Two More Jurisdictional Challenges Rejected in Al-Nashiri

Judge James Pohl has denied two motions to dismiss for lack of personal jurisdiction in United States v. Al-Nashiri.  Though handed down on June 19, Pohl's two orders became available only more recently, after they each completed the Defense Department's obligatory security review.    In his first motion, the accused had claimed that the Military Commissions Act of 2009 ("MCA 2009") violated equal protection principles embodied in the Fifth Amendment's due process clause.  His specific claim was that the MCA 2009 discriminated unlawfully against "alien unprivileged enemy belligerents" - the category of persons subject to trial by military commission under the statute.  In a second and related motion, Al-Nashiri had argued that, by limiting the commission's personal jurisdiction to certain aliens only, Congress had exceeded its authority under Article I, Section 8's "define and punish" clause.    Like his prior decisions in the case, both of  Judge Pohl's newly-released orders are short and to the point.  Both span two pages apiece.  And in both, the commission says that the Court of Military Commission Review ("CMCR"), in the Hamdan and Bahlul cases, already heard and decided the very issues Al Nashiri had raised before Pohl.  That's superseding authority, on which Pohl relies in denying both of the accused's motions.   You can find the commission's equal protection and define and punish rulings here and here, respectively.