In re Abd Al-Rahim Hussein Muhammed Al-Nashiri

• Decision Date: 30 August 2016
• Docket Number: C/w 15-5020,No. 15-1023,15-1023
• Citation: 835 F.3d 110
• Parties: In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri, Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

835 F.3d 110

In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri, Petitioner.

No. 15-1023

C/w 15-5020

United States Court of Appeals, District of Columbia Circuit.

Argued February 17, 2016

Decided August 30, 2016

Michel D. Paradis, Counsel, Office of the Chief Defense Counsel, argued the cause for petitioner-appellant. With him on the briefs was Richard Kammen, Indianapolis, IN. Nancy Hollander entered an appearance.

Somnath Raj Chatterjee, San Francisco, CA, was on the brief for amici curiae Retired Military Admirals and Generals in support of appellant.

Robert Barton was on the brief for amicus curiae Professor David W. Glazier, Loyola Law School of Los Angeles, in support of petitioner-appellant.

David H. Remes and John T. Parry were on the brief for amicus curiae Physicians for Human Rights in support of petitioner.

Eric S. Montalvo, Alexandria, VA, was on the brief for amicus curiae National Institute of Military Justice in support of petitioner.

Joseph F. Palmer, Attorney, U.S. Department of Justice, argued the cause for respondent-appellee. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Matthew M. Collette, Washington, DC, Sonia K. McNeil, Michael Shih, and John F. De Pue, Attorneys, and Steven M. Dunne, Chief, Appellate Unit.

Before: Tatel and Griffith, Circuit Judges, and Sentelle, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge Tatel.

Griffith, Circuit Judge:

Abd Al-Rahim Hussein Muhammed Al-Nashiri is the alleged mastermind of the bombings of the U.S.S. Cole and the French supertanker the M/V Limburg , as well as the attempted bombing of the U.S.S. The Sullivans . Together, the completed attacks killed 18 crew members and injured dozens more. The government charged Al-Nashiri with nine offenses for his role in the attacks and convened a military commission to try him. His trial, and any subsequent appeals, will be governed by the Military Commissions Act, in which Congress strengthened the procedural protections and review mechanisms for military commissions in response to the Supreme Court's guidance in Hamdan v. Rumsfeld , 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). Al-Nashiri now seeks to avoid the structure Congress has created. He petitions for a writ of mandamus to dissolve the military commission convened to try him and appeals the district court's denial of his motion to preliminarily enjoin that trial. We deny the petition for mandamus relief and affirm the district court.

I

A

At this pretrial stage, we recount the details of Al-Nashiri's alleged offenses based on the information provided in the government's charges. Al-Nashiri, a Saudi national, is a member of al Qaeda who orchestrated the attempted bombing of The Sullivans in January 2000 and the successful bombings of the Cole in October 2000 and the Limburg in October 2002.

Al-Nashiri met with Osama bin Laden and other senior members of al Qaeda in 1997 or 1998 to plan a “boats operation” that would attack ships in the Arabian Peninsula. The government argues that while bin Laden was planning the “boats operation,” he was also coordinating the “planes operation” that would unfold on September 11, 2001. At bin Laden's direction, Al-Nashiri and his alleged co-conspirator, Walid bin Attash, traveled to Yemen around 1998 to prepare for the boats operation. Al-Nashiri scouted the region and monitored ship traffic. He and his co-conspirators ultimately focused on Aden Harbor and bought and stored explosives to carry out an attack there. In 1999, after bin Attash was arrested, bin Laden instructed Al-Nashiri to take control of the operation. Al-Nashiri and his co-conspirators recruited others to the cause, bought a boat, and obtained false identification documents.

Under Al-Nashiri's direction, his co-conspirators steered an explosive-filled boat toward The Sullivans in January 2000 while the warship was refueling. But the boat carrying the explosives foundered in Yemen's Aden Harbor, thwarting the plan. Al-Nashiri and his co-conspirators recovered the boat and confirmed that the explosives could be used in future attacks. Sometime after the failed attack, Al-Nashiri returned to Afghanistan to meet with bin Laden and other high-ranking members of al Qaeda and to receive explosives training from an al Qaeda expert.

