2016 01 15 Al Nashiri Reply Brief

USCA Case #15-1023
UNCLASSIFIED//FOR PUBLIC RELEASE

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filed with Classifi ed

1TI (
Officer
15-5020 & 1 s:
[Oral argument scheduled February 17, 2016]
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Docket Nos. 15-5020 & 15-1023
ABD AL-RAHIM HUSSEIN AL-NASHlRl,
Appellant,
v.
BARACK OBAMA, et al.,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
IN RE: ABO AL-RAHIM HUSSEIN AL-NASHIRI

PETITIONER-APPELLANT'S REPLY BRIEF
Michel Paradis
Department of Defense
Military Commissions Defense Office
1620 Defense Pentagon
Washington, DC 20301
l .703 .696.9490x115
michel. paradis@osd.mi I
Richard Kammen
Kammen & Moudy
135 N. Pennsylvania St., Suite 1175
Indianapolis, IN 46204
1.317.643.6009
richard.kammen@osd.mil
Counsel for Petitioner-Appellant
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lJNCLASSWfED
(~CERTIFICATE
I.
AS TO PARTIES, RULINGS AND RELATED CASES
(~Parties
and Amici Appearing Below
a. (~ Abd Al-Rahim Al-Nashiri, Defendant-Petitioner
b. (-H1 United States of America

c. ~ Barack Obama, et al., Respondents
d . (-H7 Amicus Curiae Retired Generals, Admi rals & Colonels, James
Brosnahan (on brief)

e. (~ Amicus Curiae David Glazier, Thomas Mcintosh (on brief)
II.
(~Parties
and amici Appearing in this Court
a. (~ Abd Al-Rahim Hussein Al-Nashiri, Petitioner-Appellant
b.
(-H? U.S. Department of Defense, Respondent
c. (~ Barack Obama, et al., Appel/ees
d.
(~
Amicus Curiae Retired Generals, Admirals & Colonels, James
Brosnahan (on brief)

e. (~ Amicus Curiae David Glazier, Thomas Mcintosh (on brief)
f.
(~
Amicus Curiae Physicians for Human Rights, David Remes
(on brief)
g. (~ Amicus Curiq.e National Institute of Military Justice, ~ric

Montalvo (on brief)
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Lil JCL.A88fFI E:B

(~Rulings
III.
(~
under Review
This case consolidated two actions. The firs t is a petition for a writ of
mandamus and prohibition to the military commission created by Convening Order
# 11 -02 (Sept. 28, 2011 ). The second is an appeal from the denial of a preliminary
injunction in a habeas case by the United States District Court for the District of
Columbia, Case No. 08-1207. This latter decision is reported at Al-Nashiri v.
Obama, 76 F.Supp.3d 2 18 (D.D.C. 2014).

IV.
(~
Related Cases
(~Petitioner was
previously before this Court in Case No. 14-1203. That
case raised this Court's jurisdiction to issue equitable relief via the All Writs Act,
28 U.S.C. 1651, to military commissions convened under the Military
Commissions Act of2009, 123 Stat. 2190 (2009). This Court's decision was
reported as Jn re: Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015).
Dated: January 15, 2016

By: /s/ Michel Paradis
Counsel for Petitioner
11
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..
blf fCLASSFFFEE
(~TABLE
OF CONTENTS
(~
Table of Authorities ........................................................ ................................. iv
(~
Glossary of Terms ............................................................................................ vii
~Summary
(~
of Argun1ent ......................... ............................................................. J
Argument .............................................................................................................. 2
I.
(-tf? There is no plausible argument that the charges in this case
occurred in the context of hostilities ............ ........................... .............................. 2

II. (~ Al-Nash iri will suffer irreparable harm in the absence of
prompt judicial review ......................................................................................... 16
III.
(~This Court should reaffirm that habeas corpus remains
an essential safeguard against the unlawful assertion of military
j urisdiction ................................................... ........................................................ 21
A. (~Habeas corpus is the traditional vehicle for challenging military
j urisdiction, including the very challenge at issue here............ ...................... 22
B.
~ Councilman
abstention is inappl icable ............................................. 24
(~ The military commissions in Guantanamo neither need, nor warrant,

the creation of their own abstention doctrine .................................................. 26
C.
(~
Conclusion ........................................................................................................ 29
~Certificate
(~
of Sen'ice....................................................................................... 30
Cer-tificate of Compliance with Rule 32(a) ................................................... 31
~Statutory
& Regulatory Addendum ................................................................. I
111
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U! 4CbitSSIFEB:B
'
(~ TABLE
OF AUTHORITIES
*Authorities upon which Petitioner chiefly relies are_marked with an asterisk.
. Cases
*Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ........................... .4, 14, 17, 24, 27, 28
*Lee v. Madigan, 358 U.S . 228 (1959) ................................. :............................... 16

*Reid v. Covert, 354 U.S. 1 (19~7) ......................i ............... ......... ..... 10, 16, 17, 18
*The Protector, 19 U .S. 700. (J 870) .................... :......... ~ ... :.............................. 8, 10
Anderson v. Carter, 802 F.3d 4 (D:C. Cir.
20~5) .................................... ;............. 10
Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) .... :..................................... 27
Bas v. Tingy, 4 ball. 37 (1800) .............. .-..................................... ,.......................... 10
Bou~ediene
v. Bush, 553 U.S. 723 (2005) ....._...................._........ ;..................,. 22, 28
Bowen v. Georgetown University Hosp., 488 U .S. 204 (1988) . .... .:................,.... .4
Bridges v. Untied States, 346
"
U.S. 209 (I 95~~........ ~ ............................................ 16 _
Burlington
J:ruck Lines v. . United States, 371 tJ,.S. }56
(1962)
............................. 4
.
..
.
Clinton v.. Campbell, 203 F.3d J9.(D.C.'Cir. 200-0) .......:......::,........ :.. 7............. 12
Da
Costa v.. Laird,
471 F .2d1146 (2d
Cir. 1913)
... ;... ~ ... :.............
:.:
...............
IO, 11
.
.
l
.
.
.
.
.
Ex parte Milligan, 4 WalL 2 (1866) ...................... ~ .... :.: ... :..:~.................... :....... :.. 24 :
.
'
Exparte ,Quirin, 317 U.S. 1 (1942) ................ ~ ............... :............... ........... lO, 16, 24 :
Ford v. Unitecj States, 273 U.S. 593 ( 1927). ........ :~ .. ,'.. :.... ,., ... :........ :... :.-:........ :...... 17
.Grisham
v.
Hagan, 361 U.S. 27~ (1960) ...'. .. :....... :...... :........: ...-. ...........:, ..... ._ ......... l 8
Ha~dqn v._ fl.um~fe/d, 415 F.3d 33 (D.C. Cir. ioos ......:: ... :... :......:........... ~ ....:.... 24 ,
-Hamd~nv. United States, 696F.3d 1238 (D.C. Cir. 2012) .... :.............'........ ....... 27
Hennis v. Hemlfck, 666.F.Jd 270 (4th Cfr. 2012) ..................... ~: ............ :......... :.. 18
ln -':e Yamashita, 3.27 U.S. 1 (1946) ........ :...... ,_. ...... :...... ~...... ~.............. :,. .................. 23
John,stm v. Eis~ntrager, 339 U.S. 763 (1950) .:... '. ......... :......'. ....................... :....... 23
Kusperv.
P~ntikes, 4l4 U.S. 51 (1973)..... :.......... ............. ,. ...........::.:...... ~ ........... ~6
Madsen v. .Kinsella, 3'43 U:S. 34.1 (1952) ..................................... :... :.'. ....... .,........ .17
.
.
.
.
McE/roy v. Guagliardo, 36'1 U.S. 281, 286 (1960) .. :.......................................... .'!7
Morgan v. Mahoney, 50 MJ. _
633, 634 (A.F.C.C.A'. 19~9) ................................. 18
'
...
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Murray v. Haldeman, 16 MJ. 74. (C.M.A. 1983) . .......... :................................. 18

New v. Cohen, 129 F.3d 639 (D,.C. Cir. 1997) ......................... :............ ................ 25
Obaydullah v. Obama, 609 F.3d 444 (D.C. Cir. 201O) ..... .'............................ 24, 28
Ratzlafv. United States, 510 U.S. 135 (1994) ........ :........ :.... :................ ............... 15
Reinboldv. Evers, 187 F.3d 348 (4th Cir.1999) ................................................... 11
Schlesinger v. Councilman, 420 U.S. 738 (1975) .....:.:.............................. ."..... 22, 26
.
Strate v. A-1 Contractors, 520 U.S. 438 (1997) : ......: .........................~............... 25.
Swain v. Pressley, 430 U.S .. 372 (r977) ...................... :'. ...... :............................ :... 23
. I
The <;ase of Wolfe Tone, [1798.) 27 St. T~. 614 ..................................................... 2_3
United tates v. Ghai/ani, 73~ F.3d 29 (id Cir. 7013) ............ :.:... ........................ 6
United States v. Hamidullin, 2015 WL 4241397 (E.D.Va., Jul..13, 2015) ........... ,9
United States
v: Klintock, 5 Whea~. 144 (1820) ....: ...............:........................ :._...... 9 .
United Stale_s v. Mohammed, ei al., AE144

(Jul., 13, 2009) ..........................
:...... 27
.
.
. '
I
United.States v. SmJth,. 342 U.S. 225 (1952) .......,. ........ :.................. :.................... 16
Untie,d States v. Hamdan,
AEI 50 (2008): ................... :........................................ 13
Verqnoy. De Ange/is 'Coal, 41 F. Supp. 954 (M.D.Pa. 1.941) ............................... 8

.,
W.illenburg V: Neurauter, 48 f\:1.J. 152

.
Youngstown. S~eet &

Tu_be
.
. v.
U.S.
L.
10
~~de
c.c.A... A.F. f998) ...... :........................... :.;... 18
: 1
~awyer;
343
'
.
'
U.S .. 579 .(19S2)

................................
15
.
.
.
.
'
u.s.c. 16163 ........... :... :..................................

