2015-11-20 al-nashiri merits brief [redacted]

7/25/2019 2015-11-20 Al-Nashiri Merits Brief [REDACTED]

1/95

UNCLASSIFI

ED

//FOR PUBLIC RELEASE

15 5020 15 1023

Oral

argument not yet scheduled] pi

.

.

1

CJ ri

C t

i t

l asst ICfr

~ t t l t t h ~ u f t S Qlnurf nf

~ > r m ~ l i m ~ i t y

OITiee r

Date

f f ~ . . s

FOR

THE

DISTRICT OF

COLUMBIA

Cl RCUIT

Docket Nos. 15 5020 15 1023

ABD AL-RAIIlM HUSSEIN A L N A S H I R I ~

Appellant

v

BARACK OBAMA et al.

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUI\1BIA

IN RE: ABD AL-RAHIM HUSSEIN AL-NASHIRI

PETITIONER-APPELLANT'S BRIEF

Michel Paradis

Department ofDefense

Military

Commissions Defense Office

162

Defense Pentagon

Washington DC 20301

l.703.696.9490xl 15

[email protected]

Richard Kammen

Kammen Moudy

135 N. Pennsylvania St. Suite 1175

Indianapolis IN 46204

1.3 I 7.643.6009

[email protected]

Counsel or Petitioner-Appellant

UNCLASSIFIED//FOR PUBLIC RELEASE

USCA Case #15-1023 Document #1594688 Filed: 01/20/2016 Page 1 of 95


2/95

U N C ~ A S S I F I E D F O R PUBLIC RELEASE

L1 CERTIFICATE

AS

TO PARTIES,

RULINGS AND

RELATED

CASES

I.

~ P a r t i e s and Amici

Appearing

Below

1. ~ b d Al-Rahim Al-Nashiri, Defendant-Petitioner

2. ~ n i t e d States

of

Ameri

ca

3. ~ B a r a c k Obama, et al., Respondents

'

4.

~ A m i c u s Curiae

Retired

e n e r a l s ~

Admirals & Colonels,

Jam

es

Brosnahan (on brief)

5 ~ A m i c u s Curiae

David

Glazier,

Thomas Mcintosh

on

brief)

II. Parties and

amici

Appearing in this Court

L

Cl B

l ..bd Al-Rahim Hu

ss

ein Al-Nashiri,

Petitioner-Appellant

2. 'tl'1 U.S. Department ofDefense, Respondent

3. (e ) Barack Obama, et al.

Appellees

III. (l:Jl Rulings under Review

~ T h i c a ~ e

consolidated two actions.

The

first is a petition for a writ

of

mandamus and prohibition to the military commission created y Convening Order

J

#11-02 (Sept. 28, 2011).

The

second is

an

appeal from the denial

of

a preliminary

injunction in a habeas case

y

the United States District

Court

for the District

of

Columbia,

Case

No. 08-1207.

This latter decision is reported at

Al Na

s

hir

i v.

Obama 76 F.Supp.3d 218 (D.D.C. 2014).

1

ut E ts/r88ff?IE8

UNCLASSIFIEO//FOR PUBLIC RELEASE

-.

.



3/95

UNCLASSI ED FOR PUBLIC RELEASE

~ O J S W I E

IV. ~ l a

Ca

ses

U)

Petitioner was previously before this Court in Case No. 14-1203.

That

case raised this

Court s

jurisdiction to issue equitable rel

ief via

the All Writs Act,

28 U.S.C.

1651, to military commissions convened under the Military

Commissions Act of 2009,

123

Sta

t

2190 2009). This

Co

urt

s

decision

was

reported as In re Al-Nashiri 791 F.3d

71

D.C. Cir. 2015).

Dated:

November 20, 2015

By:

Isl Michel Paradis

Counsel/or Petitioner

ffCMSSifl EB




4/95

UNCLASSIFIED//

FOR

PUBLIC RELE

AS

E

l9f

0 b A 8 ~ U F I B 8

~ B L E

OF CONTENTS

~ T a b l e ofAuthorities ............................................................................................ v

~ G l o s s a r y

of Terms ............................................................................................... x

t:J}i iJu risdictional Statement .................................................................................. xi

~ l s s t i . e s Presented ................................................................................................xii

~

Statement

of

the Case .......................................................................... ............. 1

U)

Summary

of

Argument ....................................................................................

7

E: lJ)

i \rgument ............................................... . .. . ...... ..........................................3

I. (U) Standard of Review ................................................................................ 30

II.

~

a s h i r i

right

not

to be tried

by

a

military

commission

is

clear

because Ye

men was not

a theater of hostilities

at

any time

relevant

to

the

allegations against

h

im

. .......................................................................................

32

A. ~ h e Department of Defense may n


5/95

UNCLASSIFIED FOR PUBLIC RELEASE

l

@ SJ

i

U

3 5

V.

~ h Di

strict Court

abused its

discretion

when it denied injWlctive

relief without a reasoned opinion .......................................................................

57

A. ~ h e district court's failure to decide

the

request for

injunctive relief on the merits was clear error ................................................

57

B

~ r a n t i n g

a cross-motion for a stay in order to moot a request

for a

preliminary injunction is clear error. ......................................................

59

C.

~ h e

district court

erred in

extending equitable abstention

doctrines where they do not apply .................................................................. 59

C

I

onclus1on

........................................................................................................ 6

~ e r t i f i c a t e

o

Service 63

~ e r t i f i c a t e

of Compliance with Rule 32(a) ................................................... 64

~ Statutory Regulatory Addend um ............................................................ a-1

JV

t f8Js 188IFlf98




6/95

UNCLASSI ED//FOR PUBLIC RELEASE

~ B L OF

AUTHORITIES

*Authorities upon h i c h Petitioner chiefly relies

are marked

with

an

asterisk.

Cases

Exparte Quirin, 317 _U.S. 1 1942) ....................................................35,45, 54, 55

*Grisham

v.

Hagan,

361 U.S. 278

1960) .................................................. 35,

48, 49

*Hamdan v. Rumsfeld, 548 U.S. 557 2006)..... 29, 33, 34, 38, 41, 45, 50, 54, 56, 61

Reid v.

Covert, 354 U S 1 1957) ......................................................................... 34

*The

Prote

ctor, 79 U.S. 700 1871) ......................................................... .............. 36

Aamerv. Obama,

742F.3d

1023 D.C. Cir.

2014) .................................................30

Abney

v.

United States, 431

U.S.

651 1977)

...................................................

44,45

Al-Bihaniv. Obama,

590 F.3d 866 D.C. Cit. 2010) ........................................ 36, 38

Al-Nashiri

v.

NlacDonald, 741F.Jd1002 9th Cir. 2013) ............................. : ....... 26

Al-Nashiri

v.

Obama,

76

F.Supp.3d 218 D.D.C. 2014) ................. 26, 52, 58, 59, 60

Amazon.com v. Barnesandnoble.com, 239 F.3d 1343 Fed. Cir. 2,001) ...............

57

Bahlul

v.

United States, 767 F.3d 1 D.C. Cir.

2014) ............................................. 35

Baker

v. Carr, 369 U.S. 186 1962) ......................................................................... 3 6

Bullington

v.

Missouri,

451

U.S.

430 1981) ....................................................... ..

53

Carter

v.

Halliburton, 710 F.3d 171 4th Cir. 2013) ........ ..................................... 38

Caspari

v.

Bolden, 510 U.S. 383 1994) ................................................................. 48

Cheney

v. US.

Dist. Court

for

Dist. ofColumbia,

542 U.S.

367 2004) ................ 31

Davis

v. PBGC, 571 F .3d 1288 D.C. Cir. 2009)............ ................................. 30, 58

Ex parte Milligan, 4 Wall. 1 1866) ........................................................................ 34

Fay v. Noia, 372

U.S. 391

1963) ........................................................................... 47

Federal Maritime Comm

n v.

Seatr.ain Lines,

411

U.S.

726 1973) ......................

42

Ford v

Wainwright,

477 U S 399 1986) ........................................................ 52, 53

Gordon

v.

