In Re: Abd Al-Rahim Hussein Al-Nashir

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2016 Decided August 30, 2016

No. 15-1023

IN RE: ABD AL-RAHIM HUSSEIN MUHAMMED AL-NASHIRI,

PETITIONER

On Petition for Writ of Mandamus

and Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01207)

______

Consolidated with 15-5020

Michel D. Paradis, Counsel, Office of the Chief Defense

Counsel, argued the cause for petitioner-appellant. With him

on the briefs was Richard Kammen. Nancy Hollander entered

an appearance.

Somnath Raj Chatterjee was on the brief for amici curiae

Retired Military Admirals and Generals in support of

appellant.

Robert Barton was on the brief for amicus curiae

Professor David W. Glazier, Loyola Law School of Los

Angeles, in support of petitioner-appellant.

2

David H. Remes and John T. Parry were on the brief for

amicus curiae Physicians for Human Rights in support of

petitioner.

Eric S. Montalvo was on the brief for amicus curiae

National Institute of Military Justice in support of petitioner.

Joseph F. Palmer, Attorney, U.S. Department of Justice,

argued the cause for respondent-appellee. With him on the

brief were Benjamin C. Mizer, Principal Deputy Assistant

Attorney General, Matthew M. Collette, Sonia K. McNeil,

Michael Shih, and John F. De Pue, Attorneys, and Steven M.

Dunne, Chief, Appellate Unit.

Before: TATEL and GRIFFITH, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge TATEL.

GRIFFITH, Circuit Judge: Abd Al-Rahim Hussein

Muhammed Al-Nashiri is the alleged mastermind of the

bombings of the U.S.S. Cole and the French supertanker the

M/V Limburg, as well as the attempted bombing of the U.S.S.

The Sullivans. Together, the completed attacks killed 18 crew

members and injured dozens more. The government charged

Al-Nashiri with nine offenses for his role in the attacks and

convened a military commission to try him. His trial, and any

subsequent appeals, will be governed by the Military

Commissions Act, in which Congress strengthened the

procedural protections and review mechanisms for military

commissions in response to the Supreme Court’s guidance in

3

Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Al-Nashiri now

seeks to avoid the structure Congress has created. He petitions

for a writ of mandamus to dissolve the military commission

convened to try him and appeals the district court’s denial of

his motion to preliminarily enjoin that trial. We deny the

petition for mandamus relief and affirm the district court.

I

A

At this pretrial stage, we recount the details of Al-

Nashiri’s alleged offenses based on the information provided

in the government’s charges. Al-Nashiri, a Saudi national, is a

member of al Qaeda who orchestrated the attempted bombing

of The Sullivans in January 2000 and the successful bombings

of the Cole in October 2000 and the Limburg in October

2002.

Al-Nashiri met with Osama bin Laden and other senior

members of al Qaeda in 1997 or 1998 to plan a “boats

operation” that would attack ships in the Arabian Peninsula.

The government argues that while bin Laden was planning the

“boats operation,” he was also coordinating the “planes

operation” that would unfold on September 11, 2001. At bin

Laden’s direction, Al-Nashiri and his alleged co-conspirator,

Walid bin Attash, traveled to Yemen around 1998 to prepare

for the boats operation. Al-Nashiri scouted the region and

monitored ship traffic. He and his co-conspirators ultimately

focused on Aden Harbor and bought and stored explosives to

carry out an attack there. In 1999, after bin Attash was

arrested, bin Laden instructed Al-Nashiri to take control of the

operation. Al-Nashiri and his co-conspirators recruited others

to the cause, bought a boat, and obtained false identification

documents.

4

Under Al-Nashiri’s direction, his co-conspirators steered

an explosive-filled boat toward The Sullivans in January 2000

while the warship was refueling. But the boat carrying the

explosives foundered in Yemen’s Aden Harbor, thwarting the

plan. Al-Nashiri and his co-conspirators recovered the boat

and confirmed that the explosives could be used in future

attacks. Sometime after the failed attack, Al-Nashiri returned

to Afghanistan to meet with bin Laden and other high-ranking

members of al Qaeda and to receive explosives training from

an al Qaeda expert.

By the summer of 2000, Al-Nashiri had returned to

Yemen to carry out preparations for a second attack in Aden

Harbor. He and his co-conspirators rented a house from which

they could surveil the harbor, repaired and tested the attack

boat, filled it with explosives, and arranged for the attack to

be videotaped. Sometime around September 2000, Al-Nashiri

reported to bin Attash—who by then had been released from

jail and was in Afghanistan—that the operation was ready and

that he had chosen suicide bombers to carry it out. Before the

attack, Al-Nashiri returned to Afghanistan at bin Laden’s

direction and told him the bombing was imminent.

Adhering to Al-Nashiri’s instructions, in October 2000

the suicide bombers launched the boat—again filled with

explosives—and piloted it toward the Cole, which was

refueling in Aden Harbor. The bombers gave friendly gestures

to crew members and steered their boat alongside the Cole,

where they detonated the explosives. The blast killed 17 crew

members and injured at least 37, and left a hole in the Cole’s

side measuring about 30 feet in diameter.

After the attack, Al-Nashiri began planning another

bombing. He and his co-conspirators acquired another boat

5

and explosives, with Al-Nashiri directing the transfer of

money to fund the attack. In October 2002, suicide bombers

under Al-Nashiri’s direction drew their explosive-filled boat

alongside the French supertanker the Limburg near the port of

Al Mukallah, Yemen. The explosion blasted a hole in the

ship’s hull, killing one crew member and injuring 12. Some

90,000 barrels of oil also spilled from the tanker into the Gulf

of Aden.

Local authorities arrested Al-Nashiri in Dubai in 2002

and turned him over to U.S. custody. He was transferred to

the Guantanamo Bay Naval Base in 2006. A year later, a

Combatant Status Review Tribunal determined that Al-

Nashiri was detainable as an “enemy combatant” under the

Authorization for Use of Military Force that Congress had

passed and the President had signed in response to the attacks

of September 11, 2001. Al-Nashiri v. MacDonald, 741 F.3d

1002, 1005 (9th Cir. 2013). The AUMF permits the President

to use “all necessary and appropriate force” against the

“nations, organizations, or persons” he determines were

responsible for the 9/11 attacks. Pub. L. No. 107-40, § 2(a),

115 Stat. 224, 224 (2001). Al-Nashiri filed a petition for a

writ of habeas corpus in the United States District Court for

the District of Columbia in 2008, challenging various aspects

of his detention at Guantanamo. Three years later, with Al-

Nashiri’s habeas petition still pending, the Defense

Department convened a military commission to try him for

offenses including terrorism, murder in violation of the law of

war, and attacking civilians. In re Al-Nashiri, 791 F.3d 71, 75

(D.C. Cir. 2015). The government is seeking the death

penalty.