, .............................. :......... ;.......... 3
. .
.
10 U;S.C. 948a.... ;.............................................. ;.. ! ............................................ 17
ro u.s.c~ . 948d (2006) ..................................'..'.:.-. .......-. ... :...:.: ..... :..... : .................. n
10 U.S.C. . 9.SOp ......_...... :... .:._~.:'.: .................... :.. .':.:.. :.... ::-.:....... :............._............. 14 .
10. U:S.C. 950t

;_.'.........
.....................:........... .......... :.... 14
. ...... :........ .,..._. ..:..- ...... :... :......
.
..
,
20 u...s.c. .1 ~38
,; ... :............ :.:.. :.: ................................. ~ ... :...;.................................... 3
.
28
u.s.c. 2241 ................. ;.~ ...........:.'. ..-..:..~ .....:........ :...'. ...... :..... '. ......................... 21
38 u.s.c. 5302.A..................................
:: ............... ~ .. :.. :.... .............. ~ ................... ..... 3
,
5 U:S.C. 2'108 : ............................... .'............ .'...................... .,.._. ......, ........,..-.:........... 3
50 U.S.C: 1.544 ...................... :.................... !............ : ................................. : ......... 6

v
. \
.
. .
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Executive Materials
Address to a Joint Session ofCongress, 200 l \VL 11 03321
(Sept. 20, 20~ 1) .................................... ...... ....................................... ................ 2
Determination ofEnemy Belligerency and Military Detention,
2002 WL 34482990 (Jun. 8, 2002) ................................................................... 3
E.0. # 13269, 67 Fed. Reg. 45,28 7 (July 3, 2002) .................................................. 2
Letter ofthe President to the Speaker of the H ouse and the
President Pro Tempore ofthe Senate, 2 Pub. Papers 1464
(Aug. 21, 1998) ................................................................................................. 6
Nat' l Comm'n on Terrorist Attacks upon the U. S., The 911 I

Commission Report (2004) ....... ........................... ................ ..... .................... 6, 7
Proclamation #7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001) .................................. 2
Radio Address by the President to the Nation, 1995 WL
306814 (May 2 0, 1995) .................................................................................... 9
Miscellaneous
17 Car. I. c. 10 ........ ................................ ............. ................................................. 22

Al-Aulaqi v. Panetta, Case No. 12-cv-O l 192-RMC
(D.D.C., Jul. 18, 2012)....... .......................................................................... ..... S
Blacks Law Dictionary (9th Ed . 2009) ...............................................................,.14
DaHin H. Oaks, Habeas Corpus in the States 1776-1865,
32 U.Chi.L.Rev. 243 (1965) ...... , .................................. .................................. 23
Edward Jenks, The Prerogative Writs in English Law,
32 Yale L.J. 523 (1923) ........................................................... ...... ................. 22
Edward Jenks, The Story ofHabeas Co1pus~
13 L.Q.Rev. 64 ( 1902) .................................................................................... 22
R.J. Sharpe, The Law of Habeas Corpus (1990) ................................................ .. 22

Sir Edward Coke, Institutes ofthe Lawes ofEngland (1644) .............................. 22
The Federalist .. :.......... :....................... ................................ .......... ......................... 23
The Military Commissions Act o/2009: Overview and Legal
Issues, CRS R41163 (Apr. 2010) ........................... ........................................ 13
William Winthrop, Military Law & Precedents (2d ed. 1920) ..... ....................... 17
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UtlGLhSSIFID
(~GLOSSARY
(~
OF TERMS
2006 Act.. ................. Military Commissions Act of 2006, 120 Stat. 2600 (2006)
~ 2009 Act.. .................
Military Commissions Act of2009, 123 Stat. 2190 (2009)
(~
706 Report ......... RMC 706 Sanity Board Evaluation of Abd Al Rahim Hussayn
Muhammad Al Nashiri: ISN 10015 (Mar. 28, 2013)
(~
App ................................................ Petitioner's Appendix Vol. l (Nov. 20, 2015)
(-tf? App.II ......................................... Petitioner's Appendix Vol. Il (Nov. 20, 2015)

fl+) AUMF ......... Authorization for the Use of Military Force, 115 Stat. 224 (2001)
(~)
CMCR ............................................. U.S. Court of Military Commission Review
(~ Crosby Deel.
............... Declaration of Dr. Sondra Crosby, M. D. (Oct. 24, 2015)
~ Pet ........................................ Brief for Petitioner-Appellant,

(~)
dated Nov. 20, 201 5
Resp ................................................... Brief for Respondent, dated Dec. 28, 2015
(""' Supp .Pet . ............ Al-Nashiri v. Obama, et al., Case No. 08-1207, Supplemental
~Petition for a Writ of Habeas Corpus (D.D.C. May 15, 2014)
(~
UCMJ .................... Uniform Code of Military Justice, 10 U.S.C. 801, et seq.
\Vinthrop ............. William Winthrop, Military Law & Precedents (2d ed. 1920)
Yll
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(~SUMMARYOFARGUMENT
(~ The
government asks this Court to pretend that the world on September
IO and September 12, 2001 was the same. It was not. On September 11th, this
country was attacked. That attack compelled the political branches to take the
nation to war. The consequences of that decision have pervaded American life for
over a decade. The goverrunent attempts to minimize the singular historical,
political, and legal significance of September 11, 200 I, in order to justify its
litigation strategy in a capital case, whose underlying allegations did not occur in
the context of hostilities.
(~ Congress
reformed the military commission system in 2009 to limit
what was triable in Guantanamo. 10 U.S.C. 950p(c). It codjfied centuries of

constitutional law that protects the judicial power from encroactunent by limiting
military jurisdiction over non-service members to crimes committed in theaters of
actual hostilities. The duty to enforce that Limit on the Department of Defense's
power to remove a capital prosecution from the courts of law falls to this Court.
(~Without
this Court's intervention, Al-Nashiri will permanently lose his
right not to be tried by the military for offenses that are not triable by the military.
And he will needlessly endure an ad hoc capital trial in a "black site,'~ suffering
harms that prevailing on a post-trial appeal will not remedy.
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(~ARGUMENT
I.
~ THERE IS NO PLAUSIBLE ARGUMENT

THAT THE CHARGES IN THIS CASE
OCCURRED IN THE CONTEXT OF HOSTILITIES.
1.
(bl7 The government claims that a writ is inappropriate here because
the existence of hostilities prior to September 11, 2001, is an "open question."

Resp. 27. It plainly is not. Every court to have decided comparable issues,
including this Court, has marked the start of the present hostilities as September
11, 2001. Pet. 38. That unanimous judgment has been shared across the
government for obvious reasons.
(""' The President succinctly summarized the significance of September 11,
2001. "On September the 11th, enemies of freedom committed an act of war
against our country ... and night fell on a different world, a world where freedom
itself is under attack." Address to, a Joint Session of Congress, 200 L WL 1103321
(Sept. 20, 2001). He then identified Septernb~r 11, 2001, as precipitating a
"national emergency" that remains ongoing. Proclamation #7463, 66 Fed. Reg.
48,199 (Sept. 14, 2001 ); see also E.O. #13269, 67 Fed. Reg. 45,287 (July 3, 2002)
("designat[ing] as a period in which the Armed Forces of the United States were
engaged in armed conflict with a hostile foreign force the period beginning on
September 11, 200 l ").
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Office of Legal Counsel likewise looked to September 11, 200 l, as
the start of hostilities for a range of wartime policies. See, e.g., Determination of
Enemy Belligerency and Military Detention, 2002 WL 34482990 *7 (Jun. 8, 2002)

("As we have advised elsewhere, the Se ptember 11, 200 I _attacks o n th~ World
Trade Center and the Pentagon began an intemationaJ armed conflict between the
.
(
.
.
. .
Military Commissions to Try Terr_orists, 25 Op. 0.L.C. 238, 239 (2001) ("the
President may establish military commissio?S to try and punis4 terrorists
"
apprehended as part ofthe inv~stigation irito, or the military an d intelligence

.
. .
..
t
operations in response to, the September 11 attacks: '~)~

'(~. Every federal
statute pertaining
.
. "'
to hostilities, includiIJ.g the d~tfoition. of
''veteran," either takes effect on or treats its contemporary starting point as