Holder, 632 F.3d 722 D.C. Cir. 2011 ) .................................... ....... 57

Hamdan

v.

Rumsfeld,

415F 3d 33 D.C. Cir.

2 0 ~ 5 ........ .......................... 60, 61

Hamdan

v. United States,

696 F.3d

1238 D.C. Cir.

2012) .................................... 38

/

v

~

fl 1eABBWBl8




7/95


Hussain v. Obama, 134 S.Ct. 1621 (2014) ............................................................. 61

Jn

re Bituminous Coal Operators

Ass n,

949F.2d1165

(D.C. Cir. 1991) ...........

42

Jn re September 11th Litigation,

751F.3

d 86 (2d. Cir. 2014) .... ........................... 38

Jn

re

Yamasl1lta

327

U.S.

1 1946) .......................................................................... 35

In re: Al-Nashiri,

791F.3d71

(D.C. Cir. 2015) ............................. 25, 31, 38, 46, 49

Johnson v Eisentrager, 339 U.S. 763 (1950) ......................................................... 35

Kickapoo Tribe

v

Babbitt,

43 F.3d 149 1 (D.C. Cir. 1995) .................................... 58

Kinsella

v

Singleton, 361U.S.234

(1960) .............................................................35

Lee

v

_

Madigan, 358 U.S. 228 (1959) ..................................................................... 36

Ludecke

v. Watldns, 335 U.S. 160 (1948) ...............................................................36

asterson

v.

Hol11ard

85

U S

99 1873)

.................................................................

36

McElroy

v

United States ex rel. Guagliardo, 36

U.S.

281

(1960) ....................... 35

Meshal

v

Higgenbotham,

804 F.3d 417 (D.C. Cir.

20 5)

.....................................

38

Midland Asphalt Corp.

v

United States,

489 U.S. 794 (1989) ........................

46

Mills v District o/Columbia, 571F.3d

13

04 (D.C. Cir. 2009) ..............................57

Obaydullah

v

Obama, 609LF.3d 444 (D.C. Cir. 2010) ....................................60, 61

Privitera

v

California Bd. ofMedical Quality Assur.,

926 F.2d 890

(9th Cir. 1991) ......................................................................................................

59

Proctor Gamble

v

Kraft Foods Global,

549 F.3d 842 (Fed. Cir. 2008) ............ 59

Rafeedie

v

l.N.S.,

880 F.2d 506 (D.C. Cir. 1989), ................................................. 46

Rasul v. Bu.sh, 542 U.S. 466 (2004) ........................................................................ 38

Schlesinger

v

C o u n c i l ~ a n 420 U.S. 738 (1975) ................ : ........................... 60, 62

Sprint Communications v Jacobs, 134 S.Ct. 584(2013) ....................................... 59

Talbot v Seeman, 1 Cranch 1 (1801) ....................................................................... 36

The Prize Cases, 2

Black

635 (1862) .....................................................................

37

Toth v. Quarles, 350 U.S. 11(1955) .................................................................. 30, 45

United States v Pfluger,

685 F.3d 48 1 (5th Cir. 2012) .. 38

United States v

Frediani,

790 F.3d

11

96

1

1th Cir. 2015) .... ................................ 38

United States

v

Ghailani,

733 F.3d 29 (2d Cir. 2013) ........................................... 56

vi

t f@Is/tBBWH '.8




8/95


United States

v

Harper 729 F.2d 1216

9th

Cir. 1984) ..................................

47,

49

United States

v

Quinones 313 F.3d 49

2d

Cir. 2002) ..........................................

47

United States

v

Taylor

487 U.S. 326 1988) ..................... ....................................58

Walton

v

Johnson 407 F.3d 285 4th Cir.

2005)

............ .......... , ........................... 53

Younger v Harris 401 U.S. 37 1971) ................................................................... 62

Cons

ti

tu tional Provisions

U.S. Const., art. I 8, cl. 11 ........... ......................................................................... 36

U.S. Const.,

art.

II

2,

cl.

J ..... ..................................................... .......................

3 7

U.S. Const.,

art

. III

2,

cl. 3 ...................................................................................

27

U.S.

Code

I0

U.S.C.

948a

~

1

l 0 U.S.C. 948b ....... . .................. , .......................................................xii, 1, 32,

42

10 u s c 948h .................................. : ................................................................... 1

10

u s c

948i ........... .................................................................. ........................... 1

10 U.S.C.

948j ...........................: ........................................................................... 1

10

u s c

949a . I

34

1

u.s.c.

949h

t :

l

10 U.S.C.

950g ......................................................................................................xi

10 u s c 950p ...................................................xii, 1, 3, 25, 27, 32, 33, 41, 42, 55

28 u s c

1292 ........................................................... ...... ....................................

28 U.S.C. 1651 .........................................................................................: ...........xi

28

U.S.C.

2241 ..................................... ........................ : .................................

xi,25

s

u s c 1541

3

50U

.S.C. 1543 ........ .................... ................... ....................................... .........37, 39

50 u s c 1544 ........................... ......... ................................................................. 37

Vll

u

8IsABBifIB8




9/95


UNC

t ASStfffit>

Congressional

Materia

ls

Authorization for the Use ofMilitary Force, 115

Stat

. 224 ................................

37

CRS Sununary,

NationaJ

Defense Authorization Act

for Fiscal

Year

2010, Pub. L. 111-84 Oct. 28,

2009)

..................................... ............................. 33

H.R. Rep. No. I 09-664 1) 2006) ............................................................................

34

Jennifer Elsea Matthew Weed, CRS Report for Congress, Declarations

of War

and Authorizations

for

the Use

of

Military Force Apr.

18

2014) ......... 54

Military Commissions Act

of

2009, 123 Stat. 2190 2009) ...............................xi

42

Supporting peace, security, and innocent cjvilians affected by conflict in

Yemen, S.

Re

s. 341,

11 lth

Cong. 2009) ............................................................ 40

War Powers Resolution, 87 Stat.

5

55 1973) .................. ......................... ............... 37

Execuiive

Materia

ls

AE104A Sep. 13, 2012) ................................................................................... 25, 41

AE104F Jan. 2013) ..........................................................................................25

AE140J Mar.

23 .

2013 ......................................................... . ............................... 5

AE168G/AE241C Aug. 11, 2014) .......................... ............ ................................... 25

Al Nashiri

v MacDonald, Case

No.

12-35475, Resp. Br.

9th Cir., Nov.

20, 2012)

................................................... : ................ ...... ...........

26

Al Nashiri

v.

Obama, et

al.,

Case

No. 08-1207, Resp. Opp.

(D.D.C.May

15 ,2014) ............ ... ...... ....... ............................................................ 26

Chiefof

Naval Operations, Investigation to Inquire into

the

Actions o/USS COLE DDG 67) in Preparingfor and

Undertaking a Brief

Stop

for Fuel at Bandar at Tawahi

Aden Harbor) Aden, Yemen

on

or about 12 October

2000

Jan. 9, 2001) ....................................................................... .................. ..............

40

Convening

Order 11-02

Sept.

28

, 2011) ................................

xii,

24, 25,

27,

41, 63

Letter to Congressional Leaders

on

the Gl

ob

al Deployment o

United States Combat-Equipped Armed Forces, Daily Comp.

Pres. Docs., 2015

DCPD

No. 201500428 Jun. 11, 2015) .................................. 39

Letter to Congressional Leaders Reporting

on

Efforts in the

Global War on Terrorism, 39 Wkly. Comp. Pres. Doc . 1247

Sept. 19, 2003) .......... .

..

............................................................

..

............ ......... 4, 40

Vlll

l: Jit

Cf Jlf

BBlf f5B




10/95

UNCLASSIFI ED FOR PUBLIC RELEASE

Uf f@IsttBSIFIEB

Letter

to Congressional Leaders Reporting on

the

Deployment

o

Forces in Response to the Terrorist Attacks

o

September

11 38 Wkly.

Comp. Pres. Doc.

1588

(Sept.