6

B

The current system of military commissions at

Guantanamo Bay “is the product of an extended dialogue

among the President, the Congress, and the Supreme Court.”

Al-Nashiri, 791 F.3d at 73. After the passage of the AUMF in

September 2001, the President began detaining enemy

combatants and trying them by military commission at

Guantanamo. The Supreme Court considered the legality of

the commissions established by the President in Hamdan v.

Rumsfeld, 548 U.S. 557 (2006), and held that they exceeded

certain limits Congress had previously imposed on the

President’s authority. Specifically, the Court concluded that

the President’s commissions did not comply with procedural

protections set out in the Uniform Code of Military Justice

(UCMJ) and the Geneva Conventions. See id. at 613, 620-28.

But four Justices explained that “[b]ecause Congress []

prescribed these limits [on presidential authority], Congress

can change them, requiring a new analysis consistent with the

Constitution and other governing laws.” Id. at 653 (Kennedy,

J., concurring).

In response, Congress passed the Military Commissions

Act (MCA), which established a system of military

commissions and largely exempted them from the

requirements of the UCMJ and the Geneva Conventions. The

MCA created the Court of Military Commission Review

(CMCR) and empowered it to review judgments of military

commissions. Al-Nashiri, 791 F.3d at 74. Under the current

version of the MCA, as revised in 2009, the CMCR is

composed of military and civilian judges who sit in panels of

at least three. See 10 U.S.C. §§ 950d, 950f. It reviews

questions of both fact and law. See id. § 950f. Our court has

authority under the MCA to review military-commission

7

convictions, as approved by the CMCR. Id. § 950g(a). We

may review the CMCR’s legal conclusions, including the

sufficiency of the evidence supporting the verdict. Id.

§ 950g(d).

The MCA provides that military commissions have

jurisdiction to try “alien unprivileged enemy belligerent[s],”

id. § 948c, for “any offense made punishable” by the MCA,

“whether such offense was committed before, on, or after

September 11, 2001.” Id. § 948d. The statute then lists 32

offenses that are “triable by military commission.” Id. § 950t.

It further provides that “[a]n offense specified in this

subchapter is triable by military commission under this

chapter only if the offense is committed in the context of and

associated with hostilities.” Id. § 950p(c). Hostilities are

defined as “any conflict subject to the laws of war.” Id.

§ 948a(9).

Al-Nashiri’s military-commission proceedings were

placed on hold in early 2015, when the presiding military

judge granted Al-Nashiri’s motion to abate the commission’s

proceedings while the government pursued interlocutory

appeals of two rulings. By statute, the government may take

an interlocutory appeal of any ruling by a military judge that

terminates commission proceedings on a charge or that

“excludes evidence that is substantial proof of a fact material

in the proceeding.” 10 U.S.C. § 950d(a)(1)-(2).

In the first interlocutory appeal, the government

contested the military judge’s dismissal in 2014 of the charges

stemming from the bombing of the Limburg. Al-Nashiri, 791

F.3d at 75. The military judge dismissed these charges

because the government had not introduced evidence to

support its claim that the military commission had jurisdiction

8

over offenses related to an attack on a French vessel. Two

military judges and one civilian judge were assigned to hear

this appeal. In the second interlocutory appeal, the

government challenged a 2015 ruling by the military judge

that forbade it from introducing evidence that Al-Nashiri’s

actions endangered the lives of foreign nationals not onboard

the Cole.

Al-Nashiri sought a writ of mandamus from our court in

late 2014 to halt the first of these interlocutory appeals. He

argued in part that because the two military judges on his

CMCR appellate panel were “principal” officers, they should

have been appointed to the CMCR by the President and

confirmed by the Senate. See U.S. CONST. art. II, § 2, cl. 2;

Al-Nashiri, 791 F.3d at 82. Their assignment to the CMCR by

the Secretary of Defense violated the Constitution, Al-Nashiri

asserted. See Al-Nashiri, 791 F.3d at 82. We denied his

petition because Al-Nashiri had not shown he was clearly and

indisputably entitled to mandamus relief, but we observed that

the President and Senate could “put to rest any Appointments

Clause questions regarding the CMCR’s military judges” by

nominating and confirming them. Id. at 86. The President

chose to take that tack. At the government’s request—which

Al-Nashiri did not oppose—the CMCR stayed its proceedings

in both interlocutory appeals in June 2015 while the

confirmation process was underway.

The Senate confirmed two military judges in April 2016,

and the CMCR lifted its stay at the government’s request,

even though Al-Nashiri asked the CMCR to continue the stay.

See Order, United States v. Al-Nashiri, No. 14-001

(U.S.C.M.C.R. May 18, 2016). The CMCR then ruled on Al-

Nashiri’s interlocutory appeals in June and July 2016,

reversing the military judge’s dismissal of the charges related

9

to the Limburg and its order excluding evidence. After the

resolution of these appeals, the government asked the military

commission to proceed. The commission granted that request,

and the government states that commission proceedings will

resume in September 2016. See Rule 28(j) Letter of Resp’t

(filed Aug. 5, 2016).

C

In the present case, Al-Nashiri does not challenge the

structural or procedural features of the military commissions

created by Congress. He does not assert that the commissions

are unconstitutional or that he was improperly classified as an

“alien unprivileged enemy belligerent” subject to their

jurisdiction. 10 U.S.C. § 948c. Instead, he argues that the

offenses for which he has been charged are not triable by a

military commission under the MCA because they were not

“committed in the context of and associated with hostilities.”

Id. § 950p(c). Because his alleged offenses had no nexus to

hostilities, he contends, they are not war crimes, the only type

of crime over which a military commission has jurisdiction

under the Constitution.

Al-Nashiri first advanced these arguments in a motion to

dismiss in 2012, but the military judge denied the motion

without prejudice. According to the military judge, the

existence of hostilities was a mixed question of law and fact.

To the extent that it was a pure question of law, he deferred to

what he called the “implicit” determinations of the political

branches that hostilities existed at the time of Al-Nashiri’s

alleged offenses. To the extent that the existence of hostilities

was a question of fact, the government would need to prove

that at trial.

10

Before us, Al-Nashiri advances his claims in two separate

actions, which are consolidated here. The first began in 2014,

when Al-Nashiri received permission from our district court

to amend the habeas petition he filed in 2008. His amended

petition asked the district court to enjoin his trial by the

military commission and enter a declaratory judgment that his

conduct did not occur in the context of hostilities. He also

moved for a preliminary injunction to prevent his trial before

the military commission until the district court ruled on his

habeas petition. The government opposed this motion and

moved to hold the habeas action in abeyance to allow the

commission proceedings and corresponding appeals to run

their course. To support its motion to hold the case in

abeyance, the government relied upon Schlesinger v.

