Abd Al Rahim Hussein Al-Nashiri v. Macdonald

• Decision Date: 20 December 2013
• Docket Number: No. 12–35475.,12–35475.
• Citation: 741 F.3d 1002
• Parties: Abd Al Rahim Hussein AL–NASHIRI, Plaintiff–Appellant, v. Bruce MacDONALD; Paul Oostburg Sanz, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

741 F.3d 1002

Abd Al Rahim Hussein AL–NASHIRI, Plaintiff–Appellant,

v.Bruce MacDONALD; Paul Oostburg Sanz, Defendant–Appellee.

No. 12–35475.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 3, 2013.

Filed Dec. 20, 2013.

Recognized as Unconstitutional

28 U.S.C.A. § 2241(e)(1).

Michel Paradis (argued), Office of the Chief Defense Counsel, Washington, D.C.; Richard Kammen, Gilroy, Kammen, Maryan & Moudy, Indianapolis, IN; Robert Gombiner, Law Offices of Robert Gombiner, Seattle, WA, for Plaintiff–Appellant.

Sydney Foster (argued) and Robert M. Loeb, Attorneys, Appellate Staff, and

Stuart F. Delery, Principal Deputy Assistant Attorney General, United States Department of Justice, Civil Division, Washington, D.C.; Jenny A. Durkan, United States Attorney, Seattle, WA, for Defendant–Appellee.

James J. Brosnahan, Somnath Raj Chatterjee, and Megan C. Kiefer, Morrison & Foerster LLP, San Francisco, CA, for Amici Curiae Retired Military Admirals, Generals, and Colonels.

David H. Remes, Appeal for Justice, Silver Spring, MD; John T. Parry, Portland, OR; William J. Aceves, San Diego, CA, for Amicus Curiae Physicians for Human Rights.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, Senior District Judge, Presiding. D.C. No. 3:11–cv–05907–RJB.

Before: ARTHUR L. ALARCÓN, M. MARGARET McKEOWN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

Abd Al Rahim Hussein Al–Nashiri is a noncitizen “enemy combatant” undergoing proceedings before a military commission at the United States Naval Base in Guantanamo Bay, Cuba. The charges against Al–Nashiri arose from his alleged role in three terrorist plots: the 2000 attempted bombing of the U.S.S. The Sullivans; the 2000 bombing of the U.S.S. Cole, which killed seventeen U.S. military personnel; and the 2002 bombing of the M/V Limburg, which killed one civilian. Al–Nashiri seeks a declaratory judgment that the military commission lacks jurisdiction to hear the charges against him because the alleged acts occurred in Yemen, where he argues no war or hostilities existed in 2000 or 2002. More specifically, he claims that Vice Admiral Bruce MacDonald (Ret.), then the Convening Authority for the Office of Military Commissions, over-stepped his authority because “[t]he President and Congress uniformly declined to confer [war-time] status on events in Yemen” during that period. Consistent with our recent decision in Hamad v. Gates, 732 F.3d 990 (9th Cir.2013), we hold that Section 7 of the Military Commissions Act (“MCA § 7”) of 2006 deprived the district court of subject matter jurisdiction over Al–Nashiri's claims. 28 U.S.C. § 2241(e).

Background

I. Military Commission Authority

Congress, by authorizing the use of military force following the September 11, 2001 terrorist attacks, gave the President the power to detain certain individuals as a “fundamental and accepted ... incident to war.” Boumediene v. Bush, 553 U.S. 723, 733, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion)). Shortly thereafter, President Bush issued an order providing for military commission trials of noncitizens he had reason to believe had been or currently were members of al-Qaida or had otherwise participated in terrorist activities directed at the United States. Detention, Treatment, and Trial of Certain Non–Citizens in the War Against Terrorism, 66 Fed.Reg. 57,833 (Nov. 13, 2001). A 2004 Department of Defense order created the Combatant Status Review Tribunal to determine whether the Executive Branch had properly designated noncitizen detainees as “enemy combatants.” Memorandum from Deputy Secretary of Defense Paul Wolfowitz re Order Establishing Combatant Status Review Tribunal § a (July 7, 2004), available at http:// www. defense. gov/ news/ Jul 2004/ d 20040707 review. pdf. Absent such a designation, military commissions lack authority over detainees. 10 U.S.C. § 948b (providing that the MCA's purpose is to “establish[ ] procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States”); cf. Hamdi v. Rumsfeld, 542 U.S. 507, 509, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (stating that “a citizen held in the United States as an enemy combatant [must] be given a meaningful opportunity to contest the factual basis for that detention,” i.e. his designation as an enemy combatant).