20,

2002)

......................................... 4

Letter

to Congressional Leaders Reporting

on the

Deployment

o

United States Forces in Response

t the ttack on the USS

COLE,

36 Wkly. Comp.

Pres.

Doc.

2482

(Oct. 14, 2000) .... .......................... 2, 39

Letter

t

Congressiorzal Leaders Reporting on the Deployments

of United States Combat-Equipped rmedForces

round

the

World, 43 Wkly. Comp. Pres. Doc.

815 (Jun. 18, 2007) ................ ...: ................

39

Letter to Congressional Leaders Reporting on United States

Efforts in the Global War

on

Terrorism,

39 Wkly. Comp.

Pres. Doc.

346 Mar

. 20, 2003 ) .................

..

........................................................ 4

Letter

to the Speaker of the House

o

Representatives

and

the

President

Pro Te

mpore

of he Senate, 37 Wkly. Comp.

Pres.

Doc. 144

7 (Oct. 9, 2001 ) ..................................................................................

3,

3 8

Reg.T.Mil.Comm.

2011) .................................................................... ......................

1

The President s Radio Address,

36

Wkly.

Comp. Pres. Doc.

2464

(Oct. 14,

2000)

........................................................................................ 2,

39

Miscellaneous

American

Bar

Association Guidelines

for

the Appointment

and

Performance ofDefense Counsel in

Death

Penalty Cases, 31

Hofstra

L. Rev. 913 (2003) ..... .........

........................................................... 48

Harry Edwards, Linda Elliott Marin Levy,

Federal Courts

Standards

o Review 2d ed. 2013) .......................................... .....

....................... 30

William Winthrop,

Military

Law and

Precedents

(1920) ....................................... 33

lX

Mil

J@ sAB81Ftt}fJ

UNCLASSI

FI

EDI FOR PUBLIC RELEASE



11/95

----

-


U f8Is2\B8IFIE8

~ G L O S S A R Y OF T RMS

~ 0 0 9

Act

...................Military Commissions Act of 2009, 123 Stat. 2190 (2009)

U)

706

Report

........

RMC 706

Sanity Board Evaluation

of

Abd Al Rahim

Hussayn

Muhammad Al Nashiri: ISN 10015 (Mar. 28, 2013)

U) App .............................. ................. Petit ioner s Appendix Vol. I (Nov. 20, 2015)

~ A p p . I I

.......................................... Petitioner s Appendix Vol. (Nov. 20, 2015)

~ A U M F

.......... u t h ~ r i z a t i o n

for the Use of

Military Force, 115 Stat. 224 (2001)

~ I A O I G Report ....... Central Intelligence Agency Inspector General, Report

of

Investigation, Unauthorized lnterro ation Techni ues

at [REDACTED],

~ I A O I G Review

......... Central Intelligence

Agency

Inspector General, Special

Review: Counterterrorism Detention and Interrogation

Activities, 2003-7123-IG (May 7, 2004)

~ C r o s b y Deel. ............... Declaration of Dr. Sondra Crosby, M.D. (Oct. 24, 2015)

~ R e g . f

.Mil.Comm .............Regulation_or Trial

by

Military Commission (2011)

~ N Y

Indictment .............

United States v al-Badawi,

eta ., No. 98-CR-1023

(S.D.N.Y., unsealed

May

15, 2003)

~ S S C I

Report ....... Senate Select Committee on Intelligence, C o m ~ i t t e e

Study

o

the Central Intelligence Agency's Detention and Interrogation

P r o g r a m ~ Executive Sunimary (Dec. 3 2014)

Y ~

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)

~ W i n t h r o p .... , .................. William Winthrop, Military Law

r

ecedents (1920)

x

lM f

8isA8BWB9 .8

UNCLASSI ED//FOR PUBLIC RELEASE



12/95

..

------


. lsJ f8Jis/1CJBIFIBB

(l:f) :JURISDICTIONAL ST TEMENT

(C J) This Court has supervisory judsdiction over all

military

comm1ssions

created under the authority

of

he

Military

Commissions Act

of

2009

>

123

Stat.

2190 (2009) ( 2009

Act ).

10

U.S.C.

950g. This

Court can issue all writs

necessary and appropriate in aid

of

that jurisdiction pursuant to 28 U.S.C. 1651.

Petitioner also filed a petition for a

writ of

habeas corpus in the U.S. District Court

for the District of Columbia. 28 U.S.C. 224l(a). This Court has jurisdiction to

review Petitioner's entitlement to relief via habeas corpus and the district court's

refusal to enter a preliminary injunction under

28

U.S.C.

1292 a) l)

&

2 2 4 1 a ) ~

.

XI

WlJOTs tSSIFle8




13/95


9? f0Is/tBBW IE 8

~ S S U S PRESENTED

~ 2009 Act authorizes the Secretary ofDefense or his delegate (the

Convening Authority ) to convene

military

commissions to

try

offenses triable

by military commission as provided

in

this chapter, 10 U.S.C.

948b(b), and an

offense specified in this subchapter is triable

by

military commission under this

chapter only if he offense is committed in the context

of

and associated with

hostilities. Id 950p

c)

. The Convening Authority issued Convening Order #11-

02 (Sept. 28, 2011), which created a military commission to try Petitioner-

Appellant,

Abd

Al-Rahim Al-Nashiri ( Al-Nashiri ), for his alleged role in

terrorist plots in Yemen .All of the allegations levied in this order, however>

occurred before hostilities of any kind existed in Yemen. This raises

one

statutory

and one constitutional question:

1. Convening

Order 1

1-02 violate 10 U.S.C.

950p(c)

by

co

nvening a military commission

to

try Al-Nashiri for capital offenses that did not

occur in the context of and were not associated with hostilities?

2. ~ o e Convening

Order

#11-02 violate the judici

al

trial requirements of

Article III and the Fifth and Sixth Amendments by subjecting Al-Nashiri to

prosecution by

the

military conunission for capital offenses that did n

ot occur

in

the

context

of

an

d were

not

associated

with

hostilities?

..

XU

f

f@b\S8IFIIS8




14/95

_

______

_

-

--

---


l91

J@LA99If H15

S T T E M E N T OF THE CASE

A. S t a t u t o r y Sch

em

e

of

the Military Comm issions Act

of

2009.

h e 2009

Act

authorizes the Secretary of Defen

se

and his delegates, to

establish military commissions, but only for offenses triable by military

commission as provided in this chapter.,, 10 U.S.C. 948b(b), 948h. The

Secretary

of

Defense has delegated this responsibility to the C o n v ~ n i n g

Authority,

a civil servant

in the

Department of Defense.

Supp.Pet.

App.

1.

) ifhe

Convening Authority creates commissions

d

hoc

by

i

ssuing

orders

to the commission's members to

try

specific charges against a specific accused.

The

members

are

military

officers, assigned

by the

Convening

Authority

to sit as

finders

of

fact,

recommending

both a verdict and an upper bound ofpunishment.

l 0 U .S.C. 948i. The trial is presided

over

by a military judge, id 948j,

assigned

by

the officer the Convening Authority designated

the Chief

Trial

Judge

.

Reg.T.Mil.Comm. .6-1, et seq (2011).

(

U) =fhe

2009

Act

enumerates two limitations

on

the offenses triable by

military commission: a double jeopardy limitation,

I 0 U.S.C.

949h,

and the

require

ment

that [a]n offense ... is triable by military commission under this

chapter

only if he offense is committed in

the

context of and associated

with

hostilities. Id 950p(c). Hostilities is defined as a

co

nflict subject to the laws

of

war.

Id

948a(9).

1

Ut

T@e tBBWIB8




15/95

UNCLASSIFIEDI FOR PUBLIC RELEASE

B

~ L e g a l Status

ofYemen at Times

Relevant

to this Case.

~ A t

all times relevant to this case, the United States

had

forces stationed

in Yemeni territory for peacetime training, diplomatic, and logistical operations.