Councilman, 420 U.S. 738 (1975), where the Supreme Court

directed federal courts to generally refrain from enjoining

ongoing courts-martial. See id. at 756-58. According to the

government, Councilman likewise supports abstaining from

interfering with ongoing proceedings in a military

commission.

The district court found that adjudicating Al-Nashiri’s

habeas petition would unduly interfere with the proceedings

of the military commission and accordingly granted the

government’s motion to hold the case in abeyance pending

the resolution of his military-commission trial and any

subsequent appeals. Al-Nashiri v. Obama, 76 F. Supp. 3d 218,

221-23 (D.D.C. 2014). The district court then denied as moot

Al-Nashiri’s motion to preliminarily enjoin his military-

commission trial pending the resolution of his habeas petition.

Id. at 222 n.3. On appeal, Al-Nashiri challenges the district

court’s denial of preliminary injunctive relief, arguing

primarily that abstention was inappropriate and that the

11

district court therefore should have decided his motion on the

merits.

The second action before us is a petition for a writ of

mandamus. Al-Nashiri asks us to dissolve the military

commission convened to try him, also on the ground that his

conduct did not take place in the context of hostilities.

We have jurisdiction to review the district court’s denial

of preliminary injunctive relief under 28 U.S.C. § 1292(a)(1). 1

We have jurisdiction to issue a writ of mandamus to a military

commission under the All Writs Act, 28 U.S.C. § 1651(a),

and the 2009 MCA, 10 U.S.C. § 950g(a). See Al-Nashiri, 791

F.3d at 76-78 (“[T]his Court has jurisdiction to issue a writ of

mandamus in aid of our appellate jurisdiction of military

commissions and the CMCR.”). We affirm the district court

and deny Al-Nashiri’s petition for mandamus relief.

1

We need not weigh in on whether the district court had

subject matter jurisdiction to adjudicate Al-Nashiri’s motion for

preliminary injunctive relief. Although the government suggests in

its briefing before us that Al-Nashiri’s claim does not sound in

habeas—a claim that calls into question the district court’s statutory

jurisdiction, see 28 U.S.C. § 2241(e)(2)—we affirm the denial of

that motion for reasons we explain below. Because the motion was

properly denied on threshold grounds, we need not consider the

district court’s subject matter jurisdiction any further. See Sinochem

Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007)

(“[A] federal court has leeway ‘to choose among threshold grounds

for denying audience to a case on the merits.’” (quoting Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999))).

12

II

We first consider Al-Nashiri’s claim that the district court

erred in denying his motion to preliminarily enjoin his trial

before the military commission pending the resolution of his

habeas petition. The district court denied the motion based on

its decision to hold Al-Nashiri’s habeas petition in abeyance

pending the resolution of his case in the commission. Thus, to

determine whether this denial was proper, we must examine

whether the district court erred in staying Al-Nashiri’s habeas

case. 2

We emphasize at the outset that the question in this case

is not whether Al-Nashiri will be able to make his “hostilities”

argument to an Article III court. The MCA provides an appeal

as of right to our court. The question in this case is when that

argument to us may occur. The district court decided that

Article III review should occur at the time that Congress

contemplated: after any conviction and accompanying appeal

in the military system. We generally review such decisions to

stay a case “in favor of an ongoing proceeding” for abuse of

discretion. Handy v. Shaw, Bransford, Veilleux & Roth, 325

F.3d 346, 349 (D.C. Cir. 2003). “Whether the lower court

2

Finality principles would normally prevent us from

reviewing a decision to stay a case. But when the denial of a

preliminary injunction—which is a reviewable final judgment, see

28 U.S.C. § 1292(a)(1)—is based on the decision to stay a case, we

can review the propriety of the stay. See Privitera v. Cal. Bd. of

Med. Quality Assurance, 926 F.2d 890, 892-93 (9th Cir. 1991). To

treat a stay as unreviewable under such circumstances “would mean

that the denial of the preliminary injunction would be effectively

unappealable because a reversal on that issue would have no

effect.” Id. at 892.

13

applied the proper legal standard in exercising that discretion,

however, is a question of law reviewed de novo.” Id. We

assume these standards apply here. We first ask whether the

district court “applied the proper legal standard” in deciding

to abstain from hearing Al-Nashiri’s habeas petition. In other

words, did the district court commit legal error in extending

the abstention principles established in Schlesinger v.

Councilman, 420 U.S. 738 (1975), which dealt with courts-

martial, to Al-Nashiri’s pretrial challenge to the subject matter

jurisdiction of a military commission? 3 Concluding that the

district court did not err as a matter of law, we then ask

whether its ultimate decision to abstain based on any

circumstances unique to Al-Nashiri’s case was appropriate.

Because we conclude that it was, we affirm the district court.

A

The district court did not err, as a matter of law, in

extending the principles announced in Councilman to Al-

Nashiri’s case.

3

As an initial matter, we note that Al-Nashiri and the

government disagree about the role that the hostilities requirement

plays in the MCA. Al-Nashiri argues that the existence of hostilities

is a legal question that does not hinge on the facts proved at trial.

For its part, the government contends that the hostilities

requirement is a “necessary element of the offense with which he

has been charged” that the government must prove at trial. We

assume Al-Nashiri is correct that the hostilities requirement is a

legal question going to the commission’s subject matter

jurisdiction. Even so, as we will explain, the district court did not

err in permitting the military commission to resolve the question in

the first instance.

14

i

Federal courts generally “have a strict duty to exercise

the jurisdiction that is conferred upon them by Congress.”

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996).

This duty “is not, however, absolute.” Id. In the context of

criminal prosecutions, federal courts routinely decline to

adjudicate petitions that seek collateral relief to prevent a

pending prosecution. See, e.g., Henry v. Henkel, 235 U.S.

219, 228-30 (1914) (petition seeking habeas relief); JMM

Corp. v. District of Columbia, 378 F.3d 1117, 1120 (D.C. Cir.

2004) (petition seeking injunctive and declaratory relief). This

practice stems in part from a “basic doctrine of equity

jurisprudence,” which provides that courts should not exercise

their equitable discretion to enjoin criminal proceedings, as

long as the defendant has an adequate legal remedy in the

form of trial and direct appeal. Jarkesy v. SEC, 803 F.3d 9, 26

(D.C. Cir. 2015); see also Deaver v. Seymour, 822 F.2d 66,

68-69 (D.C. Cir. 1987). Thus, where the issue the petitioner

challenges can be litigated in pretrial motions and raised as a

defense at trial, federal courts typically require the petitioner

to navigate that process instead of skirting it. See Jarkesy, 803

F.3d at 26.