September I 1, 200J.
See,
(defining "veteran", .inter alia,
.
. . e.g., 5 U.S.C.
.
. 2108(1)
. .
.
.
as someone who served "during the period beginning o n September 11, 200 I"); 10
\
'
"
.
'
'
<
~.S.C. . 16163(a~ (extending educati0n~l assistane tq servic~ i:n~~b.ers, who

served on or ~fter September I l, 2001); 20 U.S.C. I 138(4)(2) (benefits ~o
~
s~rvice-me~.bers on " active 9uty during a war or 9the r m ilitary ope~atiori or

1
nationa i emergency",
'
includ~ng active~ervice since S:~ptember 11,_2001); 38
U.S .C. 5302A(b) (d<?bt relief to individuals k.Hled "in a war or in combar-agai.nst
a hostile force during a period of hqsb lities after September 11 , 200 l .") .
. 3 .
. ..
1.J?!CL~1i.S SH?IED
.
"
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0t~@L1'tS 8IFIED
(-B'.) There are no comparable public acts from the political branches lending
that significance to the bombing of the USS COLE. To the contrary, the President
repeatedly reassured the public that "America is not at war." Pet. 2. This was not a
mere "suggest[ion]." Resp. 36. As detailed in the Glazier Amicus> no aspect of
military life or law has treated the COLE bombing as occurring in the context of
hostilities. It occurred when the Navy operated under peacetime rules of
engagement, under which neither al Qaeda or any other terrorist group had been
designated hostile. And there "was no change to this peacetime status as a result of
the Cole attack." Glazier Amicus, Ex. 2, at 4.
(~ The Departm~nt of Defense's
decision to violate a Congressional statute
does not cast this history or the meaning of federal law into doubt. Bowen v.
Georgetown Univer~ity Hosp., 488 U.S. 204, 213 (1988) ("Deference to what '
appears to be nothing more than an agency's convenient litigating position would

be entirely inappropriate."). This Court should not credit, !et alone give deference
to, "appellate counsel's post hoc rationalizations for agency action." Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962).
(~In fact, the government's arguments here contradict its position in every
other case involving comparable issues. In Hamdan, the Supreme Court did "not
question the Government's position that the war commenced with the events of
September 11 , 2001." Hamdan v. Rumsfeld, 548 U.S. 557, 599 n. 31 (2006)
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lH'fCL'\SSIFIED
(plurality op.). More recently, in AJ-Aulaqi v. Panetta, Case No. 12-cv-01192RMC (0.0.C., Jul. 18, 2012), a Bivens action involving a U.S. citizen kiJled in a
'
drone strike in Yemen, the government successfully moved to dismiss, arguing that
"the U.S. government has been engaged in an armed conflict against al-Qa'ida and
associated forces since 2001" and that Executive Branch designated Yemen as a
theaterofhostilities in 2010. Al-Aulaqi, Dkt. 18 at l-2 (D.D.C., Dec: 12, 2012).
When the plaintiff countered that the applicability of the law of war in Yemen
should be treated as
"mixed question of law and fact," government counsel
ridiculed him for "fail[ing] to cite a single United States court case that sets a
particular standard for when an anned conflict arises or ends" as a justiciable
question of fact because the recognition of"a 'state of war' is a 'political act[.]'"
Al-Aulaqui, Dkt. 23 at 20 (O.D.C., Mar. 7, 2013).
2.
(~ Notab ly,
for the purposes of this case, the government is
noncommittal about when hostilities began. At one point, it suggests a state of

hostilities has existed since 1992. Resp. 41. But its principal contention is that
hostilities have existed since "at least as" far back as 1998, following the Embassy
Bombings in Kenya and Tanzania. Id. at 27.
(~
In no other context has the government made this argument, not the least
to argue that the Embassy Bombings created a state of hostilities that necessitated
the resort to military conunissions. In fact, the only Guantanamo detainee ever
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UNCLASSIFIED
transferred to federal court for prosecution was charged and convicted of being a
ringleader of the Embassy Bombings. United States v. Ghailani, 733 F.3d 29 (2d
Cir. 2013). Like Al-Nashiri, this man was taken into custody by the CIA and, prior
to h!s transfer to the Southern District ofNew York, was categorized as a "HighValue Detainee. 1 ' The government offers no rationale for why hostilities
necessitates military commission prosecution here, but not the bombing it now
asks this Court to equate with Pearl Harbor.
(""' Of course, the Embassy Bombings were not Pearl Harbor. While the
President took discrete action against Afghanistan and Sudan, his report to
Congress concluded by saying, "The U.S. forces involved in these strikes have
completed their mission." Letter ofthe President to the Speaker of the House and
the President Pro Tempore of the Senate, 2 Pub. Papers 1464 (Aug. 21, 1998). Had
he not terminated hostilities in this way, had hostilities remained ongoing, he
woul d have needed to obtain Congressional authorization by the end of 1998. 50
U.S.C. 1544. He did not do so. Nor did he file any subsequent War Powers
Resolution reports relating to hostilities in Afghanistan, Sudan, or any terrorist
group. Nor did he change the military's standing rules of engagement.
(~)The
government claims on the strength of the 9/11 Commission Report
that President Clinton "considered military operations, in addition to an FBI

terrorism investigation, in response to the Cole attack.'' Resp. 42. But the
6
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contemplation of hostilities is far different from undertaking them. Under that

reasonjng, the United States is engaged in hostilities with Russia, China, North
Korea, Iran, and host of other nations and non-state actors.
(~
The reasons the 9/ 11 Commission gives for why hostilities were not
actuaJJy initiated prior to September 11, 2001 , demonstrates why courts require
bright lines fixing where and when the law of war applies. The 9/ 11 Commission
Report highlighted numerous political and geostrategic reasons not to escalate the
threat from Al-Qaeda to the level of hostilities before September 11, 200 l. Nat'l
Comm'n on Terrorist Attacks upon the U.S., The 9111 Commission Report 131-41
(2004). "Every official ... said that it was almost unthinkable, absent a provocation
such as 9/1 1, because of poor prospects for cooperation from Pakistan and other
nations and because they believed the public would not support it." Id. at 137. The
government asks this Court to forget
th~t
"[b]efore 9/11, al Qaeda and its affiliates
had killed fewer than 50 Americans, including the East Africa embassy bombi ngs
and th~ Cole attack. The U.S. government took the threat seriously, but not in the
sense of mustering anything like the kind of effort that would be gathered to
confront an enemy of the first, second, or even third rank." Id. at 340. This
remained true throughout the early Bush Administration. "President Bush told us
that before 9/ 11 there was an appetite in the government for killing Bin Ladin, not
for war." Id. at 209.
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UHCLASSfFIED
~
Most wars have been preceded by acts of violence that the political
branches deemed insufficient to warrant the invocation of the law of war. Fort
Sumter, for example, was hardly the first anned provocation for the Civil War.
" Acts of hostility by the insurgents occurred at periods so various, and of such
different degrees of importance, and in parts of the country so remote from each
other, both at the commencement and the close of the late civil war, that it would
be difficu lt, if not impossible, to say on wh<i.t precise day it began or tenninated."
The Protector, 79 U.S. 700, 701-02 (1870). Yet, the law of war did not apply until
the President determined that escalating the conflict's status - and all it enta iled was in the nation's interest. Id.
(~)Likewise, only a month before Pearl Harbor, a di strict court held that an
Italian national could not be deemed an "enemy alien" solely on the ground that
the United States and Italy were international adversaries. Verano v. De Ange/is
Coal, 41 F.Supp. 954 (M.D.Pa. 1941). Instead, "there must be some determination
by the political department of the government evidencing the existence" of
hostilities. Id. at 955. Verano reiterated a settled rule and was one of numerous
authorities relied upon by the Office of Legal Counsel after September 11, 2001, to
conclude that "it is difficult to articulate any broadly applicable 'test' for
determining whether a war exists [because] the courts have quite properly
8
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concluded that that question (and thus the triggering
~fthe la~s ~f war) is one for
the political branches." 25 Op. 0.L.C. at 261.