Neither the Presidentnor Congress ever found that this placed U.S. forces in

an

area

of

actual

or

likely hostilities, such that the law

of

war would apply. This

includes the period surrounding the bombing

of

the USS

COLE

in October 2000,

which is

at

the center

of

the allegations against Al-Nashiri. After the bombing,

President Clinton did nothing to invoke

or

otherwise apply the l

aw

ofwar. Instead,

he

stated that the country was in peacetime:

[E]ven when America is not at war, the men and women

of

our

military risk their lives every day

No

one should think

for a moment that the strength

of

our military is less important

in

times

of

peace, because

the

strength

ofour

military is a

major reason

we

are

at

peace.

The resident s Radio Address

36 Wkly. Comp. Pres. Doc. 2464 (Oct. 14, 2000).

The

President reported to Congress that additional U.S. personnel were deployed

to

Yemen solely for the purpose ofassisting in on-site security . forces will

redeploy as soon as the additional security support is determined to be

unnecessary. Letter to Congressional Leaders Reporting on the Deployment of

United States Forces

in

Response to the Attackon the USS COLE

36 Wkly. Comp.

Pre

s Doc. 2482 (Oct. 14, 2000).

2

l 9f

i@h\88Ifl@JJ

UNCLASSIFIEDI FOR PUBLIC RELEASE



16/95

' w - -

-


fl

f@hABOIPIM

(l 9i) Nothing

in the public record suggests that

the

USS COLE incident

occurred during a conflict, in the context of hostilities, or was subject to the

laws

of

war

as

required by 950p(c).

The government's

response was

to

send

the

FBI to conduct a criminal investigation; This led to an indicqnent in the Southern

District

ofNew

York that remains pending. United States v. al-Badawi et al. No.

98-CR-1023 (S.D.N.Y., unsealed May 15, 2003) ( SONY Indictment).

~ year later, after the September 11th attacks, Congress passed the

Authorization for the Use ofMilitary Force ( AUMF''), 115 Stat. 224 (codified at

50 U.S.C.

1541,

note

. The Aillv1F authorized the President

to use

all necessary

and

appropriate force against those nations, organizations,

or persons

responsible

for the September 11th

attack

Id. 2(a). The AUW' supplements and is codified

as a note to the War Powers Resolutfon, Pub. L 93-148, 87 Stat 555 (codified at

50 U.S.C. 1541, et seq. . Id. 2(b)(l). When drawing upon the AUMF to engage

in hostilities in specific places, the President has done so via War Powers

Resolution reports. See e.g. Letter to the Speaker of he House o Representatives

and the

Pr

esident Pro Te

mp

o

re o

he Senate

37

Wkly. Comp. Pres. Doc. 1447

(Oct. 9, 2001) (hostilities

in

Afghanistan).

(U .) 'fhe President did not extend the

AUMF's

war-making authorities to

Yemen at any time relevant to allegations against AL-Nashiri. In the months

surrounding Al-Nashiri' s seizure, President

Bush

reported

to

Congress

tha

t the

3

u f@ISfr88Ifiet9




17/95

UNCLASSIFIED F

R

PUBLIC RELEASE

deployment of U.S. personnel in Yemen was strictly for training and equipping

their armed o ~ c e s and providing oversight for urban and maritime counter-

terrorism training with the Yemen special operations forces.

l tt r

to

Congressional Leaders Reporting on the Deployment o Forces in Response to the

Terrorist Attacks

of

September 11 38 Wkly. Comp. Pres. Doc. 1588 (Sept. 20,

2002);

Letter

to Congressional Leaders Reporting on United States

jforts

in the

Global War on Terrorism 9 Wkly. Comp. Pres. Doc. 346 (Mar. 20, 2003).

U,

On

September

19,

2003, nearly a year after

l - N a s h i r i

was in custody,

the President notified Congress

of

military operations against al-Qaida and other

international terrorists in the Horn ofAfrica re.gion, including Yemen.

Letter to

Congressional Leaders Reporting

on

Efforts in the Global War on Terrorism 39

Wkly. Comp. Pres. Doc. 1247 (Sept. 19, 2003). This was the first time the

President indicated that Yemen was a theater of hostilities.

C.

~ A J - N a s h i r i s

Background and Medical Status.

~ A l N a s h i r i is a citizen ofSaudi Arabia, born into a lower-class Yemeni

family. While little ofhis early life s known, Al-Nashiri demonstrated evidence of

mental disability throughout his youth. According to his school records, he

routinely repeated grades

and

ultimately did not graduate from high school until

the age

of

twenty-five. App. 232.

4

f@lSA fiilt:fil




18/95


~ n October 2002, Al-Nashiri was seized by local authorities in the

United Arab Emirates. Supp.Pet 1 3 . He was thereafter taken into the custody

of

the CIA as the second prisoner in its newly-formed Rendition, Detention, and

Interrogation ( ~ R D r ) Program.

Id

The objective

of

the RDI program was to

indu


19/95


fW ~ o s e Rodriguez, the CIA s Deputy Director ofOperations responsible

for the

RDI

program,

echoed

this characterization of Al-Nashiri. Addressing

the

claim that Al-Nashiri was the mastermind,, of the USS COLE bombing,

Rodriguez wrote,

mMastennind

was not an

apt

description of [A]l-Nashiri. One of

our

interrogators described

him

to

m as the

dumbest terrorist

I

have ever met.

...

[A]l-Nashiri was a nose picker who delighted in plastering

the

wall of his

cell

with

whatever

he could

excavate from his nostrils. Jose Rodriguez

Bill

Harlow,

ard easures

83 (2012), App. 254.

In late 2012, the government requested a

competency

board

evaluate Al-Nashiri.

Two

psychologists

and one

psychiatrist

conducted interviews with Al-Nashiri and reviewed numerous documents

including summaries of

his interrogations, medical assessment n o t e s ~ and

psychological assessment notes from 2002 through 2006. 706 Report

at

11,

App.II I 08-109.

6




20/95


The

military professionals concluded that Al-Nashiri

suffers Post-Traumatic Stress Disorder

and

Major

Depressive Disorder.

Id at

33-36

App.II 131-34.

~ h i s diagnosis was corroborated

by

Dr. Sondra Crosby, a medical expert

appointed by the commission. Dr. Crosby met

with

Al-Nashiri multiple times,

evaluating him for approximately 30 hours. Crosby Declaration

,8,

App. 63. She

found that Al-Nashiri ''suffers from post-traumatic stress disorder that has not been

addressed -

or

it

hasn t

been diagnosed except for a

brief

period,

or

treated. He

suffers from chronic pain. He suffers from anal-rectal complaints, and all

of

hese

are documented in the unclassified records. Multiple other physical complaints,

headaches, chest pain,

joint

pain, stomach pain. App. at 245.

She

further

concluded

he

suffers from persistent and chronic anal-rectal complaints, difficulty

defecating, bleeding, hemorrhoids,

pain with

sitting for prolonged periods

of

time.

This is very common in survivors

of

sexual assault. Id at 250-251. Dr. Crosby

concluded that Al-Nashiri s symptoms are indicative

of

torture. App. 245.

He

is

7




21/95


hypervigilant, suffers from intrusive recollections and flashbacks, sleep disorders,

and nightmares, all related to specific episodes ofphysical, emotional, and sexual

torture. Crosby Declaration.

ifl2 -13,

App.

63.

(U) Dr. Crosby further found the circumstances ofGuantanamo, including

language barriers and frequent turnover in the guard and medical staff, are all

disruptive to providing continuity ofcare and adverse

to

any potential for

recovery App. 247. Despite the passage of ime, Al-Nashiri has shown little

sustained improvement in his mental health. Crosby Declaration

,16,

App.

64.

Long-lasting effects from torture would be expected, but factors unique to

Guantanamo and the commissions system exacerbate his symptoms. Id

Guantanamo was itself a

black

site." This confronts Al-Nashiri

with

persistent

visual and audible triggers for traumatic stress events, causing him intense anxiety,

dissociation, and painful flashbacks. Jd.1[17. The highly fluid and unpredictable

commission process exacerbates his sense of helplessness and further impairing his

ability to regulate emotions.

