Abd Al-Rahim Hussein Al-Nashiri

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2022 Decided September 2, 2022
No. 21-1208
IN RE: ABD AL-RAHIM HUSSEIN MUHAMMED AL-NASHIRI,
PETITIONER
On Petition for Writ of Mandamus and Prohibition
to the United States Court of Military Commission Review
Michel D. Paradis, Counsel, Office of Military
Commissions, argued the cause for petitioner. With him on the
petition for writ of mandamus and the reply were CAPT Brian
Mizer, JAGC, USN, and Anthony Natale, Lead Counsel.
John S. Summers, Andrew M. Erdlen, and Alexander J.
Egervary were on the brief for amici curiae the Center for
Victims of Torture, et al. in support of the petition for writ of
mandamus.
Jason D. Wright and Juan O. Perla were on the brief for
amici curiae Professor Philippa Webb, et al. in support of the
petition for writ of mandamus.
Joseph F. Palmer, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the opposition
to the petition for writ of mandamus were Matthew G. Olsen,
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Assistant Attorney General for National Security, and Danielle
S. Tarin, Attorney.
Before: HENDERSON and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Al-Nashiri, a
Guantanamo prisoner awaiting trial as a terrorist, petitions this
Court for a writ of mandamus, forbidding the government from
using statements obtained by torture in prosecution against him
and the Military Commission from receiving such evidence.
Because we have no jurisdiction to hear this petition for several
reasons, we dismiss it.
I. Background
Petitioner is a Saudi Arabian who was captured during the
United States response to the terrorist attacks of September 11,
2001. He was held in the custody of the Central Intelligence
Agency for a time before being transferred to Department of
Defense custody at the United States Naval Station in
Guantanamo Bay, Cuba.
In an effort to gain actionable intelligence from Al-Nashiri
regarding any future attacks, the CIA employed “enhanced
interrogation techniques” (“EITs”). Some of these techniques
allegedly constituted torture under United States and
international law. Laws concerning the use of torture forbid
the use of statements obtained as a result of such torture. See,
e.g., 10 U.S.C. § 948r(a); see also International Covenant on
Civil and Political Rights, Dec. 16, 1966, S. Exec. Rep. 102-
23, 999 U.N.T.S. 175; see also Universal Declaration of
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Human Rights, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/217(III) (Dec. 10, 1948). The relevant statute in this
case dictates that “[n]o statement obtained by the use of torture
or by cruel, inhuman, or degrading treatment . . . shall be
admissible in a military commission under this chapter, except
against a person accused of torture or such treatment as
evidence that the statement was made.” 10 U.S.C. § 948r(a).
The Government does not dispute that the EITs used on Al-
Nashiri constitute torture.
In 2008, the United States brought capital charges against
Al-Nashiri for his involvement in various terrorist plots.
Continuous litigation has been ongoing since 2011 before a
military commission, a non-Article III body tasked with
“try[ing] alien unprivileged enemy belligerents for violations
of the law of war and other offenses . . .” 10 U.S.C. § 948b(a);
see also 10 U.S.C. § 948d (providing jurisdiction of military
commissions). In 2021, the Government submitted a brief to
the Commission, submission AE 353V, related to a discovery
matter that contained statements compelled by torture.
Before the Commission, the Government did not dispute
that the statements by Al-Nashiri were products of torture.
Rather, it argued that it could use the statements in AE 353V to
help answer certain discovery questions because § 948r(a) only
barred the introduction of such statements at trial, not in
pretrial proceedings. The Government contended that because
it offered the statements not for their truth, but to answer certain
discovery questions, the statements were not prohibited. The
Commission agreed with the Government and ruled the
Government could use the two statements in pretrial
proceedings.
Al-Nashiri then petitioned the United States Court of
Military Commission Review (“USCMCR”) for a writ of
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mandamus (1) vacating the Commission’s ruling that the
Government could use the two statements obtained by torture;
and (2) directing the Commission to reconsider any other ex
parte order that relied on statements obtained by torture. While
that petition was pending, the Government successfully moved
the Commission to remove the torture statements from the
Commission’s consideration, over the objections of Al-
Nashiri. The USCMCR therefore found the issue moot but
vacated the Commission’s order to include the statements. It
also found the factual record too sparse to support a vacatur of
the ex parte orders.
Al-Nashiri now petitions this Court for a writ of
mandamus to: (1) enjoin the Government from offering any
statements obtained by torture; (2) enjoin the Commission from
considering the same; and (3) vacate all orders based on
pleadings or arguments containing such statements.