~
The government attempts to distinguish the COLE bombing on the

.
.
ground that the perpetrators used "large bombs.'' Resp. 32. But so did Timothy
.
.
McVeigh. 1 So did the Ku Klux Klan. 'Both believed themselves to be .3:~ "war," but
the Uniteq States never bought into these ''wars."2 The law presumes the.n~tion is
at peace absent the affi1mative choice to undertake
. the law
. of war's trade-offs by
those who are politically ac.countable ~or the consequences. And c;mly on
September 11 ; 200 I, did this colintry deem those trade-offs worthwhile.
.
'
. '
...
.
.
.
(~
3.
"
The gov.e mment cl~ims that a contemporaneous publi_c ~ct by the
political branches is not a ''.necessary cond1tion " for hostilitie~ toexist. Resp. 36.
But that is e.iactly what the law req'uires. Given the ambiguity ~ver when violence
.'
rises to a level .sufficient

to implicate
the
law of war, "It is ..~e.cess'Czry,
therefore, t<;>
"
.
.
.
.
...
;.
' 1
..(~
In 'fac~, the first public use of the phrase "war on terrorism" by a President .
prior t~ 'Septemb~r l 1, iOOl, was after the Oklahoma City bombing. Radio Address
by the President to the .Nation, 1995 WL .306814 (May 20, 199S) ("We mustn't let.
our country fight the war against terrori~m i!l-armed or ill:;-prepared.").
Supreme Court has ~lways rejec(~d the notion thatnon-st~te actors pan self-
deputize arid effectively legitimize viol~r:ice, under international law. Uriit~d S.tq(es
v. Klintock, 5 Wheat.
144, 149-:.50 {i820).
And for good reason. in a coritextof
.
.
hostilities, perpetrators of violence are immune from all prosecution if they. conduct
their a.t~cks as law.f\ll combatants. See,'e.g , United States v. Hamidullin, 2015 WL
4241397 at *14 (E.D.Va., Jul. 13, 1015).
2
The
ID G
1
. . ..
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refer to some public act of the political departments of the govemmen~ to fix the
dates." The Protector, 79 U.S. at 702 (emphasis added); Da Costa v. Uiird, 471
.
F.2d 1146, 1155. (2d Cir. 1973) (courts cannot decide

hostilities exist "without an
.
initia l policy determination of a
~ind
clearly for nonj,udicial. discretion") . .

'
'.
(~
Political judgment is also ne~ssary to determine the geographical scope
.
. .
of hostilities. For example,
no
()ne
disputed
that
hostilities ,existed
in Korea, when
'
. .
the murders a~ issue in Reid v. C;vert, 35~ U.s. 1 (I ~56), were committed. The
dispositive fact
was that "neither Jap~I nor Great Britain cold p~operly be said to
.
~
be an area where active.hostilities wefe uncf~r way ~t the t.ime [the petiti()ners]
. committed their offenses or at the time .they were tried." 1(1. at 33"- 34. The
government _seeks contrary support from Quirin because the petitioners in that case
.
.
.
.
were captured iR. the United state~. Resp: 40. But during WWII, the en~ire seaboard
.
was divided -int~ mili~ry.districts.

.
lnde~,. th~ charge ~as .that the petitioner~
."p~ssed our ~ilitary and .naval lines and def~pses ot went behind those 'lines, .in .
civilian dress and ~ith ho~tile purpose." Ex pane Quirin, ~17 U.S. l , 38 (1942).
(:ff? Moreover, unlike the "general wa.(' declared in WWII, the war on terror
.
is "a.limited war; limited in place, in o_

bje?ts, and in time." Bas v. Tingy, 4 Dall. 37,
.
43 (1'800}; .Anderson
(D.C. Cir.. 201 S) (characterizing
it
. v: Carter, 802 .F.3d 4>8-9
.
. . .
...
as an "imperfe~t war" under Bas). "Whenever hostilities have extende~ to a new

.
.
.
.
region, the President has issued War Powers Resolution reports pursuant to the
. :10 .
.
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, '
..
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express terms and accountability mechanisms of the AUMF. Those reports define
the temporal and geographic scope of "hostilities," as Congress intended when it
made the AUMF subordinate to the War Powers Resolution. AUMF 2(b)(l).
(~The
government caricatures our argument by saying that if political
action were necessary, then neither Septemper 11, 2001, nor Pearl Harbor would
be governed by the law of war, since they preceded action by the President and
Congress. Resp. 38. But this is a straw man. Whether it was Pearl Harbor,
September 11, 2001, Fort Sumter, or the Gulf of Tonkin Incident, the crucial
question in every case is the status the political branches give to world events when
they happen. At a minimum, the legal status of events occurring during a particular
President's term of office or a particular session of Congress must be determined
by the officials elected to serve at that time. A constitutional term of office means
nothing if each new party in power can revise the past and undo the judgments of
its predecessors nunc pro tune. Da Costa, 471 F.2d at 1155. The government
cannot "rewrite history, changing the record in Orwellian fashion to pretend that .it
reached some other conclusion." Reinboldv. Evers, 187 F.3d 348, 360 (4th
Cir.1999) (quotations omitted).
4.
(-B? The government insists that the existence of hostilities, such that
the law of war applies, should instead be treated solely as a question of fact for the
military jury in Guantanamo to decide. Resp. 27. Leaving aside the doubtful
11 .
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question of how a jury would know "what standards to apply to those facts,"
Clinton v. Campbell, 203 F.3d 19, 26 (D.C. Cir. 2000), that argument requires this
Court to conclude that Congress delegated to the Secretary of Defense's Office the
power to declare its own wars, subject only to the concurrence of the mid-level
military officers it has designated to decide the guilt of a criminal accused. The
government offers no authority or reason that such a consequential delegation of
authority was intended by Congress or would be constitutional.3
(-tf) The government defends its reading of the 2009 Act on the basis of the
CMCR's 2011 decision in Bahlul. Resp. 28-29. But the existence ofhostilities was
neither contested nor briefed in the Bahlul case. The only military commission in
(~Nor is the government correct in its characterization of the law appJicable in
international criminal tribunals. Resp. 30..Contrary to the government 's suggestion,

those tribunals' statutes define the temporal scope of the relevant hostilities,
irrespective of whatever facts the tribunals may find. For example, even though
sectarian vioJence in the former Yugoslavia began in 1990, the Security Council
limited the Yugoslavia Tribunal's jurisdiction to "violations of international
humanitarian law committed in the territory of the former Yugoslavia between 1
J a.nuary J 991 and a date to be determined by the Security Council upon.the
restoration of peace." Statute of the International Tribunal for the Former
Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in
32 I.L.M. 1203, 1204. In other words, despite their apparent treatment of hostilities
as a question of fact in particular cases, international criminal tribunals operate
within a window oftime and place that has been politically determined to qualify
as a conflict subject to the law of war, irrespective of the facts on the ground. See
also Prosecutor v. Boskoski & Tarculovski, 2005 WL 2483014 (I.C.T.Y. App. Ch.,
22 JuJ. 2005) (despite ten years of"peaceful" independence, the Security Council
had not yet declared the conflict over).
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which the issue was litigated was United States v. Hamdan, AEJ 50, at 5 (2008), in
which the commission weighed the significance Congress' grant of jurisdiction
over offenses "committed before, on, or after September 11, 200 l." 10 U.S.C.
948d (2006). It concluded, not that hostilities existed since "at least" 1998, but that
"[m]embership jn a conspiracy that planned and carried out the attacks of
September 11, 200 1 will be deemed to be in violation of the law of war;
membership in a conspiracy that planned or carried out other attacks Jong before
that date and unrelated to hostilities will not." Id.
~
Moreover, both Hamdan and Bahlul were tried under the 2006 Act. The
"hostilities element at issue derived from the Manual for Military Commissions,
I
not a statute. Section 950p(c), by contrast, was added as part of the 2009 Act's
reforms. Regardless of whether the Manual makes hostilities an element o f the
offenses, and thereby punishable by military commission, Congress determined
that it also needed to be a limit on what was "triable." As the Congressional
Research Service explained, this amendment echoed Hamdan as well as the
traditional rule that the law of war "has not been applied ... to conduct that
preceded the outbreak of hostilities(.]" The Military Commissions Act of2009:
Overview and Legal Issues, CRS R41163, 14-15 (Apr. 2010).

~The
government's "hostilities element" argument is also irreconcilable
with the text of the 2009 Act. If Congress wanted hostilities to be just an element
13
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lJNCLASSIFIEO
of the offenses, it.had far more direct means of doi~g so . It couJd have~ for
example, made a nexus to hostilities
. an element of each offense. [nstead,
. \Congress
/
codified a standalone provision, which states in no uncertain terms that an offense

)
is "triable ... only if the offense is co~m~tted in the context of and associated with
}10siiljtie~.,, 10 U.S.C. 950p(c} (emphasis a~ded). Under any ordinary

understandir:ig, ''.triable" means "[sJubject or liable to ju<;ticial examination and
trial." Blacks Law Dictionary
(9th Ed.
2009); see also Hamdan, 548 U.S. at 600
.
.
(plurality op.) ("the deficiencies in the tim~ arid place allegations also underscore indeed are symptomatic of- the most serio~s defect of this charge: The offense it
.'
.. alleges is not triable by law-of-war military commission."). Congress' use of the

word "triable" in 950p(c) stands in m~ked contrast to its .use _of"punishable"_
.
elsewhere in the statute. What is or is not "triable" is.necessarily a threshold .
'
'
question of.~hat may be tried and that question must be answered before any trial
occurs in order to be meartingfol. . . .'
. . . .
'
...
(~. M~re~ver,
many of the offerist;s .enumerate:d in 9S0t alrea.dy mak~ a
.
.
.
. .
..
..
.
.
'
'
ncx~s to hostilities an-~le~ent of the. charge. The "protect~d" stat~s ~f th~ victi.m
under 9SOt( l) (Murder of Protect~d 'Person~) is defined
as "protected,, under the
.
.
.
IaV: of war.
Id. 95'Qp(a)(2). For 950t(l5) (Murder in VioJation of the Law 9f
War), a "violation -of the la'Y of war" is
an express element of the offense. The
government n~ver explains why_Cogress wou~d intend 950p(c) to do n?thing

14 . .
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more than add a surplus "hostilities element" into these offenses. Cf Ratz/a/v.
United States, 510 U.S. 135, 140-141 (1994): But what is even more puzzling is
that adding its "hostilities element to offenses such. as 950t(3 l) (Contempt) and
Its theory of the
950t(32) (Perjury & Obstructi~n ofJustice) is nonsensical.