Id

~ 2 2 Dr. Crosby predicts , given these

.circumstances, Al-Nashiri is likely to dt ;Compensate during his

trial.

D. Aspects

of

the RDI

Program

Leading to Al-Nashiri's Mental Status.

8




22/95


(U? The following chronology has been reconstructed principally from open-

source materials and summaries ofgovernment documents that were prepared for

defense counsel in lieu of

the original cables, reports, records, and other source

documents. Even these underlying documents were recorded in increasingly

summarized form, providing little on

how

or when the t e ~ i q u e s were applied

during an interrogation. SSCI Report 64

n.31 ,

App.

13 .

Further, the

for which no information is available to defense

clearly demonstrates Al-Nashiri

s

present medical and psychiatric problems are the result - intended result - of the

government's deliberate, years-long campaign to coerce Al-Nashiri into a state

of

learned helplessness.

He was not allowed to sleep, was regularly beaten,.

and hung by his hands. 706 Report at 16, App.II 114. After a month,

he

was

transferred to CIA custody and taken

t

a location codenamed COBALT.

1

In

1

To minimize the use ofclassified infonnation in this pleading, counsel have used

the pseudonyms employed by the SSCI Report for individuals and locations.

9




23/95


transit to COBALT, ice was

put

down his shirt. Id This appears to have been done

as part

of

a broader policy

of

using transportation between black sites to induce

anxiety

and

helplessness. SSCI Report at 64 n.

31

7, App.

13

8;

W) Virtually no documentation

of

Al-Nashiri's time at COBALT exists.

SSCI Report

at

67, n.338, App. 14 l Certain facts can be ascertained from then

prevailing standard operating procedures. The

chiefof

interrogations described

COBALT

as

good for interrogations because it is the closest thing he has seen to a

dungeon, facilitating the displacement

of

detainee expectations. Id at

50

n.240,

App. 124. COBALT operated in total darkness and

the

guard staffwore

headlamps. SSCI Report

at

49, App.

123.

Detainees were subjected

to

loud continuous

noise, isolation,

and

dietary manipulation. SSCI Report

at

67 n.3 38, App. 141.

Hf-.:+N++According to one CIA interrogator, detainees

at

COBALT 'literally looked like a dog that had been kenneled.' When the doors

to their cells were opened,

they

cowered. ' SSCI Report at 50, n.240, App. 124.

At

COBALT,

Detainees were fed on an alternating schedule

of

one

meal

on

one

day and two

meals

the

next day. Id

They

were kept naked, shackled to the wall,

and

given

10

UNCLASSIFIEO FOR PUBLIC RELEASE



24/95

UNCLASSIFIED

FOR PUBLIC RELEASE

buckets for their waste. On one occasion, Al-Nashiri w.as forced to keep his hands

on the wall and not given food for three days. 706 Report at 16, App.II 114. To

induce sleep deprivation, detainees were shackled

to

a

bar on the

ceiling, forcing

them to stand with their arms above their heads. SSCI Report at 49, App. 23

use of improvised interrogation methods, such as water dousing, wherein a

detainee was doused with cold water

and

rolled into a carpet, which would then be

soaked with water in order to induce suffocation. SSCI Report at 105, App. 179.

1-Nashiri was kept continually

naked and the temperature was kept,

in

his words, cold as ice cream. 706 Report

at 16-17, App.II 114-15.




25/95


The documentation o conditions

at lacks

specificity. Most summaries o interrogation say simply

There is no question, however, that Al

Nashiri was waterboarded at GREEN. SSCI Report at 67, App. 141. This

entailed being tied to a slanted table, with his feet elevated. A rag was then placed

over his forehead and eyes, and water poured into his mouth and nose, inducing

choking and water aspiration. The rag was then lowered, suffocating him with

water still in his throat and sinuses. Eventually, the rag was lifted, allowing him to

take 3-4 breaths before the process was repeated. App.II 72.

12




26/95


3




27/95


small box measured

30 x30 x2 l

.

App.II 160. A photograph is given t

14




28/95

UNCLASSIF D FOR PUBLIC RELEASE

UNCLASSIF D FOR PUBLIC RELEASE



29/95


16




30/95


BLUE in early December 2002. App.I 141. At BLUE,

point, Al-Nashiri suffered from a head cold causing him to shake for

approximately ten minutes. SSCI Report

at

72, App. 146. Solid food, clothing,

reading materials, prayer rugs, and Korans were sometimes provided based

on

his

perceived degree

of

compliance with interrogations.

Id

at 62, App. 136. Clothes

were sometimes given to '4stabilize his physiological problems.

Id

at 72, App.

After interrogators questioned Al-

Nashiri

s

intelligence value, CIA Headquarters sent an untrained, unqualified,

. uncertified, and unapproved officer to be Al-Nashiri's new interrogator at BLUE.

SSCI Report at 68-69, App. 142-43.

Al-Nashiri was

kept continually hooded, shackled, and naked. CIA-OIG Review if 92, App.II 142-

7




31/95


43;

He was regularly strung up

on

the wall

overnight.

Id

Al-Nashiri was regularly forced into stress positions prompting a

Physician's Assistant to express concern that Al-Nashiri's anns might be

dislocated. CIA-OIG Review

9 7

App.II 145.

While prone,

thi interrogator

menaced Al-Nashiri with a handgun. CIA-OIG Report App.II 158. The

interrogator racked the handgun once or twice close to Al-Nashiri's head. CIA

OIG Review App.II 142-43.

The

nterrogator also

threatened to get your mother in here, in an Arabic dialect implying

he

was from

a country where it was common to rape family members in front detainees. CIA

OIG Review App.II 144

~ h s threats were coupled with forced bathing with a wire

brush to abrade the skin, CIA-OIG Review

App.II 145; App.II 74. There is also evidence AI-Nashiri was, in fact, forcibly

18




32/95


sodomized, possibly under the pretext ofa cavity search that was done with

~ e x c e s s i v e force. SSCI Report at 100 n.584.

(W

Soon after Al-Nashiri arrived at BLUE, the on-site interrogators

assessed Al-Nashiri to

be

cooperative. SSCI Report at 67, App. 141. BLUE

persoIUlel cabled back to CIA Headquarters that Al-Nashiri was cooperative and

truthful and their consensus was that Al-Nashiri was a compliant detainee

who was not withholding important threat information.

Id

at 68. Headquarters

responded, When we are able to capture other terrorists based on his leads and to

thwart future plots based on his reporting, we will have much more confidence that

he is, indeed, genuinely cooperative on some level.

Id

Headquarters insisted that

interrogators subject Al-Nashiri to harsher treatment. Id CIA interrogators at

BLUE protested that Al-Nashiri was providing logical and rational explanations

to questions and recommended against reswning enhanced measuresH unless

Headquarters had evidence that Al-Nashiri was lying.

Id

[W]ithout tangible proof

of lying or intentional withholding, however, we believe employing enhanced

measures will accomplish nothing except show [al-Nashiri] that

he

will be

punished whether

he

cooperates or not

...

[I]f

subjected to indiscriminate and

prolonged enhanced measures, there is a good chance he will

...

suffer the sort of

permanent mental harm prohibited by the statute. Id

19




33/95


(U) -r'he

CIA s Chiefof

Interrogations, a person whose presence

had

previously caused Al-Nashiri to tremble

in

fear, threatened to resign if further

torture was ordered. SSCI Report,

at

71, App. 145.

He

wrote that torturing Al

Nashiri is

,;a

train wreak [sic] waiting to happen and I intend to

get

the hell offthe

train before it happens Id He then wrote a cable to be entered for the record

that

we

have serious reservations with the continued use of enhanced techniques

with [Al-Nashir

i]

and its long term impact on him. [Al-Nashiri] has

been

held for

three months in very difficult conditions, both physically

and

mentally . . [Al

Nashiri] has

been

mainly truthful and is

not

withholding significant information.

To continue

to

use enhanced technique[s] without clear indications that he [is]

withholding important info is excessive

. . .

