Al-Nashiri v. Obama , 76 F. Supp. 3d 218 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
ABD AL-RAHIM HUSSAIN )
MOHAMMED AL-NASHIRI, )
)
Petitioner, )
) Civil Action No. 08-1207 (RWR)
v. )
)
BARACK OBAMA, et al., )
)
Respondents. )
_____________________________ )
MEMORANDUM OPINION AND ORDER
Guantánamo detainee Abd Al Rahim Hussayn Muhammad Al Nashiri
submitted an amended petition1 seeking a writ of habeas corpus,
arguing that the respondents’ attempts to try him by military
commission would exceed the limits imposed by Congress and the
Constitution on the military’s authority to act in lieu of courts
of law because none of the crimes alleged against Al Nashiri
occurred in the context of a recognized war. Al Nashiri moves
for a preliminary injunction preventing the respondents from
trying him by military commission before the merits of his habeas
petition are decided. The respondents oppose Al Nashiri’s
motion, and move to hold his habeas petition in abeyance during
the duration of his military commission trial. Because
traditional principles of comity and judicial economy support
abstaining from exercising equitable jurisdiction over
1
Al-Nashiri’s motion [230] for leave to file an amended
petition seeking a writ of habeas corpus will be granted.
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Al Nashiri’s habeas petition during the pendency of his military
commission trial, the respondents’ motion to hold in abeyance
will be granted, and Al Nashiri’s motion for a preliminary
injunction will be denied.
BACKGROUND
Al Nashiri is a Saudi national who was seized in
October 2002 by local authorities in the United Arab Emirates.
Petr.’s Supp. Pet. for Habeas (“Petr.’s Supp. Pet.”) ¶¶ 5, 13.
He was eventually taken into the custody of the Central
Intelligence Agency (“CIA”) in 2002. Id. ¶ 13. In May 2003,
while Al Nashiri was in CIA custody, the United States named him
as an unindicted co-conspirator in a criminal indictment in the
Southern District of New York. That indictment alleges that he
was part of a terrorist group in Yemen that conspired to bomb
marine vessels, including the U.S.S. Cole and
U.S.S. The Sullivans. In September 2006, Al Nashiri was publicly
transferred to the U.S. Naval Station at Guantanamo Bay. Id.
In December 2008, a Department of Defense civil servant referred
to as the “Convening Authority,”2 drafted eight charges against
2
Under the Military Commissions Act, 10 U.S.C. §§ 948a et
seq., the Secretary of Defense is authorized to “establish
military commissions” to conduct proceedings regarding charged
“offenses triable by military commission . . . .” 10 U.S.C.
§§ 948b(b), 948h. The Secretary has delegated the responsibility
to establish commissions to a “Convening Authority,” who is an
employee of the Department of Defense. See Petr.’s Supp. Pet.
¶ 9. The Convening Authority creates commissions by issuing
orders alleging charges and designating military officers who
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Al Nashiri for trial by military commission in February 2009
under the version of the Military Commissions Act in force at the
time. In January 2009, however, President Obama issued an
executive order to review the military commission system in
Guantanamo, and the charges filed in December 2008 were withdrawn
without prejudice in January 2009. Id. ¶ 14.
On April 20, 2011, Col. Edward Regan sent another charging
document to the Convening Authority seeking to bring 11 charges
against Al Nashiri for military commission trial under the
Military Commissions Act of 2009, 10 U.S.C. §§ 948a et seq.,
based on conduct that occurred between 1996 and 2002. The
Convening Authority can issue charges for actions that are
“committed in the context of and associated with hostilities.”
Hostilities include any conflict subject to the laws of war.
10 U.S.C. §§ 950p(c), 948a(9). The convening Authority can issue
charges only against people who are not U.S. Citizens. 10 U.S.C.
§ 948c (“Any alien unprivileged enemy belligerent is subject to
trial by military commission”).
On July 15, 2011, Al Nashiri filed a formal request to the
Convening Authority to not convene a military commission trial
against Al Nashiri for the offenses alleged in the charging
document arguing that they neither occurred in the context of nor
serve as the jury to recommend a verdict on the charges and an
upper range of punishment, which is then reviewed by the
Convening Authority. 10 U.S.C. § 948i, 950b.
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were related to the hostilities mentioned in 10 U.S.C. § 950p(c).
However, on September 15, 2011, the Convening Authority issued
charges based on nine of the 11 allegations contained in the
charging document. Petr.’s Supp. Pet. ¶ 23. Those nine charges
are the current charges pending against Al Nashiri and carry a
maximum penalty of death. They allege he played a role in three
attacks allegedly perpetrated by al Qaeda: the 2000 attempted
bombing of the United States Navy destroyer USS The Sullivans;
the October 2000 bombing of the United States Navy destroyer USS
Cole that killed seventeen American sailors; and the 2002 bombing
of a French oil tanker that killed one crew member. See Respts.’