.
.statute, therefore,. requires this Court to read an additional "hostilities element'' into
a subs.e t of thirty-two statutory offenses with.out any rule for picking
which
, .
,.
offenses require it.

~
5.
If anyone is seeking to "upend the system that Congress and the
Executive jointly created," it is the Depa,rtment of.Defense. Resp. 21. Tpis case
only seeks to eT).force the limits that Congress enacted to er:isure military
.
. .
commissions confonned to lorig-sta~ding military and cqnstitutional Jaw. This is,
therefore, a paradigm "Category_-3" Youngstown case, where the Executive!s

.
p9wer is at its "lowest ~bb>'
'
Youngstow~ Sheet cf/c. 'f'ube v. Sawyer, 343 U ..S. 579,
'
"
....
638 (1.-952) (Jackson,,~. concurring). Like.Hamdan, -l ike Y.oungstown.?.this Court

'
.has
. .
'
'
...__.,
. .
aduty to ~nror~e the .bound::U.ies.iliat congi.es~ has set,''-for-wri~.~ 1s at stake. is

..
.
_the equilibrium esta~Pshed by our constitutional system:,, Id.
.
.
.
\
.. ...
(~ Here~ the Depart.ment of De.feiise is cl~imin_g t'hat :its post hoc judgment
. . ",
. .
. .
. . . . .. . .
.. .
.
. ..
~
;"
that hostilit'ies should have existed ~vo decades ago empowers it to ~emov.e _a
federal prosecution from New York to a military commission
. in Guan~narpo. .Not
~
only is this.'~Orwellian," it is contrary to the settled rule that where a.law varies
15.
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criminal procedure on the basis of hostilities, the scope of those hostilities is given
its narrowest possible construction. Bridges v. Untied States, 346 U.S. 209, 216-17
( 1953); United States v. Smith, 342 U.S. 225, 229 (1952). Indeed, hostilities is
construed especially strictly "in the setting of a grant of power to military tribunals
to try people for capital offenses." Lee v. Madigan, 358 U.S. 228, 231 (1959); see
also Reid, 354 U.S. at 35 ("The exigencies which have required military ru le on the
battlefront are not present in areas where no conflict exists."). The shear breadth
and indeterminacy of the govenunent's argument, therefore, cries out for this
Court's prompt review.
II.
(~ AL-NASHIRI WILL SUFFER IRREPARABLE

HARM IN THE ABSENCE OF PROMPT
JUDICIAL REVIE\V.
The government concedes that interlocutory review is appropriate, either
via mandamus or habeas, where a petitioner assens a "right not to be tried." R,esp.
24. It simply contends that AI-Nashiri has not asserted such a right because the
only claim suitable for such interlocutory review is a challenge to personal
jurisdiction. Id.
~
This premise is mistaken. Military commission jurisdiction turns on the
status of the offense, not the offender. 25 Op. O.L.C. at 254. If the allegations
levied are not "triable by military tribunal," Quirin 317 U.S. at 29, then the
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petitioner has a right not to be so tried. In the cases the government characterizes
as involving jurisdiction over the "individua l defendant", such as Reid and
lvfcElroy, Resp. 24, there was no que5tion about the status of the accused. The
Supreme Court had already held that non-service members were triable for
offenses committed in areas of hostilities. Madsen v. I(insella, 343 U.S. 341
(1952). What made the assertion of military jurisdiction unconstitutional was the
fact that the crimes at issue were committ.ed outside theaters of "active hostilities.~
Reid;354 U.S. a~ 33-34; McElroy v. Guagliardo, 361 U.s.~2s1, 286 ( 1960).
'
(-HJ A law-of-war military commission's s~~jcct-ma~t~r jurisdiction is

limited fo offenses committed-in the context' of a war because its jurisdiction only
reaches offenses subject to that law. This was reaffirmed by the Supreme Court in
H'amdarz. an9 by Winthrop. Hamdan, .54.8 U.S. at 607_ (plurality op.) (emphasis in
original); id. at 683-84 (Thomas, J., dissenting); William Wi.nthrop, Military Law
& Prece,dents' . 836-3.7 (2d ed. l920)
., ,'App. 103-04. And Copgress rea:f finne.d this
wh~n . it defined.hostilities as "a conflic.t subjec.t to the law o~war." ~O U.S.C.

'
'
. .
. :
. .; . . .
' . .
94 8a(9). Whether an act i.s ''subject.to"the law of war" literally asks whether it is
..
.
.
.
'
' ,
~
within the law of wa'r's jurisc;iiction,
a
detenninatio
"necessarily
preliminary
to
the
.
,. .'
trial." Ford v. .United States, 273 U.S. 593, <?06 (I ~27) ..
(~ Writs ar~ routinely u~ed in the military justic~ system to decide

.
comparable claims. See, e.g., Willenburg v. Neurauter, 48 M:J. 152 (C.A.A.F .
. 17
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t q9 1r1pp
VJ. -,\,,,_....L.JC)..UU.1..l .L..L.JJ.-1
1998) (reviewing on mandamus whether a service-member recalled to active duty

could be tried by court-martial); Murray v. Haldeman, 16 M.J. 74, 77 (C.M.A.
1983) (agreeing that the military appellate courts should not be "bashful" about
reviewingjurisdictional challenges via writ); Morgan v. Mahoney, 50 M.J. 633,
634 (A.F.C.C.A. 1999) ("While this issue may not arise in many future cases, it is
one of first impression and involves the military's right to try the petitioner."). And
as explained on pages 22-24 below, pre-trial review ofthis kind of claim is a
traditional function of habeas corpus, particularly when the military is seeking to
impose the death penalty. Reid, 354 U.S. at 77 (Harlan, J., concurring); Grisham v.
Hagan, 361 U.S. 278, 280 (1 960).
(~
The government attempts to minimize the relevance of the death
penalty in the calculus of irreparable harm on the strength of Hennis v. Hemlick,

666 F.3d 270 (4th Cir. 2012). Resp. 61. It f~i ls to mention, however, that the
defendant ih Hennis had been given the opportunity to appeal the jurisdiction of his
court-martial pre-trial pursuant to a writ in the Army Court of Criminal Appeals.
Id. at 27 l. That court, in turn, enjoined his court-martial proceedings while it
resolved the merits of his challenge. And though it ultimately rejected hi.s
interlocutory challenge on the merits, it kept its stay in place until the military's
highest cowt decided whether to grant his petition for review. Id. at 272.
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The government also fails to rebut Al-Nashiri's particularized
showing of the irreparable harms he will suffer if put through the motions of a
gratuitous capital trial in Guantanamo. This Court has uncontroverted findings that
Al-Nashiri suffers from Posttraumatic Stress Disorder and Major Depressive
Disorder. 706 Report at 33. It also has sworn expert testimony that a capital trial in
Guantanamo under the military commissions' unpredictable procedures will be
stressful on a different order of magnitude [than an ordinary capital trial] and,
given Mr. Al-Nashiri's situation and fragile psychological state induced by torture,
exponentially more harmful.'' Crosby Deel. if26.
~wu~The
likelihood and severity of these
irreparable harms should not be surprising. The government disappeared this man
into black sites, shaved the hair from every inch of his body, folded him into a
"small box," drowned him, threatened to bore into his skull with a power drill, and
regularly stowed him in a coffin. Despite clear signs of mental disability and his
immediate cooperation, it put him through a systematic campaign of physical,
mental, and sexual torture. Its express purpose was to induce a state of "learned
helplessness," in the belief that it could break him like a dog in a laboratory
experimen.t. SSCI Report at 64 n. 317. It even went so far as to keep him
"kenneled, .. Id. at 50, n.240, and chained to the wall and ceiling. 706 Report at 16.
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The government must accept the
consequences of achieving its objective.
d. He is incapable of
forming trusting relationships with others, including doctors and lawyers. Crosby
Deel.~
14. He has lost the basic coping skills an ordinary defendant could rely
upon to meaningfully cooperate in his defense. Id. ,24. And the trial's very
location in Guantanamo presents persistent visual and audible triggers for
traumatic stress events. Id. ill 7. After spending over a decade trying to render AlNashiri psychologically "helpless," the government cannot turn around and
represent to this Court that putting him through a capital trial, conducted in one of
the very "black sites" into which it had disappeared him~ presents nothing more
than the Hinevitable incidents of any criminal trial." Resp. 26.
(U//FOUO) Further exacerbating these harms is the lack of adequate mental

health care in Guantanamo. 706 Report, at 26; Crosby Deel. i]ifl6, 25. AL-Nashiri
has no access to the mental health resources that would ordinarily be available to a
defendant in "any capital trial." In fact, as of December 2015, the Department of
Defense has banned psychologists from treating detainees in Guantanamo in

response to new ethics rules from the American Psychological Association. James
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Risen, Pentagon Curbs Use of Psychologists with Guantanamo Detainees, New
,.
York Times, atA14 (Dec. 31, 2015). Contrary to the government's suggestion that
the " psychological stressors" in Guantanamo are the same as they would be in the
Southern
District of New York, Resp. 26, no comparable
ban on me.n.tal health
.
. .
I
professionals has been instated ~y the Bureau
of Prisons. Thus, quite unlike an
."ordinary" capi tal case, Al-Nashiri faces such atria~ without any meaningful
access to approp~ia~e health c~e.