Also both C/CTC/RG

and HVT

interrogator who departed [BLUE] in [REDACTED] January, believe continued

enhanced methods

may

push [al-Nashiri] over the edge psychologically. Id

Headquarters ordered Al-Nashiri to be tortured further. Id

at

72.

20




34/95


( l:H; FOUO After six months

n

Al-Nashiri was rendered to a foreign

country. SSCI Report, t 139,

App

213. Little is known about Al-Nashiri s time

there. However, based on independent

i n v e s t ~ g a t i o n

defense counsel has identified

this country and

can

proffer that it has

r e ~ u l a r l y

been cited

by

the State Department

for its routine use

of

torture and extrajudicial homicide.

2




35/95


~ - - l - ? l d ~ I n

October 2004,

n

assessment

of

Al-Nashiri

conducted by CIA Headquarters concluded that Al-Nashiri provided essentially

no actionable information and ''the probability that he has much more to

contribute is low. SSCI Report at 73, App. 147.

22




36/95


3




37/95

._

...._ .... ~ . -

. . ~ _

..

-

UN

CLASSI

FI

ED FOR PUBLIC RELEASE

U

f8lsi\BBW9 8

D

~ r o e e d i n Leading to this Case.

) In May 2003, Al-Nashiri was named

an

unindicted co-conspirator

in

the

still-pending

SONY

Indictment. Supp.Pet.

if

13. It alleges that he was part of a

terrorist group in Yemen that conspired

to bomb

marine vessels, including the USS

COLE

. Al-Nashiri

has never

been alleged to have

had

any involvement

in

the

September 11th attacks

or

to have done

anyt

hing

in

the context

of

or

associated

with

the war

in Afghanistan

or

any other hostilities.

In

September 2006, however,

rather than being transferred to the Southern District

of

New York, Al-Nashiri was

brought

back to Guantanamo. Supp.Pet. lf13.

'

U) In

December 2008, the Convening Authority issued orders

to

create a

military commission

to try

Al-Nashiri

on

charges drawn from the SDNY

Indictment. Supp.Pet.

~ 1 4

Proceedings were

to

begin in February 2009. Following

the

inauguration o.f President Obama, prosecutors sought a contmance

of

he

arraignment. This was denied

be

cause it

wou

ld violate t

he

the commissions'

30-day deadline

on

arraignments.

Id

The Convening Authority responded

by

withdrawing the charges without prejudice, disbanding the commission. Id

~

years later,

the

Convening Authority issued Convening Order

11-02, creating a second military commission

to try

Al-Nashiri. Supp.Pet. if23-24.

These

charges were also carried over from the

SONY

indictm

en

t, supplemented

by

charges relating

to

the bombing ofa

Fre

nch tanker

off

the coast

of Yemen

in 2002.

24

Uf

f81 shtJ01fffiJ8

UNCLASSIFIED FOR PUB

LI

C RELEASE



38/95


In 2014,

the

military commission dismissed these additional charges after

the

prosecution declined to put on evidence establishing jurisdiction over thern.

AE168G/AE241C, at 5 (Aug. 11, 2014), App. 96.

1

U Al-Nashiri moved the military commission to d i s ~ i s s on the ground that

Convening

Order

11-02

was ultra vires

because none of

the

offenses occurred in

the context of

or

were associated with hostilities.

The

government contended that

the

military commission was not authorized to declare convening orders ultra

vires

that 950p(c) placed no limits on what

was

triable by military commission,

and

that the

existence ofhostilities should instead be read as an implicit element

of

the offenses to

be

tried. AEl 04A

at

9 (Sep. 13, 2012), App.

78.

The military

commission ruled, inter alia that 950p(c) was satisfied by the Convening

Authority s

having issued Convening Order 11-02 without be ing personally

countermanded y the now-sitting President. AE104F

iJ4

(Jan. 15, 2013), App. 90.

~ Al-Nashiri filed a declaratory judgment action challenging the

Convening Author ity's authority under 10 U.S.C. 9SOp(c) as well as Article III

and

the

Fifth

and

Sixth Amendments. The government succeeded

in

having the

case dismissed \Ulder 28 U.S.C. 224l(e)(2). Al-Nashiri v. MacDonald 741 F.3d

1

( ~ ) I n

September 2014,

the

prosecution noticed

an

interlocutory appeal of the

decision to dismiss these charges. Due to irregularities

in

the composition of the

CMCR panel, all proceedings have been stayed since November 2014. ee n

re:

Al-Nashiri 791F.3d71 (D.C. Cir. 2015).

25

t l @ J s i \ ~ f H f H 9 ~




39/95

-

-

-

-

-

~ .

.

. .- ..

. ......

- - ..


U t@tsn tnPtts8

1002, 1009 (9th Cir. 2013). In arguing for dismissal, the government insisted,

if

any

court were to

have

jurisdiction over plaintiffs interlocutory challenge, it

would

be

the

D.C.

Circuit

on

mandamus in relationship to its exclusive

jurisdiction. Al-Nashiri v. MacDonald Case No. 12-35475,

Resp

. Br., at 31 n.11

(9th Cir., Nov.

20,

2012), App. 98.

U)

Al-Nashiri then raised this claim

by

filing a supplemental petition for

habeas corpus and requesti

ng

a preliminary injunction. Again, the government

urged dismissal because

ifany

Court were to have jurisdiction over Petitioner. s

challenge, it would

be

the D.C. Circuit on mandamus in relation

to

its exclusive

j urisdiction. Al-Nashiri v. Obama et al. Case No. 08-1207, Resp. Opp., at 9 n.7

(D.D.C. May 15, 2014), App. 100. The District Court granted leave to file a

supplemental petition, but denied Al-Nashiri 's motion for a prelimi

nary

injunction

as

moot

after granting Respondents' cross-motion

to

hold Al-Nashiri's case in

indefinite abeyance.

l

-Nashiri v. Obama 76 F.Supp.3d 218 (D.D.C. 2014).

( ~

Al-Nashiri filed a timely notice of appeal. Al-Nashiri v. Obama et al.

Case No. 15-5020 (D.C. Cir., Jan. 26, 2015). Contemporaneously, he petitioned for

a

wr

it

of

mandamu

s.

Jn

re: Al-Nashir

i

Case

No.

15-1023

(D.C. Cir., Jan.

28,

2015).

He

moved to consolidate the two

case

s,

which

this Court granted.

26

UtJ0LA88lf:IEB .

UNCLASSIFI ED //FOR PUBLIC RELEASE



40/95

UNCLASSI

ED FOR PUBLIC RELEASE

lR #0Is/tB8IFIBB

ftijSUMM RYOF RGUMENT

(el')

Outside the unique context

of

courts-martial, the

use of d

hoc military

tribunals for the prosecution

of

crimes violates the Constitution's requirement that

the trial of all crimes be in courts

of

law. U S Const.,

art.

III 2, cl. 3. Even in

wartime, the use of military commissions to adjudicate battlefield offenses is a

reluctant exception to our nation's commitment to judicial trials. Crimes, such as

those charged here, which were allegedly committed far from any battlefield -

indeed before any hostilities

existed

are not triable

by the

military. Congress

codified that principle when it enacted 10 U.S.C. 950p(c).

And

the Department

of

Defense violated that principle when it issued Convening Or


41/95

UNCLASSIFIED FOR UBLIC R LE

S

E

U1 f@lst'tBBIPil 8

l:Ji} First

the merits are clear. No hostilities existed in Yemen at the time

of

Al-Nashiri s alleged crimes. This is conclusively established by the public acts of

the political branches. Indeed, the very charges at issue in

this

case have been the

subject ofa federal indictment since 2003. The Department of Defense s effort to

remove a capital case from a federal court violates the express limits Congress has

placed

on

its authority to conduct military trials,

i t

usurps the judicial power that

the

Constitution reserves to the courts of law, and it illegally attempts to apply the

laws of war to a time and place in which the President and Congress collectively

concluded that peace prevailed.

t


42/95

CLASSIFIED//FOR PUBLIC RELEASE

Ul f@Lt t

Btl

R

~ T h i r d everyone benefits from

prompt

judicial review of

he

single

question of law before this Court. The existence of hostilities

broadly

impacts the

daily

lives

of

citizens

throughout

this

country.

