.

But first up, Michel Paradis, Nashiri’s counsel in the Department of Defense. Judge Griffith first pressed Paradis on whether the Judge’s reading of the Hamdan Justices’ ambivalence on when the war began was incorrect. Paradis argued that Hamdan must be read both in the context of the issue that was before the court—that is, pre-9/11 conspiracy and post-9/11 offenses—and in light of the congressional action that followed. Importantly, noted Paradis, the addition of the language limiting “offenses triable” by military commission in 10 U.S.C. § 950p(c) was added in 2009 “as part of a broader legislative effort to effectively codify a large amount of Justice Steven’s opinion from Hamdan,” as evidence by the congressional record. (Note that the relevant Part V of Justice Steven’s opinion in Hamdan—which could suggest that the military commissions have jurisdiction over only post-9/11 offenses—did not garner a majority, but was rather joined only by Justices Souter, Ginsburg, and Breyer.) But notice that Judge Griffith’s concern here isn’t abstention, but rather whether the answer to when hostilities began is sufficiently clear and indisputable to warrant mandamus relief. Not so in his questioning of the government’s attorney, Joseph Palmer.

Judge Griffith subtly adopted the defense’s framing, calling the merits question a very difficult “legal issue”: “Why wouldn’t a federal district court be better situated than a military commission to take this on? There’s no particular expertise that the military commission has in determining when hostilities began under the Constitution, is there?” Palmer responded that military expertise is relevant because answering the question requires examining the military nature of the crimes for which Nashiri is accused. He also argued that Congress clearly intended for the military commissions to answer that question in the first instance. This contention regarding Congress’s intent spurred a lengthier exchange in which Judges Griffith and Tatel pressed Palmer on where to locate an authority for the idea that Congress intended the military commission to answer this kind of question. Ultimately, Palmer argued that by making “nexus to hostilities” an element of all of the crimes, Congress gave the commissions authority to answer it in the first instance.

Judge Griffith touched on the merits in his questioning of Palmer, and though he seemed somewhat less skeptical of the government’s merits position, he worried about the limits of military commission jurisdiction, referencing Hamdan’s footnote 20 in particular. Judge Griffith asked Palmer, “Doesn’t Hamdan suggest . . . that there is an area that we will not allow military commissions to consider? Right? There’s this personal jurisdiction area.” Judge Griffith further noted that although the Hamdan Court used the phrase “personal jurisdiction,” it went on to describe a much broader idea of ultra vires jurisdiction. Palmer reiterated the government’s position that the Councilman jurisdiction exception may only be narrowly applied to personal jurisdiction.

Judge Tatel and the National Institute of Military Justice Amicus Brief

At one point in the argument, Judge Tatel laid out four concerns for how the military commissions at issue here do not raise the factors that warranted jurisdiction in Councilman. If the following sounds familiar, it is largely the argument in the National Institute of Military Justice’s amicus brief, co-authored by Steve Vladeck.

Judge Tatel: Let me just suggest to you what I see the differences as being, and you tell me what your reaction is, okay? The petitioner here is not a member of the armed forces, like he was in Councilman, right? So there’s no unique interest in military discipline at work. That’s number one. Number two, the military commissions are not a self-contained judicial system in which Congress excluded the federal courts. In fact, the system includes the federal courts. Us, right? The D.C. Circuit. Third…There’s four of these, by the way. [Laughter] Third, the system here isn’t applying a unique body of law like court martial law, right? Quote ‘without counterpart in civilian life’ – that’s a quote from Councilman. Quite to the contrary, federal courts exercise jurisdiction over similar or identical criminal behavior. And finally, unlike the courts martial system, this system isn’t permanent. It’s convened when needed and it ends when the war ends. So when I looked at all those, I say to myself, none of the four factors that drove abstention there, even though now we do have Congress acting, which I totally agree with you puts a thumb on the scale of abstention, even given that, these fundamental differences, this does not look like a system where Congress intentionally excluded the federal courts and created a separate, independent system for review. It just doesn’t feel like abstention. So what’s the answer to all that?

Palmer’s response focused on the military’s interest in responding to violations of the law of war:

Palmer: Taking up the first one of the military’s interest, it’s true that there isn’t the precise interest in discipline of service members but there is a military interest of equal or greater weight at issue in this case in the interest in deterring and punishing violations of the law of war is an important incident of war as the Supreme Court has recognized and I think that the interest in this case and the magnitude of the offenses that are alleged is at least as strong as the interest in the marijuana offense that was at issue in Councilman.

Tatel wasn’t particularly convinced:

Judge Tatel: There’s a huge overlap between conduct that violates the laws of war and conduct that violates U.S. criminal code and we have dozens and dozens of terrorism cases pending in the federal courts. So it’s not like a separate system. These cases are tried in the federal courts and before military commissions whereas in Councilman there was a distinct powerful interest to get these court martial cases decided in a separate system where Congress had carefully balanced all of these rights. And there was no counterpart in the federal courts. Nothing.

Judge Sentelle and Rebuttal

Judge Sentelle seemed much less inclined to overturn the district court’s ruling. But a particularly long exchange between Judge Sentelle and Paradis on rebuttal actually seemed to highlight some of Nashiri’s stronger arguments. In one exchange, Paradis reiterated the defense’s two-bites-at-the-apple argument:

Paradis: If Al-Nashiri is tried and prevails on this precise [‘hostilities’] argument [but not until] 2024, he can still be taken to the Southern District of New York on the indictment that’s been pending since 2003.

Judge Sentelle: Would there not at least be a double jeopardy argument to be made there?

Paradis: No, because this goes to whether the military commission is acting ultra vires, and if it’s acting ultra vires, there was no jurisdiction to begin with and he’s subject to retrial.

The exchange highlighted the gravity of the abstention question and one of the defense’s strongest arguments for the irreparable harm needed to sustain the preliminary injunction.

If the Panel Rejects Abstention, Then What?

A recurring question in argument was what the panel should do if it finds abstention inappropriate: Remand to the district court? Decide the merits itself? And if so, on mandamus or habeas? Paradis argued that the D.C. Circuit could either decide the merits itself or remand for the district court to decide in the first instance. Even Judge Sentelle, perhaps recognizing the leanings of his colleagues, posited the question to Palmer:

Judge Sentelle: What is our order going to be at the end of this if we decide Councilman doesn’t apply?

Palmer: It should say section 950g precludes a challenge to a military commission ruling by habeas and instead that that interlocutory challenge should be decided by this court on mandamus and then the court should deny the mandamus petition because the claims aren’t clear and indisputable.

Paradis argued that habeas has historically answered just these sorts of pre-trial jurisdictional challenges. Even if it seems probable that Nashiri will win on abstention, what isn’t clear is whether the court will remand or decide the merits itself, and whether those merits will be analyzed on mandamus or habeas.