'
.
be clear, Al-Nashiri does not argue that he cannot be made to face a
(~To
capital tri.al.. His only Claim is that, if he is .correct. on the "\merits,

facing a mock
.
death
penalty. tri~l
before an .ad hpc milita_ry commission
cause
.
.
. in .Guantanamo will
. .
irreparable harm that simply obtaining
reversal on appeal will
All he
.
. not remedy.
.
asks
n<;>t biind itsel
ftothe.actual. . hain)s
he fac~s
- is. .that this Court
.
.
.
. . in this particular
.
.
death .pen~Ity
prpsec~tion,
and in this
.
.
- conducted under these .rules.;
.
. . piace.
.
'
III.
-~ THIS 'C OURT .'SHOULD REAFFIRM ,TfIAT

. HAB'EAS
CORPUS
. REMAINS
. AN ESSENTIAL
.
.
.
.
.. t'
.
.
SAFEGUARD
AGAINST : THE UNLAWF UL
..
,
..... .
AS$~~TION
oF .M.JLlTARY JURJSJ>ICTION.
. .
(t:r) The gov,effiment .concl uae~. its brief 'With two ar~m~nts that a1m to s.trip
,
Al-Nashiri
'
.
.
'
',
of the-ability to. seek. rehte,4;ies. through habeas-.corpus:

It .claims th~t
28
.
.
.
u.S.c. 2241(e)(2) stripped ,t~e d~stri~t ~ourt of j_urisdiction over Al-Nashiri's

claim becausethallenges to the military' s assertion ~f juris<;ti ctio~ do "n0t sound.i'n
21
.-..
zVJ.:"fV.&...>..C-..V,_,,J.J.
n 201 ,:., 0 rlri5
.l..J..JJJ
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habeas." Resp. 59-60. And it claims that~ even if there is habeas jurisdiction, this
Court should nevertheless extend the abstention doctrine articulated in Schlesinger
v. Councilman, 420 U.S. 738 (1975), to disclaim that jurisdiction. Neither
argument bas any legal support and both ask this Court to accomplish through
judicial c-0nstruction, what the Supreme Court held to be unconstitutional in
Boumediene v. Bush, 553 U.S. 723 (2005).

A. (.-.,, Habeas corpus is the fraditional vehicle for challenging military
jurisdiction, including the very challenge at issue here.
(~The
argu ment that Al-Nashiri's claim is barred because it does " not
sound in habeas" is contradicted by centuries of precedent. At British common

law, habeas was the principal procedural vehicle for obtaining judicial review over
an inferior tribunal's assertion of jurisdiction. According to a leading historian,
" [t]here can be little doubt ... that habeas corpus in its cum cause form was being
used for [testing the jurisdiction of the tribunal] independently of privilege or
certiorari by the mid-fifteenth century.'' R.J. Sharpe, The Law ofHabeas Corpus 5
( 1990). Coke emphasized the K ings Bench's use of the writ to oversee inferior
courts and "keep them within their proper j urisdiction ." Coke, 4 Inst. 1170. In fact,
the writ was so indispensable for checking the jurisdiction of executive tribunals
that Parliament guaranteed it for that purpose in the Act for the Abolition of the
Court of Star Chamber. 17 Car. I. c. I 0 6.
22
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the United States, Chief Justice Burger concluded that inquiring into
"whether a committing court had proper jurisdiction" is at the center of habeas'

constitutional core. Swain v. Pressley, 430 U.S. 372, 3 85 ( 1977) (Burger, C.J.,
concurring). In The Federalist, Hamilton celebrated habeas as the traditional
means of securing against "arbitrary methods of prosecuting pretended offenses."
The Federalist No. 83 (Alexander Hamilton). And in the Nineteenth century, the
writ's predominate usage was for raising pre-trial challenges to jurisdiction. Dallin
H. Oaks, Habeas Corpus in the States 1776-1865, 32 U. Chi. L. Rev. 243, 258
(1965) ("[M]ost petitions involving criminal commitments preceded conviction. In
fact, many were submitted immediately upon the defendant's being arrested and
before he was even brought before a j udicial officer for formal commitment.").
("' The writ has played an especially important role in ensuring the legality
~
of military j urisdiction. In re Yamashita, 327 U.S. l , 9 (1946) ("[T]he Executive

branch of the government could not, unless there was suspension of the writ,
withdraw from the courts the duty and power to make such inquiry into the
authority of the commission as may b~ made by habeas corpus. 1 ,); Johnson v.
Eisentrager, 339 U.S . 763, 775 (1950) (even during declared wars, an individual
can challenge "the existence of a state of war and whether he is an alien enemy.").
This was true in the United Kingdom at the time of the Founding. See The Case of
Wolfe Tone, [1798] 27 St. Tr. 614. It was true during the Civil War. Ex parte
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Milligan, 4 Wall. 2, 123-24 (1866). It was true at the peak of World War II. Quirin,
\.
3 L7 U.S. at 25. And it was true a decade ago when the Supreme Court enjoined
military commission proceedings in Guantanamo in the face of habeas-stripping

statute. Hamdan, 548 U.S. at 57284.
B. (? ~ouncilman abstention
(Ho) The government's
i~ io~pplicable.
effort to achieve the same jurisdiction stripping via
.
.--Councilman abstention is equally unsupportable. Councilman abstention W<l:5
created in the 1970s to prevent service~members. from collaterally attacking the

military's internal discipli naiy proceedings. The goveml'T1:erit claim_s that this is an
.
"unduly narrow" r~ading of Councilman. Resp. 51. But that is what this Court held
'
'
'
-~ in Hamdan_v. Rwrisfeld, 415 F.3d 33. 3(;) (D.C. C~. 2005),
and Obaydu(lah v.
Obama, 609 F.3.d 444, 448 (D.C. Cir.. 20YO): Th~ gov~mtneni.does not even cite
.
these cases, let

explain why
Jhey
were :wrong
.. afone
. .
.
..
. or distinguishable.
.
.-
("" It instead relies

upon the fact that.the
S~preme Couct noted "the
.
.
.. .
possi.bili~ that abstention may be approp~iate .in same cases [ w_
he're a detainee]
of ongoing military cpmmiss~on prnceeclings.;, Resp. 5152 (quoting

Hamdan, s4s U.S. a\ 590). But.it omit_s the. end of tnis qu~tatipn,
~here'in the
.
seek(sJ review
'
'
; ' I :
:,
'
'
S uJ?r~me C~urt clarifie~ that it-was refen~ng to.truly e:X:traor~inary cases, "such as
.
military com.missions convened on the battlefield.!' Id: 'fhe military commission
.
.
.
'
24
.,>
..
. .' .
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ut+CbArSSIFfED
here, by contrast, was not convened on the battlefield, the accused was not
captured on the battlefield, and the precise claim at issue is that the conduct the
military commission is seeking to try did not occur on a battlefield.
(-8:1 Moreover, even if Councilman or some analogous doctrine applied to

military commissions generalJy, abstention doctrines have no relevance in cases
such as this one, where the petitioner "raise[ s] substantial arguments denying the
right of the military to try them at all." New v. Cohen, 129 F.3d 639, 644 (D.C. Cir.
1997). Al-Nashiri's single claim is the military has no authority to try offenses,
whose relevant times, persons, places, and events were not governed by th~ law of
war. That claim is so "substantial" that two of the signers of the Generals &
Admirals Amicus supporting his argument were the Navy's Judge Advocates
General from 1997 to 2002.
(~
Al-Nashiri's claim only asks whether an inferior tribunal can apply its
governing law in the first p lace. "When, as in this case, it is plain" that the law of
war does not apply, "it will be equally evident that [military commissions] lack
adjudicatory authority over disputes arising from such conduct. .. . Therefore,
when [military commission] jurisdiction over an action such as this one is
challenged in federal court, the otheiwise applicable exhaustion requirement ...
must give way, for it would serve no purpose other than delay." Strate v. A-I
Contractors, 520 U.S. 438, 459 n.14 (1997).
25
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L1!CL/,SSI FH3D
C.
The military commissions in Guantanamo neither need, nor

warrant, che creation of their own abstention doctrine.
(~
The government has given this Coun no good reason to fashion a
doctrine of absolute abstention for military commissions that outweighs ''the delay
and expense to which application of the abstention doctrine inev itably gives rise."
Kusper v. Pontikes, 414 U.S. 51, 54 (1973) (internal quotations omitted). Unlike
the court-martial system, the military commissions in Guantanamo arc not