And in

this case,

where the

existence of hostilities authorizes the Department of

Defense

to remove a capital

trial from a federal court to an d hoc military commission, the stakes

to

the

separation-of-powers and the public's interest

in

the

Executive's

compliance with

limits imposed by Congress could

not

be graver. n this case, like Hamdan v

Rumsfeld

548 U.S. 557, 589 (2006), the government as much as the accused

benefits from knowing

in advance

whether this capital trial

has any

basis in

law.

And the

public benefits from legal certainty on a question as consequential as

where

and when the United States is at war.

etJ finally,

the District

Court s

denial

of a

preliminary injunction

and

issuance

of

an indefinite stay

in

Al-Nashiri'

s habeas case is reversible error. The

District Court failed

to

conduct even the most rudimentary analysis

of

whether

an

injunction was warranted. Instead, it granted Respondents cross-motion for a stay

on abstention grounds. This was a per se abuse of discretion. Moreover, its

decision to abstain

in deference

to

the

military commission proceedings

is

contrary

to

case law

frm

this Court, which it neither cited nor distinguished, and it

is fundamentally incompatible

with

the duty that rests on the courts,

in war

as

much

as in peace, to decide cases properly within their jurisdiction.

29

l @fsA88JFtee

CLASSIFIEO//FOR PUBLIC RELEASE



43/95


Ul f8bAB8IFI'5f J .

. ARGUMENT

I.

~ S T N D R D

OF REVIEW.

(ff) This case asks whether a federal agency has exceeded the athority

granted by Congress and allowed under the Constitution. A court deci9es de

novo

whether

an

agency has acted within the bounds of congressionally delegated

authority. Harry Edwards, Linda Elliott

&

Marin Levy, Federal Courts Standards

o

Review

168 (2d ed. 2013). Because the Department

of

Defense has effectively

removed a criminal case

from

a federal court into a military tribunal, this Court

subjects that effort to divest an Article tribunal

of

its judicial power to strict

scrutiny. Toth v. Quarles 350 U.S. 11, 42 (1955). That single question

of

law

is

asked via two procedural vehicles: injunctive reliefpursuant to habeas corpus and

a writ

of

mandamus to the

military

commission convened under this Court's

appellate jurisdiction.

(U, For

an injunction via habeas, the petitioner must establish [1] that he is

likely

to

succeed

on

the merits, [2] that he is likely

to

suffer irreparable harm in the

absence ofpreliminary relief, [3] that the balance

of

equities tips in his favor, and

[4] that an injunction is in the public interest.

Aamer v Obama

742 F.3d 1023,

1038 (D.C. Cir. 2014). These factors are evaluated

on

a 'sliding scale.

avis

v.

PBGC 571F.3

d1288,

1291-92 (D.C. Cir. 2009). This Court reviews a district

court's weighing

of

the four preliminary injunction factors ... for abuse

of

30 .

lMftilsA88lflH 8

UNCLASSI IED FOR PUBLIC RELEASE



44/95


t Jiit

f@fs/t IBIFI e

discretion Legal

conclusions-including

whether the movant has established

irreparable harm-are reviewed de novo.

Id.

(quotations omitted).

~ o r

relief

under mandamus, the petitioner must. demonstrate three

conditions are met. He must 1 have no other adequate means to attain the relief

he desires; 2) show that his right to issuance of the writ is clear and

indisputable; and 3) even

if

the first two prerequisites have been met, the issuing

court, in the exercise of its discretion, must be satisfied that the writ is appropriate

under the circumstances.

Al-Nashiri

791 F.3d at 78 (quoting

Cheney

v US

Dist.

Court for Dist. o Columbia 542 U.S.

3 6 7 ~

380-81 (2004)).

U) While the respective standards of review and burdens of persuasion for

mandamus and habeas are distinct, in this case, rel ief under both turns

on

the same

three considerations:

the

merits, the harm in the absence of relief, and the public's

interest in prompt adjudication. The only meanmgful difference is the weight of

Al-Nashiri's u r d e ~ Instead of a likelihood

of

success for injunctive relief via

habeas, he must show a clear entitlement to relief under mandamus. Instead of a

balance ofequities in his favor, he must demonstrate irreparable harm that cannot

be avoided through other adequate means. And instead of showing that the public

interest is consistent with injunctive relief, he must convince this Court that

injunctive relief via mandamus is an appropriate exercise of its discretion.

31

wt feEsA Wl@




45/95



46/95



47/95



48/95



49/95



50/95



51/95



52/95



53/95



54/95



55/95


U f

@ Si iO

SII IE

iThis wholesale deference to the Convening Authority on

such

a

fundamental question

of

law is

not

only baseless, it demonstrates the military

conunissions' basic inability

to

self-correct against overreaching.

The 2009

Act

does not say that the Convening Authority declares when and where hostilities

existed or

that

the military commission members that

the

Convening Authority

has

selected,can decide its existence as a question of fact. t instructs the Department of

Defense that it may only convene military commissions to

try

offenses

triable

by

militaty commission as provided

in

this chapter, 10 U.S.C. 948b(b), and Han

offense ... is triable

by

military commission under this chapter only if

he

offense

is

committed

in

the context of and associated with hostilities.

Id.

950p(

c)

(emphasis added). Trying someone for an offense that is not

triable

violates

explicit statutory [and] constitutional guarantee[s]

that

trial will

not

occur.

Midland Asphqlt Corp. v. United States, 489 U.S. 794, 801 (1989).

(U) The Convening Authority is owed no deference when construing express

statutory limits

on

his authority.

He is

not given

the

authority to declare

ex post

facto

wars. The Department

of

Defense may not bootstrap

itself

into an

area in

which it has no jurisdiction(.] Federal Maritime Comm n

v.

Seatrain Lines, 411

U.S. 726, 745 (1973). f he peculiarity ofGuantanamo is stripped away, this case

is no different.than In r Bituminous Coal Operators Ass n, 949 F.2d 1165 (D.C.

Cir. 1991), where this Court grant[ed] the writ not because the district judge

4

U1 f Lt tBOIFH l8




56/95


l f

8 1 s t t 8 E I I F I ~ B

simply 'abused his discretion,' but because

he

has no discretion to impose on

parties against their.will

a

surrogate judge,' a substitute from the private bar

charged with resporlsibility for adjudication

of

the case.

Id

at 1168.

U) Evaluated under the likelihood

of

success standard applicable to

preliminary injunctions or the higher standard applicable to writs

of

mandamus,

Al-Nashiri's entitlement

to

relief is clear. The political branches were collectively

unwilling to recognize the applicability

of

the law

of

war in Yemen

at

any time

relevant to the charges against the accused. Those charges cannot therefore be tried

y a law-of-war military commission.

4

IB E I:slr88fFEEB




57/95

UNCLASSI

FI E

I FOR PUBLIC RELEASE

ut f8Is/t88IFtr 8

m.

(Uj '.AL-NASHIRI

WILL SUFFER IRREPARABLE

HARM

IF

HE IS TRIED FOR CAPITAL CRIMES

OVER WHICH A

MILITARY

COMMISSION

HAS

NO

PLAUSIBLE

CLAIM OF JURISDICTION.

(H)

1 N a s h

will suffer three distin

ct

irreparab

le

harms if

relief

is denied.

First,

he

will

be permanently deprived

of

a statutory and constitutional right not to

be tried

by military

commission for offenses that are not triable in a

military

commission. Second,

he

will be depriv

ed

of

he ability to mount an effective

defense in a capital trial. h i r d ~ given the location and unusual character of hese

proceedings

as

well

as

the extreme

circumstances of his

prior

custody,

Al-Nashiri

will

suffer

unique and.

irreparable psychological harms that promise

to

permanently

compromise his ability

to

defend his

legal

rights.

A.