In Councilman, the Supreme Court extended this basic

doctrine to a new context: courts-martial. The case involved a

court-martial convened to try an Army officer for selling and

possessing marijuana. At the time, Supreme Court precedent

required that an alleged offense be “service connected” to be

constitutionally triable by court-martial. See O’Callahan v.

Parker, 395 U.S. 258, 272-73 (1969) (establishing “service

connection” rule), overruled by Solorio v. United States, 483

U.S. 435 (1987). Councilman filed suit in district court to

enjoin the court-martial from proceeding, arguing that the

15

military lacked jurisdiction to try him because his alleged

offense was not connected to his service in the army. See

Councilman, 420 U.S. at 741. The district court granted the

injunction, and the Tenth Circuit affirmed. Id. at 739-40. But

the Supreme Court reversed, holding that “when a serviceman

charged with crimes by military authorities can show no harm

other than that attendant to resolution of his case in the

military court system, the federal district courts must refrain

from intervention, by way of injunction or otherwise.” Id. at

758.

The Court grounded its decision in the corresponding

abstention doctrine for state criminal prosecutions announced

four years earlier in Younger v. Harris, 401 U.S. 37 (1971).

Abstention in favor of ongoing state criminal proceedings in

Younger was based on two considerations: the traditional rule

that courts of equity should not enjoin criminal prosecutions

where an adequate remedy at law exists, see id. at 43-44, and

interests of “comity,” perhaps better described in that case as

“federalism,” id. at 44-45. Interference in ongoing state

proceedings would disrupt the careful balance between state

and federal power. See id.

The Councilman Court acknowledged that the “peculiar

demands of federalism” were not applicable to courts-martial,

but it explained that “factors equally compelling” justified its

decision to allow courts-martial to run their course without

interference by the federal courts. 420 U.S. at 757. As the

Supreme Court explained in Hamdan v. Rumsfeld, 548 U.S.

557 (2006), Councilman relied on two “comity” factors other

than federalism, focusing on the military interests advanced

by allowing courts-martial to proceed uninterrupted and on

the adequacy of the court-martial system in protecting service

members’ rights:

16

First, military discipline and, therefore, the efficient

operation of the Armed Forces are best served if the

military justice system acts without regular interference

from civilian courts. Second, federal courts should

respect the balance that Congress struck between military

preparedness and fairness to individual service members

when it created “an integrated system of military courts

and review procedures, a critical element of which is the

Court of Military Appeals consisting of civilian judges

completely removed from all military influence or

persuasion . . . .”

Id. at 586 (quoting Councilman, 420 U.S. at 758) (internal

citations omitted). As the Court later explained, “abstention in

the face of ongoing court-martial proceedings is justified by

our expectation that the military court system established by

Congress—with its substantial procedural protections and

provision for appellate review by independent civilian

judges—‘will vindicate servicemen’s constitutional rights.’”

Id. (quoting Councilman, 420 U.S. at 758).

In Hamdan, the Supreme Court considered whether to

extend the principles set out in Councilman to abstain from

adjudicating a Guantanamo detainee’s challenge to his trial

before a military commission. To reiterate, the commission

set to try Hamdan was convened by the President without

specific congressional authorization. In that context, the Court

declined to abstain, concluding that neither of Councilman’s

comity considerations was present. As to the first, the Court

said simply that Hamdan was “not a member of our Nation’s

Armed Forces, so concerns about military discipline do not

apply.” Id. at 587. And as to the second, the Court explained

that the military commission trying Hamdan was “not part of

the integrated system of military courts, complete with

17

independent review panels, that Congress has established.” Id.

Unlike Councilman, the Court emphasized, Hamdan had no

right to appeal a conviction to a review body that was

“structural[ly] insulat[ed] from military influence.” Id. Rather,

any conviction would be reviewed only by Executive Branch

officials: first a panel of three military members selected by

the Secretary of Defense, then the Secretary himself, and

finally the President. Id. And because these review bodies

lacked the structural independence of the Court of Appeals for

the Armed Forces, whose civilian judges review court-martial

convictions, they bore “insufficient conceptual similarity to

state courts to warrant invocation of abstention principles.” Id.

at 588. The Court further explained that the government had

not identified any other “important countervailing interest”

that justified abstaining. Id. at 589 (quoting Quackenbush,

517 U.S. at 716).

The Hamdan Court instead determined that Ex parte

Quirin, 317 U.S. 1 (1942), was the most relevant precedent.

In Quirin, rather than decline to intervene in ongoing

proceedings of a military commission, the Court convened a

special Term to hear the case and expedited its review,

explaining that the issues were of great public importance. See

id. at 19. The Hamdan Court closed its discussion by noting:

“While we certainly do not foreclose the possibility that

abstention may be appropriate in some cases seeking review

of ongoing military commission proceedings (such as military

commissions convened on the battlefield), the foregoing

discussion makes clear that, under our precedent, abstention is

not justified here.” 548 U.S. at 590.

18

ii

Much has changed since Hamdan. Within four months of

the Supreme Court’s opinion—and in direct response to it—

Congress passed the MCA, which established enhanced

procedural protections and rigorous review mechanisms for

military commissions. The committee report accompanying

the House version of the MCA indicated that the legislation

was an effort to respond to Hamdan, in which “[t]he Court []

suggested that the President could ask the United States

Congress to authorize commission rules that diverge from the

UCMJ, provided that they were consistent with the

Constitution and other laws.” H.R. REP. NO. 109-664, pt. 1, at

4-5 (2006). And when signing the 2006 MCA, President Bush

explained that the Supreme Court had ruled that the military

commissions he had established after September 11 “needed

to be explicitly authorized by the United States Congress.”

See Statement by President George W. Bush upon Signing S.

3930, 2006 U.S.C.C.A.N. S61 (Oct. 17, 2006). The President

explained that he “asked Congress for that authority, and they

[] provided it” by passing the MCA. Id.

Al-Nashiri and amici urge that despite the significant

changes enacted in the MCA, abstention remains as

inappropriate here as it was in Hamdan. They argue that Al-

Nashiri, like Hamdan, is not a member of the Armed Forces,

and commissions are fundamentally different from courts-

martial. By contrast, the government contends that the MCA

established the rigorous system of review found lacking in

Hamdan and that the district court was warranted in allowing

the military commission to proceed. It insists that while

Councilman does not directly control, it is the closest

analogue in our jurisprudence, because comity considerations

19

“equally compelling” as those in Councilman, 420 U.S. at

757, point in favor of abstention here.