"separate and apart from ... our federal judicial establishment." Councilman, 420
U.S. at 756 (quotations omitted). Like the Tax Court, the 2009 Act created a
system of pennanent trial chambers that operate under this Court's direct appelJate
jurisdiction and in parallel to the District Courts. Just as Younger abstention
reflects comity toward the interests of federa lism, Councilman only makes sense
insofar is it protects the military's need to govern itself as a "a specialized society
separate from civilian society." Id. at 757. No comity interest is served by applying
such a doctrine here. To the contrary, the federal courts have a duty to check
against the significant danger posed by these tribunals' tendency to encroach upon
the j udicial power over capital trials. Reid, 354 U.S. at 39-40.
("'*' There is also no reason to believe that the military commission system
"generally is adequate lo and responsibly will perform its assigned task." Resp. 46
(quoting Councilman, 420 U.S. at 758). When the Supreme Coun drew that
26
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conclusion about the court-martial system, it had track-record of regular

performance that spanned twenty-five years and thousands of cases. The military
commissions in Guantanamo have no such track record and by every relevant
measure, still "bear insufficient conceptual similarity to state courts to warrant
invocation of abstention principles." Hamdan , 548 U.S. at 587-88.
~T he
mil itary commissions have yet to result in a single conviction that
has survived appellate review. Bahlul v. United States, 767 F.3d I, 27-31 (O.C.
Cir. 2014) (en bane decision unanimously vacating defendant's conviction of two
charges on plain error review); Hamdan v. United States, 696 F.3d I 238 (D.C. Cir.
2012) (unanimously vacating the conviction that had survived every challenge
within the military comm ission system). And their rules, composition, and
structure remain in such constant flux that the mi litary j udge presidi ng over the
September 11th case remarked that it was "a system in which uncertainty is the
nonn and where the rules appear random and indiscriminate." United States v.
Mohammed. et al., AE144, at 3 (Jul. 13, 2009).
(~ This
legal uncertainty is exacerbated by the lack of any speedy trial
requ irements, which might otherwise ensure prompt judicial review. Al-Nashiri
has been in custody for fo urteen years. This case has been pending since 2008, not
the least because the Convening Authority is free to convene, disband, and
reconvene commissions together at will. Supp.Pet. 14. Based on the most
27
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I Th I Q
.._,,.1, "'-'"'-'"
At
Page 36 of 46
C c zr rrn
1UU.LJ. .A.LJl.J
optimistic estimates, Al-Nashiri 's trial will not begin until 2018. Vvnatever
relevance the bare prospect of post-trial review has in deciding whether the
necessary conditions for abstention exist, the prospect of that review cannot be
sufficient where, as here, "the timing of [post-trial review] is left entirely to [the
Convening Authority's] discretion(.)" Hamdan, 548 U.S. at 616. Given the pace of
prior cases, failing to act today will ensure that judicial review of the single
question of law presented here will remain unresolved for a decade.
~
No one - not the accused, not the government, not the public, not the
survivors of those who served on the USS COLE, not those who care about the
reputation of the American judicial system - benefi.ts from a generation of
uncertainty on a question as fundamental as when America is at war. "Although
there may be circumstances where a district court could, merely for reasons of
'economy of time and effort' , ... stay a detainee's habeas petition in anticipation of
an imminent military corrunission proceeding, continuing to do so after the passage
of time involved here and with no end in sight is insupportable in view of the
Supreme Court's instruction that 'the costs of delay can no longer be borne by
those who are held in custody{.]"' Obaydullah,609 F.3d at 449 (quoting, inter
alia, Boumediene, 553 U.S. at 794-95).
28
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~ CONCLUSION
(-Ho) The use of military commissions has mutated from individual

proceedings convened on or near the banle:field to a permanent court system in
which the bulk of the prosecution's evidence will be hearsay, where secrecy is the
nonn, where the public,s access is limited, where there is no speedy trial, and
where even an acqu ittal may not result in re]ease. Nothing in the Constitution
contemplates such trial chambers and this Court shouJd not immunize them from
the modest pretrial review sought here.
This Court should enjoin the military commission convened by Convening

Order # 11 -02, either via habeas or mandamus, because it is exceeding the limits
that Congress has duly enacted on what is "triable" by such a tribunal.
Respectfully submitted,
Isl Michel Paradis

Michel Paradis
U.S. Department of Defense
Military Commission Defense Organization
Washington, DC 20301
1. 703.696.9490 x 115
michel.paradis@osd.mil
Richard Kam.men
Kamrnen & Moudy
135 N. Permsylvania St., Suite 1175
Indianapolis, IN 46204
Counsel for Petitioner-Appeilant
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~iCL"1SSWJED
~CERTIFICATE
OF SERVICE
(~ I hereby certify that on January 15, 2016, copies of the foregoing were
delivered to the Court Security Officer for fili ng in this Court and service on all
necessary parties pursuant to the Amended Protective Order for Habeas Cases
Involving Top Secret/Sensitive Compartmented Information and Procedures for
Counsel Access to Detainees at the United States Naval Station
in Guantanamo
Bay, Cuba, in Habeas Cases Involving Top Secret/Sensitive Compartmented

Information, Case Nos. 08-MC-442-TFH (Dkt. Nos. 1481 and 1496) & 08-cv01207-RJR (Dkt. Nos. 79 & .80) (D.D.C. 9 January 2009).
By: /s/ Michel Paradis

Michel Paradis
U.S. Department of Defense
Military Commission Defense Organization
Washington, DC 2030 l
1.703.696.9490x l 15
michel.paradis@osd.mil
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UNCLASSIFIED .
(~
CERTIFICATE OF COMPLIANCE WITH RULE 32(A)
Certificate of Compliance with Type-Volume Limitation,

Typeface Requirem~nts, and Type Style Requirements
l. This brief complies with the type-volume limitations imposed by Fed. R.

App. P. 32(a)(7)(B) as augmented by Peti~ioner's motion to this Court on August
1, 2013, because:
[K]this brief contains 6,995 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii), or
Otiis brief uses a monospaced typ~face and contains _ _ lines of text,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
ffihis brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in 14 point font size and Times New Roman type style; or
Otiis brief has been prepared in a monospaced typeface using _ _ _
with - - - - - - - -
Dated: January 15, 2016

Respectfully submitted,
Isl Michel Paradis

Counsel.for Petitioner
31
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UNCfslzggffigs
~)STATUTORY
& REGULATORY ADDENDUM
5 U.S.C. 2108(1) .................................................................................................. a-2

10 U.S .C. 948a(9) ................................................................................................ a-2
10 U.S .C. 948d(a) (2006) .................................................................................... a-2
10 U.S.C. 950p(a) ................... ............................................................................. a-3
I 0 U.S.C. 950p(c) ................................................................................................ a-3

10 U.S.C. 950t(l ) ................................................................................................. a-3
10 U.S.C. 950t(15).......................................... .............. ....................................... a-3

10 U.S.C. 950t(31) ............................................................................................... a-4
10 U.S.C. 950t(32) ................................................................................ :............... a-4
10 U.S.C. 16163(a) .............................................................................................. a-4

20 U.S.C. 1138()(2) ................ .................................. .......................................... a-4
28 U.S.C. 224l(e) ................................................................................................ a-5

38 U.S.C. 5302A .................... .....................................,. ... .................................... a-5
50 U.S.C. 1544 ............ ............................................................................ ............ a-6
a-1
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5 u.s.c. 2l08(1)
"veteran'' means an individual who-(A) served on active duty in the anned forces during a war, in a campaign or
expedi tion for which a campaign badge has been authorized, or during the
period beginning April 28, 1952, and ending July 1, 1955;
(8) served on active duty as defined by section 101 (21) of title 38 at any
time in the anned forces for a period of more than 180 consecutive days any
part of which occurred after January 3 1, 1955, and before October 15, L976,
not including service under section 12103(d) of title I 0 pursuant to an
enlistment in the Army National Guard or the Air National Guard or as a
Reserve for service in the Anny Reserve, Navy Reserve, Air Force Reserve,
Marine Corps Reserve, or Coast Guard Reserve;
(C) served on active duty a s defined by section 101(21) of title 38 in the

anned forces during the period beginning on August 2, 1990, and ending
on January 2, 1992; or
(D) served on active d uty as defined by section l 01 (2 1) of title 3 8 at any

time in the armed forces for a period of more than 180 consecutive days any
part of which occurred during the period beginning on September 11, 200 l,
and ending on the date prescribed by Presidential proclamation or by law as
the last date of Operation Iraqi Freedom;
and, except as provided under seetion 2108a, who has been discharged or
released from active duty in the armed forces under honorable conditions;
10 U.S.C. 948a(9)
Hostilitics.-The tenn "hosti lities" means any conflict subject to the laws of
war.
I 0 U.S.C. 948d(a) (2006)