~ A J . . : N a s h i r i

will lose his statutory

and

constitutional

right not to

be

tried

in a

tribunal

that

lacks

any

colorable claim

of

jurisdiction.

ttJ If Al-Nashiri is tried by a mil itary commission for offenses that both the

Congress and the Supreme Court have specifically stated

are

not so triable, he will

suffer

a

p ~ r m a n e n t loss ofhis right

not

to

be

tried. This Court recognized this

precise legal harm in Hamdan, when it ruled that "[s]etting aside the judgment

after

trial

and

conviction

insufficiently

redresses the defendanrs

right

not

to

be

tried by a tribunal that has no jurisdiction." Hamdanv. Rumsfeld, 415 F.3d 33,

36

(D.C. Cir. 2005) rev don other grounds 548 U.S. 557 (2006) (citing bney

v

United States, 431 U.S.

651, 662

(1977)).

For

the same

reason, many of

the

44

Uf

@JS/t8

8

IFlt 8




58/95

.

...

UNCLASSIFIED//F

OR

PUBLIC RELEASE

Supreme Court's landmark cases on

military

jurisdiction came to the Court as pre-

trial challenges. See e.g.

eid

v Covert 354 U.S. 1 (1957); Toth

v

Quarles 350

U.S.

11

(1955);

Ex parte Quirin

317 U.S. 1 (1942).

lsl) ;J o be sure,

not

every objection

an

accused

may

have to

his

trial

implicates

a

right not to be

tried.

Here, however, Al-Nashiri has made

a

substantial

showing that the constitutional and statutory prerequisites for military

jurisdiction

over

battlefield conduct

are

completely absent. This is clear

enough

from

Congress' choice

of

the word Htriable in 950p(c ), as opposed to punishable or

liable

or any other term that

would

afford an individual a right not to be

convicted,

as

opposed to the right not to be tried at all.

See Abney

43

l

U.S.' at 662,

n .7 (pre-trial judicial review is necessary when a statute conferred

...

a right not

to face trial at all

unless

the terms

of

he statute were satisfied).

(U)

On two separate occasions, the Supreme Court has dealt with the

precise

claim raised here on pre-trial habeas. In Hamdan one

of

the petitioner's primary

challenges was to the military'sjurisdiction over pre-September 11th

conduct.

While the majority decision relied on the commission's other statutory defects, a

plurality looked to these deficiencies

in

the time and place allegations

' '

and found

that

they

underscore - indeed are symptomatic

of

-

the

most serious defect

of

his

charge: The offense

it

alleges is not triable by law-of-war military

commis

sion.

Hamdan

548 U.S. at 600 (plurality op.). And

eid

the

Court

took up a pre-trial

45

t f81S/tSBW8 8




59/95

-

.

..

.

UNCLASSI

FI ED

I/FOR PUBLIC RELEASE

habeas challenge to whether military dependents were subject to military

jurisdiction for capital crimes committed outside an area where active hostilities

were

underway{.

)

Reid

354 U.S.

at

35.

~ n the

military's very assertion

of

urisdiction exceeds

the

statutory

and constitutional limits on what is triable

by

the military, that violates an explicit

statutory [and] constitutional guarantee that trial

will

not occur.''

idlandAsphalt

489 U.S.

at

801;

see also Al-Nashiri

791 F.3d at 80 n.6. Al-Nashiri therefore

asserts one 0f a small but well-established class

of

cla.ims that implicate a righi

not to be tried that is irretrievably lost if it

can

be vindicated only aft.er trial.

B. -fWt-The substantial risk of retrial in a capital case imposes

irreparable harms to Al-Nasbiri's ability to defend himself.

(U) ['rial

by

a military commission that lacks

all

jurisdiction also imposes

irreparable practical harms

that

cannot be adequately remedied

by the

prospect of

post-trial review. I fAl-Nashiri prevails on the single question of Jaw at the center

of

this case, either

now or

on appeal many years from

now

,

he

faces the prospect

of

trial under the

SDNY

Indictment. Postponing judicial review simply

f 0rces him to

endure a gratuitous capital trial and years of post-trial delay first.

(U The

irreparable practical harms the pros

pect of

retrial imposes have been

recognized

as

a basis for relief n far less extreme circumstances.

In

Rafeedie v.

LN.S.

880 F.2d 506, 517-18 (D.C. Cir. 1989), this Court affirmed

the

necessity

of

46

TJl

JUL

z ll

ll R




60/95


w

f

8fstr08WI 8

injunctive reliefbecause

an

individual facing a summary deportation r o ~ e e i n g

would be irreparably and seriously injured

if

it turned out that it lacked

jurisdiction over him. This was

be

c

au

se forcing the petitioner to wait for

post

hoc

review presented him with a Catch-22.

Ifhe

fully defended himself in the

deportation hearing, the government would know his defense in advance of any

subsequent ... proceeding. Id. Ifhe held back and bet on his jurisdictional

challenge, he ri sk[ed] forsaking his only opportunity to defend himselfon the

merits. Id.

U) Given the possibility

of

being executed if he is convicted, Al-Nashiri

lacks the ability a ,ion-capital military c_ommission defendant might have to take

such risks. The prospect ofdeath forces grisly choices that distort n accused's

trial strategy in ways

that

cannot be sufficiently corrected by post-trial review. See

ay v. Noia 372 U.S. 391, 439 (1963), abrogated on other grounds by Coleman v

Thompson 501 U.S. 722 (1991 ). A defendant facing the death penalty faces unique

practical and legally-cognizable disadvantages that result from being

forced

into trial tactics that

are

designed to avoid the death penalty but that have the

consequence

of

making conviction more likely.

United States

v

Quinones

313

F.3d

49, 59 (2d Cir. 2002);

see also United States

v

Harper

729

F.2d

1216, 1223

(9th Cir

. 1984).

47




61/95


W)

The

awesomeness of he death penalty has no less impact when

applied in Guantanamo.

Grisham.

361 U.S. at 280. Every decision Al-Nashiri

makes

in

the military commission falls into the Cat.ch-22 this Court identified in

f e d i e . As an ethical matter,. his lawyers must be significantly more vigilant

about litigating all potential issues at all levels in a capital case than in any other

case. American

ar

Association Guidelines for the Appointment

and

Performance

of

Defense Counsel in Death Penalty Cases 3 Hofstra L. Rev. 913, 1028 (2003).

Yet, looming

in

the background is the knowledge that prevailing post-trial on the

single issue raised here will leave

him vulnerable to the SDNY Indictment. Despite

the

fundamental jurisdictional doubts that hang over this case, Al-Nashiri must

mount a full

and

complete defense in Guantanamo while at

the

same time the

government

can

treat this military commission trial as a dress rehearsal.

( ')

' '

Time

and

again the [Supreme] Court has condemned procedures in

capital cases that might be completely acceptable in an ordinary case.

Caspari

v.

Bolden 510 U.S. 383, 393 (1994) (quotations omitted). In fact, when the Supreme

Court first invalidated military jurisdiction on the very claim Al-Nash.iri now

raises, Justice Harlan concurred separately.to emphasize that

[s]o

far as capital

cases are concerned, ... the law is especially sensitive t6 demands for that

procedural fairness which inheres in a civilian trial where the judge and trier of fact

are not responsive to the command

of

the convening

a u t h o r i t y . ~ Reid

354 U.S.

at

8

f

@ J s ' t S B I F l f ~

UNCLASSIFIEO FOR PUB C RELEASE



62/95


ut T8ts1 1BBIPl 98

77

(Harlan, J.,

c o n c u r r i n g ) ~

see

also Grisham

361 U.S.

at

280

( ' ~ [ T ] h e

death

penalty is so irreversible that a dependent charged with a capital crime must have

the benefit

of

a jury. ).

C. ~ i v e n the unusual

nature

of the proceedings in

Guantanamo,

Al

Nashiri

will suffer

irreparable

psychological

harms i

he

is

subjected to a

gratuitous death

penalty trial.

~ A l N a s h i r i

faces unique and substantial harms that result from t

2015-11-20 al-nashiri merits brief [redacted]

Documents