To determine whether “equally compelling” factors exist

here, we must identify the precise role played by

Councilman’s two comity considerations. Evaluating those

considerations, we conclude that to abstain we must be

assured of both the adequacy of the alternative system in

protecting the rights of defendants and the importance of the

interests served by allowing that system to proceed

uninterrupted by federal courts. The comity considerations in

Councilman established both of these elements. With respect

to adequacy, the Court did not evaluate the on-the-ground

performance of courts-martial in protecting service members’

rights. Instead, it “assumed” the sufficiency of the structure

Congress created, with its substantial procedural protections

and provision for appellate review by judges insulated from

military influence. Id. at 758; see also Hamdan, 548 U.S. at

586 (characterizing Councilman’s reasoning as such). 4 And as

4

Although the Court in Councilman assumed that the

alternative judicial system at issue would adequately protect

defendants’ rights, we doubt that it would have reached the same

result if the plaintiff had identified flaws in that system that would

prevent him from fully litigating his defenses. Indeed, case law

indicates that abstention is appropriate only where a plaintiff has “a

full and fair opportunity to litigate” his claims in the alternative

forum. JMM Corp. v. District of Columbia, 378 F.3d 1117, 1127

(D.C. Cir. 2004) (quoting Ohio Civil Rights Comm’n v. Dayton

Christian Sch., Inc., 477 U.S. 619, 627 (1986)); see also Browder v.

City of Albuquerque, 787 F.3d 1076, 1084 (10th Cir. 2015)

(Gorsuch, J., concurring) (explaining that abstention is

inappropriate where state processes will not remedy the plaintiff’s

injury because they are inadequate either on their face or in

practice).

20

for importance, the Court explained that abstention would

serve a vital interest by permitting the military to discipline

soldiers without immediate interference by federal courts.

Councilman, 420 U.S. at 757.

The Court’s emphasis on these two considerations made

sense in light of its abstention jurisprudence, developed in the

context of state-court proceedings. That precedent made clear

that abstention was appropriate only (1) where the petitioner

would have an adequate remedy in the alternative forum, see

Kugler v. Helfant, 421 U.S. 117, 124 (1975) (“The policy of

equitable restraint [in favor of state criminal proceedings] is

founded on the premise that ordinarily a pending state

prosecution provides the accused a fair and sufficient

opportunity for vindication of federal constitutional rights.”);

Younger, 401 U.S. at 45 (“The accused should first set up and

rely upon his defense in the state courts . . . unless it plainly

appears that this course would not afford adequate

protection.” (quoting Fenner v. Boykin, 271 U.S. 240, 243-44

(1926))), and (2) where abstention would “clearly serve an

important countervailing interest,” Allegheny Cty. v. Frank

Mashuda Co., 360 U.S. 185, 189 (1959), such as reducing

friction between federal and state governments, see Younger,

401 U.S. at 44 (emphasizing the need to “respect [] state

functions” by avoiding pretrial intervention in state criminal

prosecutions). The Councilman Court simply applied these

central considerations to the context of courts-martial.

Taking our cue from Councilman, then, we ask two

questions to determine whether any sufficiently “compelling”

factors justified the district court’s decision to abstain. First,

we consider whether the system enacted to adjudicate Al-

Nashiri’s guilt will adequately protect his rights. And second,

we examine whether an “important countervailing interest”

21

justifies the decision to avoid the district court adjudicating a

pretrial challenge to the subject matter jurisdiction of a

military commission created under the MCA.

iii

To answer the first question, we are convinced that the

MCA’s review structure is adequate because it is virtually

identical to the review system for courts-martial approved by

the Court in Councilman. In the MCA, Congress established

an “integrated” scheme dictating how enemy belligerents are

to be tried and obtain appellate review, Councilman, 420 U.S.

at 758, and two Presidents sanctioned this approach—

President Bush in 2006, when the MCA was first enacted, and

President Obama in 2009, when it was revised. Pursuant to

that structure, Al-Nashiri faces a trial with a military judge

presiding and a “jury” that, in capital cases, generally consists

of twelve military officers known as “members” of the

military commission. 10 U.S.C. §§ 948m, 949m(c). If he is

convicted, the convening authority—the Defense Department

official who initially referred the case to trial—may review

the guilty finding and set it aside, or reduce it to a finding of

guilty of a lesser-included offense. Id. § 950b. The convening

authority must review a sentence to approve, disapprove,

commute, or suspend it in whole or in part. Id. A final guilty

finding, as modified by the convening authority, will then be

reviewed by the CMCR unless the defendant properly waives

this right of review. Id. §§ 950f, 950c. The CMCR is

composed of both military and civilian judges and has the

power to review factual and legal questions alike. Id. § 950f.

The defendant may appeal the CMCR’s decision to our court,

and we are empowered to review all questions of law,

including the sufficiency of the evidence. Id. § 950g. Finally,

22

our ruling can be challenged via petition for writ of certiorari

in the Supreme Court. Id. § 950g(e).

These review structures “closely (and intentionally)

mirror[] the current structure for . . . review of courts-

martial.” Stephen I. Vladeck, Exceptional Courts and the

Structure of American Military Justice, in GUANTANAMO AND

BEYOND 163, 175 (Fionnuala Ni Aolain & Oren Gross eds.,

2013). Not only does the composition of the commission itself

closely mirror that of a court-martial—both have twelve

members in capital cases and a presiding military judge—but

the structure of appellate review is virtually identical across

the two systems. The “scope of the CMCR’s post-conviction

review is a word-for-word copy” of the portion of the UCMJ

that sets out the authority of each service’s Court of Criminal

Appeals, the military body that reviews court-martial

convictions. Id. Compare 10 U.S.C. § 950f, with id. § 866.

Similarly, the authority given to this court to review the

CMCR’s decision is as broad as the authority that the UCMJ

gives the Court of Appeals for the Armed Forces, the tribunal

that Councilman approved as sufficiently “removed from []

military influence or persuasion,” 420 U.S. at 758 (citing

Noyd v. Bond, 395 U.S. 683, 694-95 (1969)). Compare 10

U.S.C. § 950g(d), with id. § 866(c).

The similarity of the two systems’ review mechanisms

strongly suggests that, if the review procedure for courts-

martial is considered adequate to protect defendants’ rights,

the same should be true of the review procedure for military

commissions. Indeed, in one sense the review structure for

military commissions is more insulated from military

influence than is the structure for courts-martial. The judges

on our court, unlike those on the Court of Appeals for the

Armed Forces, enjoy Article III’s guarantees of life tenure

23

and salary protection, further assuring that our review is not

swayed by political pressures. See Hamdan, 548 U.S. at 675-

76 (Scalia, J., dissenting).