Jurisdiction.-A military commission under this chapter shall have jurisdiction
to try any offense made punishable by this chapter or the law of war when
committed by an alien unlawful enemy combatant before, on, or after
September 11, 200 I.
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10 U.S.C. 950p(a)
Definitions.-In this subchapter:
(l) The term "military objective" means combatants and those objects
during hostilities which, by their nature, location, purpose, or use, effectively
contribute to the war-fighting or war-sustaining capability of an opposing
force and whose total or partial destruction, capture, or neutralization would
constitute a definite military advantage to the attacker under the
circumstances at the time of an attack.
(2) The term '~protected person" means any person entitled to protection
under one or more of the Geneva Conventions, including civilians not taking
an active part in hostilities, military personnel placed out of combat by
sickness, wounds, or detention, and military medical or religious personnel.
(3) The term "protected property" means any property specifically protected
by the law of war, including buildings dedicated to rel igion, education, art,
science, or charitable purposes, historic monuments, hospitals, and places
where the sick and wounded are collected, but only if and to the extent such
property is not being used for military purposes or is not otherwise a military
objective. The term includes objects properly identified by one of the
distinctive emblems of the Geneva Conventions, but does not include
civilian property that is a military objective.
10 U.S.C. 950p(c)
An offense specified in this subchapter is triable by military commission under
this chapter only if the offense is commined in the context of and associated_
with hostilities.
10 u.s.c. 950t(l)
Murder of protected persons.-Any person subject to this chapter who
intentionally kills one or more protected persons shall be punished by death or
such other punishment as a mi litary commission under this chapter may direct.
10 u.s.c. 950t(l 5)
Murder in violation of thelaw ofwar.-Any person subject to this chapter
who intentionally kills one or more persons, including privileged belligerents,
in violation of the law of war shall be punished by death or such other
punishment as a military commission under this chapter may direct.
a-3
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u.s.c. 950t(31)
Contempt-A military commission under this chapter may punish for
contempt any person who uses any menacing word, sign, or gesture in its
presence, or who disturbs its proceedings by any riot or disorder.
10 u.s.c. 950t(32)
Perjury and obstruction of justice.-A military commission under this

chapter may try offenses and impose such punishment as the military
commission may direct for perjury, false testimony, or obstruction of justice
related to the military commission.
10 U.S.C. 16163(a)
Eligibility .-On or after September 11, 200 l, a member of a reserve
component is entitled to educational assistance under this chapter if the
member(1) served on active duty in support of a contingency operation for 90
consecutive days or more; or

(2) in the case of a member of the Anny National Guard of the United States
or Air National Guard of the United States, performed full time National
Guard duty undersection 502(f) of title 32 for 90 consecutive days or more
when authorized by the President or Secretary of Defense for the purpose of
responding to a national emergency declared by the President and supported
by Federal funds.
20 u.s.c. 1 l38(f)(2)
Definition of Eligible Student.-In this subsection, the term "eligible studenC'

means an individual who is enrolled as a full-time or part-time student at an
institution of higher education (as defined in section 1002 of this title) and is(A) a dependent student who is a chi ld of.(i) an individual who is(1) serving on active duty during a war or other military
operation or national emergency (as defined in section 1088 of
this title); or
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lJl'JGL~'~ BBIFJED
(II) performing qualifying National Guard duty during a war or

other military operation or national emergency (as defined
in section 1088 of this title); or
(ii) a veteran who-
(1) served or performed, as described in clause (i),

since September 11, 200 l; and
(II) died, or has been disabled, as a result of suchservice or

performance; or
(B) an independent student who(i) is a spouse of an individual who is(1) serving on active duty during a war or other military
operation or national emergency (as defined in section 1088 of

this tide); or
(II) performing qualifying National Guard duty during a war or
other military operation or national emergency (as defined
in section 1088 of this title);
(ii) was (at the time of death of the veteran) a spouse of a veteran
who(1) served or performed, as described in clause (i),
since September 11, 2001; and

(II) died as a result of such service or performance; or
(iii) is a spouse of a veteran who(1) served or performed, as described in clause (i),
since September 11, 2001; and
(I I) has been disabled as a result of such service or

performance.
28 U.S.C. 224l(e)
(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 Stales tohave been
properly detained as an enemy combatant or is awaiting such determination.
a-5
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UHCLASSIFJED
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the
Detainee Treatment Act of 2005 (1 0 U.S.C. 80 l note), no court, justice, o r
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 to have been
properly detained as an enemy combatant or is awaiting such detennination.
38 U.S.C. 5302A
(a) Limitation on Autbority.-The Secretary may not collect all or any part of
an amount owed to the United States by a member of the Armed Forces or
veteran described in subsection (b) under any program under the laws
administered by the Secretary, other than a program referred to in subsection
(c), if the Secretary determines that termination of collection is in the best
interest of the United States.
(b) Covered lndividuals.- A member of the Armed Forces or veteran
described in this subsection is any member or veteran who dies as a result of an
injury incurred or aggravated in the line of duty while serving in a theater of
combat operations (as determined by the Secretary in consultation with the
Secretary of Defense) in a war or in combat against a hostile force during a
peri od of hostilities after September 11 , 2001.
(c) Inapplicability to Housing and Small Business Benefit Programs .-The

limitation on authority in subsection (a) shall not apply to any amounts owed .
the United States under any program carried out under chapter 37 of this title.
50
u.s.c. 1544
(a) Transmittal of r-eport and .-eferral to Congressional committees; joint
request for convening Congress.-Each report submitted pursuant to section
1543 (a)(l) of this title shall be transmitted to the Speaker of the House of
Representatives and to the President pro tempore of the Senate on the same
calendar day . Each report so transmitted shall be referred to the Committee on
Foreign Affairs of the House of Representatives and to the Committee on
Foreign Relations of the Senate for appropriate action. If, when the report is
transmitted, the Congress has adjourned sine die or has adjourned for any
period in excess of three calendar days, the Speaker of the House of
Representatives and the President pro tempore of the Senate, if they deem it
advisable (or if petitioned by at least 30 percent of the membership of their
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USCA Case #15-1023

UNCLASSIFIED//FOR PUBLIC RELEASE

filed with Classifi ed

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ABD AL-RAHIM HUSSEIN AL-NASHlRl,

IN RE: ABO AL-RAHIM HUSSEIN AL-NASHIRI

Counsel for Petitioner-Appellant

UNCLASSIFIED//FOR PUBLIC RELEASE

USCA Case #15-1023

UNCLASSIFIED//FOR PUBLIC RELEASE

AS TO PARTIES, RULINGS AND RELATED CASES

and Amici Appearing Below

a. (~ Abd Al-Rahim Al-Nashiri, Defendant-Petitioner

b. (-H1 United States of America

Brosnahan (on brief)

and amici Appearing in this Court

a. (~ Abd Al-Rahim Hussein Al-Nashiri, Petitioner-Appellant

(-H? U.S. Department of Defense, Respondent

c. (~ Barack Obama, et al., Appel/ees

Amicus Curiae Retired Generals, Admirals & Colonels, James

Brosnahan (on brief)

Amicus Curiae Physicians for Human Rights, David Remes

g. (~ Amicus Curiq.e National Institute of Military Justice, ~ric

UNCLASSIFIED//FOR PUBLIC RELEASE

USCA Case #15-1023

UNCLASSIFIED//FOR PUBLIC RELEASE

Lil JCL.A88fFI E:B

mandamus and prohibition to the military commission created by Convening Order

Obama, 76 F.Supp.3d 2 18 (D.D.C. 2014).

previously before this Court in Case No. 14-1203. That

Dated: January 15, 2016

Counsel for Petitioner

UNCLASSIFIED//FOR PUBLIC RELEASE

USCA Case #15-1023

UNCLASSIFIED//FOR PUBLIC RELEASE

Table of Authorities ........................................................ ................................. iv

Glossary of Terms ............................................................................................ vii

of Argun1ent ......................... ............................................................. J

(-tf? There is no plausible argument that the charges in this case

occurred in the context of hostilities ............ ........................... .............................. 2

abstention is inappl icable ............................................. 24

(~ The military commissions in Guantanamo neither need, nor warrant,

Cer-tificate of Compliance with Rule 32(a) ................................................... 31

& Regulatory Addendum ................................................................. I

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*Authorities upon which Petitioner chiefly relies are_marked with an asterisk.

*Lee v. Madigan, 358 U.S . 228 (1959) ................................. :............................... 16

20~5) .................................... ;............. 10

v. Bush, 553 U.S. 723 (2005) ....._...................._........ ;..................,. 22, 28

U.S. 209 (I 95~~........ ~ ............................................ 16 _

P~ntikes, 4l4 U.S. 51 (1973)..... :.......... ............. ,. ...........::.:...... ~ ........... ~6

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USCA Case #15-1023

Murray v. Haldeman, 16 MJ. 74. (C.M.A. 1983) . .......... :................................. 18

v: Klintock, 5 Whea~. 144 (1820) ....: ...............:........................ :._...... 9 .

United Stale_s v. Mohammed, ei al., AE144

AEI 50 (2008): ................... :........................................ 13

Verqnoy. De Ange/is 'Coal, 41 F. Supp. 954 (M.D.Pa. 1.941) ............................... 8

W.illenburg V: Neurauter, 48 f\:1.J. 152

Youngstown. S~eet &

c.c.A... A.F. f998) ...... :........................... :.;... 18