Cross-Mot. to Hold in Abeyance (“Respts.’ Mot.”), Exhibit A
(“Charge Sheet”). The charges also allege that Al Nashiri
“assisted in [an] Al Qaeda plot, simultaneous attacks on United
States embassies in Kenya and Tanzania in East Africa[.]” Charge
Sheet at 7, Charge V ¶ 5. On August 30, 2012, Al Nashiri moved
before the military commission’s chief trial judge to have the
charges against him dismissed because the events they were based
upon were not hostilities countenanced by 10 U.S.C. § 950p(c).
Petr.’s Supp. Pet. ¶ 24. The chief trial judge denied that
motion in January 2013. Id.
Al Nashiri now moves to amend his petition for habeas corpus
to add claims seeking judicial review of the lawfulness of the
military commission trial against him, and moves for an
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injunction halting the military commission trial. Al Nashiri
argues that none of the crimes that are alleged against him took
place in the context of a recognized war, and that without
connection to a recognized armed conflict, the military cannot
“remove” his habeas case from the federal courts and adjudicate
it within a military commission. Petr.’s Supp. Pet. ¶ 1. The
respondents oppose those motions, and move to hold in abeyance
Al Nashiri’s habeas petition for the duration of the military
commission trial.
DISCUSSION
The Supreme Court has held that since habeas is an equitable
remedy, prudential concerns such as comity and the orderly
administration of justice may “‘require a federal court to forgo
the exercise of its habeas corpus power.’” Munaf v. Geren, 553
U.S. 674, 693 (2008) (quoting Francis v. Henderson, 425 U.S. 536,
539 (1976)). “‘Federal courts normally will not entertain habeas
petitions by military prisoners unless all available military
remedies have been exhausted.’” Khadr v. Obama, 724 F. Supp. 2d
61, 64-65 (D.D.C. 2010) (quoting Schlesinger v. Councilman, 420
U.S. 738, 758 (1975)); see also Al Odah v. Bush, 593 F. Supp. 2d
53, 57 (D.D.C. 2009) (stating that “[c]ourts ordinarily abstain
from considering habeas petitions or requests for other equitable
relief prior to the conclusion of a defendant’s criminal
proceedings”). “This is so because ‘implicit in the
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Congressional scheme’ creating the military court system is the
view that the ‘system generally is adequate to and responsibly
will perform its assigned task.’” Khadr, 724 F. Supp. 2d at 65
(quoting Councilman, 420 U.S. at 758). “‘Abstention, then,
ensures that federal courts respect Congress’s decision to
create[ ] an integrated system of military courts and review
procedures.’” Id. (quoting Councilman, 420 U.S. at 758).
Abstention under Councilman “is appropriate only to the
extent that this Court’s consideration of [Al Nashiri’s habeas
petition] would interfere with the military commission
proceeding.” Id. at 66. “Such interference is possible where
the claims raised in a habeas petition could overlap with the
military commission’s inquiries.” Id. (citing Al Odah, 593 F.
Supp. 2d at 59). Here, the military commission is expressly
charged with determining whether Al Nashiri’s charged acts fall
within the coverage of the statute. See 10 U.S.C. § 948d. The
military commission must determine whether Al Nashiri was an
“alien unprivileged enemy belligerent.” 10 U.S.C. § 948c. An
“unprivileged enemy belligerent” is defined under the Military
Commissions Act as an individual who is not a citizen of the
United States, who is not a prisoner of war under the Third
Geneva Convention, and who: “(A) has engaged in hostilities
against the United States or its coalition partners; (B) has
purposefully and materially supported hostilities against the
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United States or its coalition partners; or (C) was a part of al
Qaeda at the time of the alleged offense.” 10 U.S.C.
§ 948a(1),(6),(7). Al Nashiri’s primary challenge to his
detention in his supplemental habeas petition is that his charged
conduct is not covered by the statute. See Petr.’s Supp. Pet.
¶¶ 1, 27 (stating that “[n]one of the factual allegations against
Petitioner relate to events that occurred ‘in the context of and
were associated with hostilities[.]’”). That determination
necessarily overlaps with a prime determination the military
commission must make. Proceeding with the habeas petition, then,
would interfere with the military commission trial.