By the summer of 2000, Al-Nashiri had returned to Yemen to carry out preparations for a second attack in Aden Harbor. He and his co-conspirators rented a house from which they could surveil the harbor, repaired and tested the attack boat, filled it with explosives, and arranged for the attack to be videotaped. Sometime around September 2000, Al-Nashiri reported to bin Attash—who by then had been released from jail and was in Afghanistan—that the operation was ready and that he had chosen suicide bombers to carry it out. Before the attack, Al-Nashiri returned to Afghanistan at bin Laden's direction and told him the bombing was imminent.

Adhering to Al-Nashiri's instructions, in October 2000 the suicide bombers launched the boat—again filled with explosives—and piloted it toward the Cole , which was refueling in Aden Harbor. The bombers gave friendly gestures to crew members and steered their boat alongside the Cole , where they detonated the explosives. The blast killed 17 crew members and injured at least 37, and left a hole in the Cole 's side measuring about 30 feet in diameter.

After the attack, Al-Nashiri began planning another bombing. He and his co-conspirators acquired another boat and explosives, with Al-Nashiri directing the transfer of money to fund the attack. In October 2002, suicide bombers under Al-Nashiri's direction drew their explosive-filled boat alongside the French supertanker the Limburg near the port of Al Mukallah, Yemen. The explosion blasted a hole in the ship's hull, killing one crew member and injuring 12. Some 90,000 barrels of oil also spilled from the tanker into the Gulf of Aden.

Local authorities arrested Al-Nashiri in Dubai in 2002 and turned him over to U.S. custody. He was transferred to the Guantanamo Bay Naval Base in 2006. A year later, a Combatant Status Review Tribunal determined that Al-Nashiri was detainable as an “enemy combatant” under the Authorization for Use of Military Force that Congress had passed and the President had signed in response to the attacks of September 11, 2001. Al – Nashiri v. MacDonald , 741 F.3d 1002, 1005 (9th Cir. 2013). The AUMF permits the President to use “all necessary and appropriate force” against the “nations, organizations, or persons” he determines were responsible for the 9/11 attacks. Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001). Al-Nashiri filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia in 2008, challenging various aspects of his detention at Guantanamo. Three years later, with Al-Nashiri's habeas petition still pending, the Defense Department convened a military commission to try him for offenses including terrorism, murder in violation of the law of war, and attacking civilians. In re Al – Nashiri , 791 F.3d 71, 75 (D.C. Cir. 2015). The government is seeking the death penalty.

B

The current system of military commissions at Guantanamo Bay “is the product of an extended dialogue among the President, the Congress, and the Supreme Court.” Al – Nashiri , 791 F.3d at 73. After the passage of the AUMF in September 2001, the President began detaining enemy combatants and trying them by military commission at Guantanamo. The Supreme Court considered the legality of the commissions established by the President in Hamdan v. Rumsfeld , 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), and held that they exceeded certain limits Congress had previously imposed on the President's authority. Specifically, the Court concluded that the President's commissions did not comply with procedural protections set out in the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. See id. at 613, 620–28, 126 S.Ct. 2749. But four Justices explained that “[b]ecause Congress [ ] prescribed these limits [on presidential authority], Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws.” Id. at 653, 126 S.Ct. 2749 (Kennedy, J., concurring).

In response, Congress passed the Military Commissions Act (MCA), which established a system of military commissions and largely exempted them from the requirements of the UCMJ and the Geneva Conventions. The MCA created the Court of Military Commission Review (CMCR) and empowered it to review judgments of military commissions. Al – Nashiri , 791 F.3d at 74. Under the current version of the MCA, as revised in 2009, the CMCR is composed of military and civilian judges who sit in panels of at least three. See 10 U.S.C. §§ 950d, 950f. It reviews questions of both fact and law. See id. § 950f. Our court has authority under the MCA to review military-commission convictions, as approved by the CMCR. Id. § 950g(a). We may review the CMCR's legal conclusions, including the sufficiency of the evidence supporting the verdict. Id. § 950g(d).

The MCA provides that military commissions have jurisdiction to try “alien unprivileged enemy belligerent[s],” id. § 948c, for “any offense made punishable” by the MCA, “whether such offense was committed before, on, or after September 11, 2001.” Id. § 948d. The statute then lists 32 offenses that are “triable by military commission.” Id. § 950t. It further provides that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” Id. § 950p(c). Hostilities are defined as “any conflict subject to the laws of war.” Id. § 948a(9).

Al-Nashiri's military-commission proceedings were placed on hold in early 2015, when the presiding military judge granted Al-Nashiri's motion to abate the commission's proceedings while the...