We do not overlook the fact that although the review

structures are virtually identical, the evidentiary and

procedural rules in a military-commission trial differ in some

regards from those in courts-martial. Even so, Al-Nashiri’s

trial before a military commission will include a number of

significant procedural and evidentiary safeguards. Among

other things, he will have the right to be represented by

counsel, 10 U.S.C. § 949c, be presumed innocent, id. § 949l,

obtain and offer exculpatory evidence, id. § 949j, call

witnesses on his behalf, id., and challenge for cause any of the

members of the military commission and the military judge,

id. § 949f. In fact, Al-Nashiri does not argue before us that

any evidentiary or procedural defects will prevent the military

commission and various appellate bodies from fully

adjudicating his defense that his conduct occurred outside the

context of hostilities. Cf. JMM Corp., 378 F.3d at 1127 (“For

Younger abstention to be appropriate in the face of pending

state proceedings, the federal plaintiff must ‘have a full and

fair opportunity to litigate’ its constitutional claims in those

proceedings.” (quoting Ohio Civil Rights Comm’n, 477 U.S.

at 627)). We therefore conclude that, at least where a

defendant identifies no such defect, the MCA’s “integrated

system of military courts and review procedures,”

Councilman, 420 U.S. at 758, is sufficiently adequate to point

in favor of abstention.

Al-Nashiri argues against this conclusion by identifying

various features of military commissions that, in his view,

suggest that they are deficient as compared to the court-

martial system. According to Al-Nashiri, the commissions

24

established by the MCA lack the established track record that

courts-martial had at the time of Councilman. He also points

to two instances in which our court overturned military-

commission judgments on appeal. But Al-Nashiri does not

argue that these features render military commissions

unlawful or will prevent him from presenting a full defense.

Instead, by pointing to these alleged shortcomings, Al-Nashiri

asks us to do what the Supreme Court notably did not do in

Councilman: determine whether pretrial intervention is

warranted by examining the on-the-ground performance of

the system that Congress and the Executive have established.

See 420 U.S. at 758 (“[I]mplicit in the congressional scheme

embodied in the [UCMJ] is the view that the military court

system generally is adequate to and responsibly will perform

its assigned task. We think this congressional judgment must

be respected and that it must be assumed that the military

court system will vindicate servicemen’s constitutional

rights.” (emphases added)). In the absence of any claim that

the shortcomings to which Al-Nashiri points render the

congressional scheme unlawful or will prevent Al-Nashiri

from fully defending himself, the district court did not err in

deeming that scheme adequate.

iv

We next ask whether an “important countervailing

interest” permits a federal court to decline to adjudicate a

defendant’s pretrial claim that a military commission lacks

subject matter jurisdiction to try his offense. It does. By

providing for direct Article III review of Al-Nashiri’s

jurisdictional challenge on appeal from any conviction in the

military system, Congress and the President implicitly

instructed that judicial review should not take place before

that system has completed its work. And where this judgment

25

was made out of concern for national security needs—an

arena in which the political branches receive wide

deference—we must follow their directive. We turn now to

examining the vital interest we identify: the need for federal

courts to avoid exercising their equitable powers in a manner

that would unduly impinge on the prerogatives of the political

branches in the sensitive realm of national security. 5 Comity

demands restraint in such circumstances, just as it requires

federal courts to avoid interfering with the functions of states

and the military. See, e.g., Wash. Research Project, Inc. v.

Dep’t of Health, Educ. & Welfare, 504 F.2d 238, 253 (D.C.

Cir. 1974) (“Considerations of inter-branch comity impel us

to withhold coercive orders that are not demonstrably

necessary.” (emphasis added)).

Congress—with the approval of two Presidents—

exercised its legitimate prerogatives when it decided, in

response to Hamdan, that the ordinary federal court process

was not suitable for trying certain enemy belligerents.

Therefore, Congress crafted a separate scheme under which

5

Habeas corpus “is, at its core, an equitable remedy,” Schlup

v. Delo, 513 U.S. 298, 319 (1995), as is the injunctive and

declaratory relief that Al-Nashiri’s habeas petition requests, see

Samuels v. Mackell, 401 U.S. 66, 72 (1971). Thus, like the Court in

Councilman, the district court here faced the question whether to

exercise its equitable jurisdiction to intervene in a pending criminal

prosecution. We assume that the form of relief Al-Nashiri seeks—a

writ of habeas corpus—does not affect our analysis of the interests

justifying abstention, and Al-Nashiri does not argue otherwise. Cf.

In re Justices of the Superior Court Dep’t of the Mass. Trial Court,

218 F.3d 11, 17-18 (1st Cir. 2000) (collecting cases for the

principle that “the federal courts have routinely rejected petitions

for pretrial habeas relief” on Younger grounds, even though

Younger dealt with a motion for injunctive relief).

26

they would be tried and potentially convicted. Longstanding

historical practice supports trying such enemy belligerents by

military commission, see, e.g., Quirin, 317 U.S. at 28-29, and

the scheme Congress crafted in the MCA contains substantial

additional protections as compared to the commissions used

in past conflicts. One key difference, as we have explained, is

that the MCA allows defendants an appeal as of right to our

court. Article III courts therefore play a far more robust role

in overseeing the actions of modern military commissions

than they did in the past. See, e.g., Johnson v. Eisentrager,

339 U.S. 763, 787 (1950) (“Correction of [military

commissions’] errors of decision is not for the courts but for

the military authorities which are alone authorized to review

their decisions.” (quoting In re Yamashita, 327 U.S. 1, 8

(1946))). They also play a much larger part than they do in the

review structure for courts-martial, which provides no appeal

as of right to an Article III court.

Crucially, while the scheme Congress created in the

MCA incorporates Article III review, it also delays it until a

specific point. Before an Article III appellate court may step

in, a defendant must first be tried and convicted in the military

system, the convening authority must have approved the

conviction, and the defendant must appeal the conviction to

the CMCR or affirmatively waive his right to do so.

Ordinarily, when Congress instructs that adjudication of

certain types of cases should begin in specialized, non-Article

III tribunals and end with review in an Article III court, we

suppose that Congress intended for litigants to proceed

exclusively through that scheme. See City of Rochester v.

Bond, 603 F.2d 927, 931 (D.C. Cir. 1979). In other words, by

providing for Article III involvement at a particular point,

Congress “implicitly” signals that Article III courts should get

involved no sooner. Jarkesy, 803 F.3d at 15. Litigants may

27

not ordinarily seek to prevent the proper operation of the

congressional scheme by pursuing equitable relief in district

court.