After legal challenges on multiple fronts, in Hamdan v. Rumsfeld, the Supreme Court invalidated, as violations of the Uniform Code of Military Justice and the Geneva Conventions, a number of the commission procedures authorized by statute and executive order. 548 U.S. 557, 625, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). In response to Hamdan, Congress enacted the Military Commissions Act of 2006. Pub.L. No. 109–366, 120 Stat. 2600 (2006) (“2006 MCA”), 28 U.S.C. § 2241(e) (2006); see Boumediene, 553 U.S. at 735, 128 S.Ct. 2229. The 2006 MCA authorized trial by military commission for “alien unlawful enemy combatant[s].” 2006 MCA § 3.

In 2009, Congress largely superseded the 2006 MCA and provided detainees certain additional procedural safeguards. Military Commissions Act of 2009, Pub.L. No. 111–84, 123 Stat. 2574 (2009) (“2009 MCA”), 10 U.S.C. §§ 948a et seq. Relevant to these proceedings, the 2009 MCA authorized the President to establish military commissions to try “alien unprivileged enemy belligerents,” as opposed to the earlier designation, “enemy combatants,” for violations of the law of war and other offenses triable by military commissions. 10 U.S.C. §§ 948b(a)-(b), 948c. The offenses specified in the 2009 MCA are “triable by military commission ... only if the offense is committed in the context of and associated with hostilities.” Id. § 950p(c). Under the 2009 MCA, hostilities are “any conflict subject to the laws of war.” Id.§ 948a(9).

II. Al–Nashiri's Proceedings¹

Al–Nashiri, a Saudi national, was arrested in Dubai in 2002 and held in U.S. custody. In September 2006, Al–Nashiri was transferred to Guantanamo Bay, where he remains in detention. The following year, a Combatant Status Review Tribunal determined that Al–Nashiri was an “enemy combatant.” ² Charges against Al–Nashiri alleging nine violations of the MCA were referred to the Military Commission Convening Authority in 2011. The charges included the three referenced al-Qaida terrorist plots, conspiring with Osama bin Laden and others between 1996 and 2002 to “commit Terrorism and Murder in Violation of the Law of War,” and other related charges.

Following referral of these charges, Al–Nashiri formally requested that MacDonald not convene a military commission. Al–Nashiri principally argued that the commission could not try him for the alleged offenses because they “did not occur in the context of and were not associated with hostilities.” This argument was based on a statement by President Clinton in response to the U.S.S. Cole bombing suggesting that it was a peacetime attack; Congress's failure to declare war or pass any other authorization for the use of military force in response to the U.S.S. Cole bombing; President Bush's failure to certify the existence of hostilities in Yemen until his War Powers Resolution report to Congress in September 2003; and the fact that Congress first recognized an armed conflict in Yemen in a 2009 Senate resolution.³

MacDonald issued orders convening a commission to try Al–Nashiri for the charges associated with the three terrorist plots. In response, Al–Nashiri filed suit in the Western District of Washington naming MacDonald, the sole defendant, in his individual capacity. The Complaint alleges that MacDonald's military commission referral violated 10 U.S.C. § 950p(c); Article III § 2 of the Constitution; and the Fifth, Sixth, and Eighth Amendments because the alleged offenses did not “occur,” as a matter of law, “in the context of and [were] not associated with hostilities.” He requested a declaratory judgment stating that “neither the President nor Congress certified the existence of an armed conflict subject to the laws of war in Yemen prior to September 2003” and that MacDonald “acted beyond his authority and in violation of the constitution by issuing orders to convene a military commission with the power to recommend the sentence of death for allegations relating to” the three bombing incidents.

The district court dismissed Al–Nashiri's suit for lack of subject matter jurisdiction on the grounds that MCA § 7 and sovereign immunity barred the claims. In the alternative, the court reasoned that even if it had subject matter jurisdiction, principles of restraint articulated in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), counseled in favor of the court's abstention from exercising equitable jurisdiction.

DISCUSSION

I. Military Commissions Act § 7

We first consider the threshold question of whether MCA § 7 stripped the district court of subject matter jurisdiction over Al–Nashiri's action. The answer, according to Hamad, is yes.

Section 7 of the Military Commissions Act provides:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States...