In its briefing to this Court opposing the writ, the
Government changes its position on the use of the statements
obtained by torture. It now concedes that no such statements
are admissible at any phase of a trial, including in the pre-trial
discovery stages. The Government also assured this Court
during oral argument that “[the Government] do[es] not dispute
and will not oppose a review by the military commission judge
to conduct a review, to identify whether any ex parte orders
exist that contain such [§] 948r(a) errors. [The Government]
agree[s] that that process should take place in the military
commission.” Oral Arg. Tr. 27:6–11 (emphasis added).
II. Analysis
Al-Nashiri’s petition falls outside the jurisdiction of the
Court for at least four reasons, at least three of them
jurisdictional. We explain each of these reasons in turn.
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a. Jurisdictional Bars
The federal courts are courts of limited jurisdiction.
These courts are empowered to hear only those matters
allocated to them by the Constitution. Three jurisdictional
doctrines bar Al-Nashiri’s petition in this case: mootness,
ripeness, and standing.
i. Mootness
In order for us to entertain Al-Nashiri’s requests to
enjoin the Government and Commission from offering and
considering, respectively, any evidence obtained by torture, Al-
Nashiri must present the Court with an “‘actual, ongoing
controvers[y].’” Clarke v. United States, 915 F.2d 699, 701
(D.C. Cir. 1990) (quoting Honig v. Doe, 484 U.S. 305, 317
(1988)). The mootness doctrine requires that if “events have
so transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of
affecting them in the future,” then the request is moot.
Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C.
Cir. 1990). Such is the case with regard to the withdrawn
statements.
After first holding the Government’s submission AE
353V could include Al-Nashiri’s statements obtained by
torture in the limited context of a discovery obligation, the
Commission judge reconsidered the use of these statements
upon motion by the Government. He then reversed course and
ultimately ordered the Government to file an amended version
of its discovery addendum without “any reference to [the]
statements.” Pet. A236. He also held that the “Commission
[would] not consider the statements by the Accused” while Al-
Nashiri was being tortured. Id.6
The USCMCR, in considering Al-Nashiri’s petition for
mandamus, thus found this issue moot. It is true that the
Commission initially ruled the torture statements could support
a discovery issue. However, it ultimately reconsidered and
ordered the Government to withdraw the statements. The
USCMCR held that Al-Nashiri had “‘already obtained all the
relief that [he] ha[d] sought.’” Pet. A241 (quoting Schnitzler
v. United States, 761 F.3d 33, 37 (D.C. Cir. 2014)). Though
holding the issue moot, the USCMCR went so far as to vacate
the Commission’s original order admitting the statements in
order to “clarify” the evidence presented before the
Commission. Pet. A242. The USCMCR emphasized the
narrow focus of the Commission’s discovery ruling on those
two statements only, suggesting that if the Commission relied
on other evidence obtained by torture, the issue would not be
moot.
Now, the Government has assured this Court in
briefing, oral argument, and in subsequent letters submitted to
us under Federal Rule of Appellate Procedure 28(j) that it will
not seek to introduce any evidence obtained by the torture of
Al-Nashiri or any third party in any stage of the proceedings.
See Resp. 3–4; Oral Argument Tr. 27:21–25; see also Response
to 28(j) Letter, Joseph F. Palmer to CADC Clerk of Court, May
20, 2022; see also 28(j) Letter, Joseph F. Palmer to CADC
Clerk of Court, July 6, 2022. The Government has also
reviewed the ex parte record and withdrawn the only other two
statements it uncovered as having been obtained through the
use of torture. See Resp. 39, Decl. of Lt. Comm. Charles M.
Roman (identifying submissions AE 120LL and AE
120DDDDDD as using the same statement by Al-Nashiri
obtained under torture); see also 28(j) Letter, Michel Paradis to
CADC Clerk of Court, April 29, 2022 (same); see also 28(j)
Letter, Joseph F. Palmer to CADC Clerk of Court, July 14,
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2022 (stating those submissions have been withdrawn and
resubmitted without the torture statements); see also Resp. 21–
22. All of this provides us with “strong” and “sufficient”
assurances that the Government has changed its practice
regarding the use of these statements in pretrial proceedings.