We are particularly confident that Congress did not

intend to allow a defendant to halt the workings of a military

commission by challenging in federal court an issue that

could just as easily be considered by the commission and

reviewed by a federal appellate court: the commission’s own

subject matter jurisdiction. The structure of the MCA makes

this clear. For starters, the MCA explicitly empowers military

commissions to make findings sufficient to determine their

own jurisdiction, see 10 U.S.C. § 948d, and permits a

presiding military judge to “hear[] and determin[e] motions

raising defenses or objections which are capable of

determination without trial of the issues” bearing on guilt or

innocence, id. § 949d. These provisions suggest “[b]y

implication” that jurisdictional challenges are not ordinarily to

be raised pretrial in district court. Deaver, 822 F.2d at 70; cf.

id. at 69-70 (explaining that the existence of a procedure

allowing defendants to move to dismiss an indictment pretrial

suggests that defendants may not mount a collateral equitable

challenge to the indictment on the same ground).

Moreover, a military judge’s order denying a motion to

dismiss charges on jurisdictional grounds cannot be appealed

to us until after final judgment. See Khadr v. United States,

529 F.3d 1112, 1114-15 (D.C. Cir. 2008). Our court has

“exclusive jurisdiction to determine the validity of a final

judgment rendered by a military commission,” as approved by

the convening authority, once “all other appeals under this

chapter have been waived or exhausted.” 10 U.S.C.

§ 950g(a)-(b). An order denying a motion to dismiss charges

is not a “final judgment” under 10 U.S.C. § 950g(a), not least

28

because it has not been approved by the convening authority.

See Khadr, 529 F.3d at 1115-16. District courts would

“undermine the final judgment rule” laid out by Congress

were they routinely to entertain motions for equitable relief of

the sort Al-Nashiri seeks, “with [their] attendant rights of

appeal.” Deaver, 822 F.2d at 71.

Heeding the political branches’ instruction as to the

timing of Article III review qualifies as an “important

countervailing interest” warranting abstention, at least where

that instruction is based on those branches’ assessment of

national security needs. In the realm of national security, the

expertise of the political branches is at its apogee. See Hamdi

v. Rumsfeld, 542 U.S. 507, 531 (2004) (plurality opinion)

(“Without doubt, our Constitution recognizes that core

strategic matters of warmaking belong in the hands of those

who are best positioned and most politically accountable for

making them.”); Al-Bihani v. Obama, 590 F.3d 866, 875

(D.C. Cir. 2010) (noting “the wide deference the judiciary is

obliged to give to the democratic branches with regard to

questions concerning national security”); Hamad v. Gates,

732 F.3d 990, 1006 (9th Cir. 2013) (“Congress’s decisions

with respect to [Guantanamo] detainees are at the core of

Congress’s authority with respect to ‘the conduct of foreign

relations [and] the war power.’” (quoting Mathews v. Diaz,

426 U.S. 67, 81 n.17 (1976))). Acting on the guidance set out

in Hamdan, the President sought authority for the military-

commission trials that “he believe[d] necessary,” 548 U.S. at

636 (Breyer, J., concurring), and Congress gave it to him,

deciding in the process that Article III courts should not step

in before the military system has issued a final decision. The

district court did not err by declining to disturb this joint

determination.

29

Al-Nashiri and amici raise several counterarguments,

asserting that the interests supporting abstention in the

military-commission context are less significant than those in

the court-martial context. Al-Nashiri contends initially that

Councilman does not apply because he is not a service

member; and, as the dissent likewise points out, concerns of

military discipline are therefore inapplicable. True enough.

But nothing in the Supreme Court’s case law requires the

interests justifying the district court’s decision to be identical

to those in Councilman; it is enough that they are “equally

compelling.” Councilman, 420 U.S. at 757; see also Hamdan,

548 U.S. at 589. To require identical interests would be to

suggest that abstention principles developed in the context of

criminal proceedings in one forum can never be extended to

another. But this cannot be correct. Indeed, Councilman itself

was an outgrowth of Younger abstention, which dealt with

ongoing criminal proceedings in state courts and had nothing

to do with military discipline.

To be sure, the Court in Hamdan did not consider

interests other than military discipline in determining that it

would hear the habeas petition before it. It noted simply that

Hamdan was not a member of the Armed Forces, and that

concerns of military discipline therefore did not apply. But the

Court did not hold that abstention is appropriate only where

concerns of military discipline are present. To the contrary, it

left open the possibility that some other “important

countervailing interest” might justify abstention in a future

case. Hamdan, 548 U.S. at 589 (quoting Quackenbush, 517

U.S. at 716). The Court had no occasion in Hamdan to

consider whether the vital interest we have identified here

would point in favor of abstention, because Congress had not

specifically authorized Hamdan’s military commission—

much less incorporated Article III courts into the applicable

30

review scheme. Indeed, the Supreme Court in Hamdan

expressly declined to consider whether Congress’s provision

of “limited” Article III review in the Detainee Treatment Act

of 2005 pointed in favor of abstention, because Hamdan had

no right to such review under that Act. Id. at 588 n.19. That

Hamdan did not consider interests other than military

discipline, therefore, does not preclude us from doing so.

Al-Nashiri and amici further assert that abstention applies

only to court systems that are wholly separate from the federal

judicial establishment. They note that decisions of courts-

martial and state courts are not directly reviewed by federal

courts; moreover, these alternative judicial systems have a

long history of operating undisturbed by federal intervention.

Therefore, they argue, while the Court in Councilman was

concerned with Article III courts intruding where they as a

whole had no place, no similar concern is at play here, where

Congress built Article III courts into the review mechanism.

Comity interests are not implicated by such a structure,

according to Al-Nashiri and amici.

Our role in reviewing military-commission convictions

does, of course, distinguish the MCA’s review structure from

that of state courts and courts-martial. But this distinction

points away from pretrial intervention rather than toward it.

For starters, while courts often invoke the term “comity” to

refer to respect for separate judicial systems such as state

courts, the term is more capacious than that. As we have

explained, we have invoked inter-branch comity to avoid

exercising our equitable discretion to interfere with the

prerogatives of coordinate branches of government. Comity

can also justify a district court’s discretionary decision to

“transfer, stay, or dismiss a case that is duplicative of a case

filed in another federal [district] court,” even though both

31

courts are part of the same judicial system. Federal-Comity

Doctrine, BLACK’S LAW DICTIONARY (10th ed. 2014); see,

e.g., Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-

95 (9th Cir. 1982).

Moreover, the eventual involvement of an Article III

appellate court lessens the need for immediate intervention

because an Article III court can remedy any errors on appeal.