Al Nashiri advances several arguments against the
respondents’ motion.3 He asserts that abstention is improper
here because the military commission trial is not a substitute
that provides Al Nashiri the same relief - - namely, release from
captivity that the habeas petition provides. Petr.’s Opp’n to
Respts.’ Mot. (“Petr.’s Opp’n”) at 3. However, “the fact that
3
Because the respondents’ motion to stay will be granted,
Al Nashiri’s motion for a preliminary injunction will be denied
as moot. In any event, Al Nashiri has failed to show irreparable
injury. In his motion for a preliminary injunction, Al Nashiri
argues that he would be irreparably harmed by allowing the
military commission trial to proceed while his habeas petition is
pending. Petr.’s Mot. for Prelim. Injunc. at 19-25. However,
“[t]he inconvenience of any criminal prosecution, including those
associated with the military commissions, is insufficient,
standing alone, to warrant federal court intervention.” Al Odah,
593 F. Supp. 2d at 58 (citing Younger v. Harris, 401 U.S. 37, 46
(1971)).
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‘military commissions . . . are convened to consider whether [an
individual has] violated the laws of war and not whether [he]
should be released from custody’ does not alter the abstention
analysis.” Khadr, 724 F. Supp. 2d at 68 n.10 (quoting Al Odah,
593 F. Supp. 2d at 59). Al Nashiri also argues that the military
commission trial will not provide him with meaningful relief for
any potential complaints about his medical care or treatment in
confinement, nor would it provide timely judicial review.
Petr.’s Opp’n at 11-14. Al Nashiri further argues that the
military commission trial will not meaningfully remedy any
potential interference with Al Nashiri’s attorney-client
relationship, id. at 15-18, and would preclude him from
developing a fulsome factual record, id. at 19-20. However,
Al Nashiri provides no authority showing that courts’ traditional
deference to military commission trials is based on the
proposition that those trials offer identical protections and
procedures that are present in habeas proceedings or civilian
criminal trials. For example, the military court system that the
Court in Councilman deemed sufficient “to vindicate servicemen's
constitutional rights” itself did not incorporate identical
protections to those available at civilian criminal trials.
Councilman, 420 U.S. at 757-758.
Here, Al Nashiri’s military commission trial will occur in a
system established by Congress that constructs safeguards aimed
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at protecting Al Nashiri’s interests. For example, Al Nashiri
will be guaranteed the assistance of an appointed military
counsel as well as the right to retain civilian counsel. See 10
U.S.C. §§ 948k, 949c. He will have the right to challenge for
cause any and all members of the military commission itself and
the appointed judge. 10 U.S.C. § 949f. He will be entitled to
invoke the presumption of innocence, to engage in discovery, to
obtain and present exculpatory evidence, and to call witnesses on
his behalf. 10 U.S.C. §§ 949j, 949l(c)(1); see also Khadr, 724
F. Supp. 2d at 66 (“the Military Commissions Act of 2009 gives a
defendant [t]he opportunity to obtain witnesses and evidence
. . . comparable to the opportunity available to a criminal
defendant in a court of the United States under Article III of
the Constitution”) (internal quotation omitted). Further, the
military commission system guarantees an appeal of right to the
U.S. Court of Appeals for the District of Columbia Circuit, a
court “consisting of civilian judges ‘completely removed from all
military influence or persuasion,’” cf. Councilman, 420 U.S. at
758, with respect to “matters of law, including the sufficiency
of the evidence to support the verdict[,]” and to determine the
validity of a final judgment rendered by a military commission
and approved by the Convening Authority. 10 U.S.C. § 950g. The
military commission trial contains sufficient procedures and
protection to warrant abstention by this court.
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CONCLUSION
Because traditional principles of comity and judicial
economy support abstaining from exercising equitable jurisdiction
over Al Nashiri’s habeas petition while his military commission
trial is pending, it is hereby
ORDERED that the respondents’ motion [237] to hold
Al Nashiri’s habeas petition in abeyance be, and hereby is,
GRANTED. The clerk is DIRECTED to STAY and ADMINISTRATIVELY
CLOSE this case. It is further
ORDERED that the parties be, and hereby are, DIRECTED to
file a joint status report and proposed order within ten days
after the petitioner’s military commission trial is concluded.
It is further
ORDERED that the petitioner’s motion [228] for a preliminary
injunction be, and hereby is, DENIED. It is further
ORDERED that the petitioner’s motion [230] for leave to
amend his petition for habeas be, and hereby is, GRANTED. It is
further
ORDERED that the motion [232] for leave to file an amicus
brief and the motion [244] for proposed amici to participate in
oral argument be, and hereby are, DENIED without prejudice.
SIGNED this 29th day of December, 2014.
/s/
RICHARD W. ROBERTS
Chief Judge