See Porup v. Cent. Intel. Agency, 997 F.3d 1224, 1232, 1233
(D.C. Cir. 2021) (holding that the government’s declaration
provided “strong assurance . . .” and “sufficient assurance that
the [government’s] new policy ha[d] displaced the practices
contested by [the appellant]”); cf. Zukerman v. United States
Postal Serv., 961 F.3d 431, 444 (D.C. Cir. 2020) (refusing to
find an issue moot when the Government could not show that
it had ceased its “disputed conduct”).
Al-Nashiri argues that the Government’s withdrawal of
the statements constitutes a “textbook case of voluntary
cessation.” Pet. 57. Therefore, he contends that this “litigation
maneuver” cannot moot this issue. Id. Al-Nashiri finally
contends that even if he has “‘obtained relief as to a specific
request’ that gave rise to the controversy,” this “‘will not moot
a claim that an agency policy or practice’ that is likely to have
prospective effect is unlawful.” Pet. 58 (quoting Payne
Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir.
1988) (emphasis in original)).
The doctrine of voluntary cessation requires that while
“generally voluntary cessation of challenged activity does not
moot a case,” an issue may still be considered moot if “(1)
‘there is no reasonable expectation that the alleged violation
will recur,’ and (2) ‘interim relief or events have completely or
irrevocably eradicated the effects of the alleged violation.’”
Nat’l Black Police Ass’n v. Dist. of Columbia, 108 F.3d 346,
349 (D.C. Cir. 1997) (quoting County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979)).
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Both elements are present in this case—(1) the
Government has assured this Court it will not offer any
statements obtained by the torture of anyone at any stage of the
proceedings, thus relieving Al-Nashiri’s contention that the
Government’s practice “likely to have prospective effect is
unlawful;” and (2) the Government has withdrawn the
statements identified to have been made under torture. There
is simply no remaining case or controversy with respect to the
identified statements obtained by Al-Nashiri’s torture.
ii. Ripeness
Similarly, Al-Nashiri asks this Court to enjoin the
Government and Commission from offering and considering
any future evidence obtained by torture. Mootness and
ripeness are two sides of the Article III justiciability coin, and
this claim has not ripened into a case or controversy.
The ripeness doctrine requires that the federal courts
“reserve[] judicial power for resolution of concrete and fully
crystalized disputes.” Cobell v. Jewell, 802 F.3d 12, 21 (D.C.
Cir. 2015) (internal quotation marks and citations omitted). In
considering the ripeness of an issue, courts evaluate both “(1)
the fitness of the issues for judicial decision and (2) the
hardship to the parties of withholding court consideration.” Id.(internal quotation marks and citations omitted). We have held
that “a case is ripe when it ‘presents a concrete legal dispute
[and] no further factual development is essential to clarify the
issues . . . ’” and the issue “has ‘crystallized’ sufficiently for
purposes of judicial review.” Rio Grande Pipeline Co. v.
FERC, 178 F.3d 533, 540 (D.C. Cir. 1999) (quoting Payne, 837
F.2d at 492–93) (alterations in original)). In short, “[a] claim
is not ripe for adjudication if it rests upon ‘contingent future
events that may not occur as anticipated, or indeed may not
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occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998)
(citations omitted).
The issue of whether the Government may offer future
statements obtained by torture to support its case is not yet ripe.
This concern is not fit for judicial decision because it has not
yet crystallized into a concrete legal dispute felt by the parties.
There are no identified statements made by Al-Nashiri under
torture that the Government has not withdrawn. And
furthermore, the Government has repeatedly assured us it will
not bring such statements in the future. Given the strong
assurances from the Government and both the Commission’s
and USCMCR’s position not to consider the prior statements
obtained by torture, the Government’s offering of any further
statements obtained by torture constitutes a “contingent future
event[] that may not occur as anticipated, or indeed may not
occur at all.” Texas, 523 U.S. at 300.
Al-Nashiri argues this issue ripened “the moment [the
Government] used evidence obtained by torture” in its
discovery filing and accuses the Government of
misunderstanding the law of justiciability. Pet. 59. It is Al-
Nashiri, however, who misunderstands. As we explained
above, the issue of the withdrawn torture statements, or in Al-
Nashiri’s words “the moment [the Government] used evidence
obtained by torture,” is not unripe, but rather moot. The issue
of any future submissions by the Government of evidence
obtained by torture is as yet unripe for our review.
Al-Nashiri’s other request—to vacate all ex parte
orders using statements obtained by torture—is similarly
unripe for adjudication. Al-Nashiri has not identified any non-
withdrawn submissions that rely upon torture statements,
preventing this issue from becoming “crystallized” into a
“concrete legal dispute.” Rio Grande Pipeline, 178 F.3d at 540
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(quoting Payne, 837 F.2d at 492–93). Al-Nashiri asserts that
the Government has not disputed that it has relied on such
evidence in ex parte litigation, which Al-Nashiri is necessarily
unable to ascertain because he is not privy to those
determinations. Al-Nashiri further avers that transcripts of
these ex parte proceedings are not uniformly kept, making a
future appeal to this Court of the ex parte record particularly
problematic.
We recognize that the Commission must balance Al-
Nashiri’s right to defend himself with the Government’s duty
to keep certain information classified. To this end, any vacatur
of as-yet-unidentified ex parte rulings by this Court would be
premature and therefore unripe. That task belongs to the
Government and Commission in the first instance. As we
explained above, the Government has already undertaken a
review of the voluminous ex parte record, withdrawing the two
additional statements it identified as constituting products of
torture. See Resp. 39, Decl. of Lt. Comm. Charles M. Roman;
28(j) Letter, Joseph F. Palmer to CADC Clerk of Court, July
14, 2022. Furthermore, we are satisfied by the Government’s
representation made during oral argument that it will not
oppose an order by the Commission to identify any further
statements obtained by torture in the record. Oral Arg. Tr.
27:6–11. If issues arise as to any such statements in any of the
ex parte proceedings, those issues might ripen into a case or
controversy that can then be resolved by the Commission,
USCMCR, or this Court, as necessary.
iii. Standing
The standing doctrine requires that for a claim to be
justiciable, the claimant must have injury that is actual or
imminent by the act of the defendant or respondent in such a
fashion as can be remedied by the action at bar. Lujan v. Defs.
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of Wildlife, 504 U.S. 555, 560–61 (1992). At this point in time,
Al-Nashiri has alleged no injury that has been caused him by
the possible (albeit remote) use of the torture-obtained
statements. Obviously, if he has not alleged injury, he has not
alleged redressability. Under no theory of law does he have
standing to bring this action at this time.
b. Failure to Allege a Mandamus Claim
Al-Nashiri has failed to allege the necessary elements
for the claim of mandamus. Mandamus requires that: (1) he
has “no other adequate means to attain the relief he desires”;
(2) his “right to issuance of the writ is clear and indisputable”;
and (3) “the issuing court, in the exercise of its discretion, must
be satisfied that the writ is appropriate under the
circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S.
367, 380–81, (2004) (internal citations and quotation marks
omitted). Although this failure to allege a claim is normally a
matter for treatment under Rule 12(b)(6), the Supreme Court
itself has treated the failure to allege a claim within the
jurisdiction of the court as jurisdictional. See Ashcroft v. Iqbal,
556 U.S. 662, 674 (2009) (“[D]etermining whether
respondent’s complaint has the ‘heft’ to state a claim is a task
well within an appellate court’s core competency”); see also id.at 672–73.
As we have explained to Al-Nashiri before,
“[m]andamus is inappropriate in the presence of an obvious
means of review: direct appeal from final judgment.” In re Al-
Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015). The “MCA
empowers this Court to review all ‘matters of law’ once a
military commission issues a final judgment and both the
convening authority and the [USCMCR] review it.” Id. at 79
(citing 10 U.S.C. § 950g(a), (d)). Thus, Al-Nashiri again has
adequate means to attain the relief he desires for this issue;
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namely, a direct appeal to this Court from any final judgment
of the Commission with which he disagrees.
Al-Nashiri insists that the lower proceedings have been
marked with the taint of torture, making any of the
Commission’s discovery or other preliminary rulings
“irreparably contaminated in ways that cannot be corrected
post-trial.” Pet. 53–54. This is not so. As previously
discussed, the Government has only been able to identify a
handful of statements obtained through the use of torture, now
withdrawn, in the many thousands of pages of documents
comprising the record in this case. Moreover, Al-Nashiri may
now move the Commission to conduct a search of its ex parte
rulings, to which he is not privy, to identify any additional
torture statements, a motion the Government has assured us it
will not oppose. Oral Arg. Tr. 27:6–11. If the Government
abandons this promise and the Commission relies on any such
statements, Al-Nashiri can directly appeal the Commission’s
final judgment to this Court.
III. Conclusion
For the reasons set forth above, we dismiss Al-Nashiri’s
petition for a writ of mandamus.