Indeed, before cases like Younger and Councilman, the

traditional rule that equity should not interfere with a criminal

prosecution generally applied only to cases in which a

defendant had an adequate non-equitable remedy in a federal

court. See Trainor v. Hernandez, 431 U.S. 434, 441 (1977)

(explaining that “the existence of an adequate remedy at law

barring equitable relief normally would be determined by

inquiring into the remedies available in the federal rather than

in the state courts,” but Younger “broadened” the inquiry “to

focus on the remedies available in the pending state

proceeding”). If the availability of legal remedies in Article

III courts has historically barred criminal defendants from

receiving pretrial equitable relief, we do not see why in this

case the availability of such remedies would counsel in favor

of permitting pretrial relief.

Al-Nashiri and the dissent also contend that the military

possesses no special expertise in addressing questions related

to the laws of war. Thus, both argue, while part of the reason

for abstaining in Councilman was to defer to the military’s

expertise in handling criminal matters connected to military

service, no similar interest exists here. We are not convinced.

For one thing, Councilman set out a rule that applies

broadly—even to those claims that implicate military

expertise to a lesser degree. See Solorio, 483 U.S. at 436-37

(holding that courts-martial may try service members even for

32

crimes unrelated to their military service). For another,

Councilman suggested that expertise can be built over time;

thus, the relative novelty of the military commissions need not

necessarily count against them. See 420 U.S. at 758 (noting

that the civilian judges who reviewed court-martial

convictions “would gain over time thorough familiarity with

military problems”). And finally, Councilman cited military

expertise as just one of several practical benefits of

abstention. In addition to serving the needs of the military,

avoiding pretrial intervention also eliminates “duplicative

proceedings,” potentially “obviate[s] the need for judicial

intervention,” and “inform[s] and narrow[s]” eventual Article

III review. Id. at 756-58. These advantages apply in full force

here.

As in Councilman, then, an important countervailing

interest supported the district court’s decision to abstain from

hearing Al-Nashiri’s petition. 6

B

Having determined that the district court applied the

proper legal standard when it decided that it could abstain in

6

By holding that an important countervailing interest justified

the decision to abstain in this case, we do not suggest that a district

court may always abstain from exercising its equitable jurisdiction

simply because it perceives that some important interest would be

advanced by staying its hand. As the Supreme Court has made

clear, abstention is appropriate outside the criminal context only in

certain enumerated circumstances. See Sprint Commc’ns, Inc. v.

Jacobs, 134 S. Ct. 584, 593 (2013) (holding that Younger

abstention does not extend to state civil proceedings merely

because they implicate “important state interests” and provide an

“adequate opportunity to raise [federal] challenges”).

33

favor of ongoing military-commission proceedings, we next

examine whether its ultimate decision to abstain was

appropriate, in light of any features unique to Al-Nashiri’s

case. Al-Nashiri advances three arguments for why abstention

was inappropriate here; none has merit.

i

The Supreme Court has instructed that federal courts can

intervene in ongoing criminal proceedings in a few narrow

and limited circumstances. In particular, a federal court may

intervene where a plaintiff shows that “extraordinary

circumstances” both present the threat of “great and

immediate” injury and render the alternative tribunal

“incapable of fairly and fully adjudicating the federal issues

before it.” Kugler v. Helfant, 421 U.S. 117, 123-24 (1975)

(quoting Younger, 401 U.S. at 45, 53); see also Huffman v.

Pursue, Ltd., 420 U.S. 592, 601 (1975) (“[A] movant must

show not merely the ‘irreparable injury’ which is a normal

prerequisite for an injunction, but also must show that the

injury would be ‘great and immediate.’” (quoting Younger,

401 U.S. at 46)). Al-Nashiri contends that this exception to

abstention obligated the district court to intervene in his case

because his proceeding before the military commission will

cause him irreparable psychological harm and will require

him to divulge his defense in advance of a possible retrial in

federal district court. These harms, he asserts, amount to the

sort of “great and immediate” irreparable injury that the Court

has recognized could support a federal court’s decision not to

abstain in his particular case. Councilman, 420 U.S. at 756

(quoting Fenner v. Boykin, 271 U.S. 240, 243 (1926)).

Al-Nashiri’s argument is foreclosed by the Supreme

Court’s definition of what constitutes “great, immediate, and

34

irreparable” injury justifying a federal court’s intervention in

ongoing criminal proceedings. Moore v. Sims, 442 U.S. 415,

433 (1979); see also Councilman, 420 U.S. at 756. As the

Court explained in Councilman, “certain types of injury, in

particular, the cost, anxiety, and inconvenience of having to

defend against a single criminal prosecution, [cannot] by

themselves be considered ‘irreparable’ in the special legal

sense of that term.” 420 U.S. at 755 (quoting Younger, 401

U.S. at 46). Instead, abstention is appropriate where a plaintiff

“can show no harm other than that attendant to resolution of

his case in the military court system,” even though those

harms are “often of serious proportions.” Id. at 754, 758; see

also McLucas v. DeChamplain, 421 U.S. 21, 33 (1975)

(holding that avoiding the possibility of erroneous

incarceration throughout a court-martial proceeding does not

qualify as “irreparable injury” for purposes of abstention). Put

simply, Al-Nashiri’s alleged harms are “attendant to

resolution of his case in the military court system” and, as a

result, do not render abstention inappropriate here.

Councilman, 420 U.S. at 758.

Moreover, even setting this clear proscription aside, the

dissent’s argument that Al-Nashiri’s case could qualify for the

“extraordinary circumstances” exception is unavailing.

Focusing on the word “extraordinary,” the dissent makes a

sympathetic case that Al-Nashiri’s harms are different in both

kind and magnitude from those that he would experience in a

federal court or from the harms experienced by the average

criminal defendant. But that alone does not bring those harms

under the limited and narrow meaning of the exception.

Although the dissent may be correct that Councilman itself

had “no occasion to attempt to define those circumstances”

that might be sufficiently extraordinary to warrant abstention,

420 U.S. at 761, several subsequent cases have clarified the

35

scope of this exception. See Kugler, 421 U.S. at 124; Trainor

v. Hernandez, 431 U.S. 434, 441-42, 442 n.7 (1977); Moore,

442 U.S. at 433. For a plaintiff to come within the exception,

he must show both that he will suffer a “great and immediate”

harm absent federal-court intervention and that the alternative

tribunal is “incapable of fairly and fully adjudicating the

federal issues before it.” Kugler, 421 U.S. at 123-24. Al-

Nashiri’s allegations regarding his treatment during his

detention, while deeply troubling, do not provide any reason

to fear that he will not be given a fair hearing in the military

commission. See id. at 124. Instead, Al-Nashiri’s allegations

are about his particular vulnerabilities to a trial by a military

commission at Guantanamo Bay. Because they say nothing

about the competence of the military commission itself, those

harms do not meet the requirements of the “extraordinary

circumstances” exception.

The dissent responds that we need not feel bound by this

precedent because Al-Nashiri’s case is different. The cases

defining the “extraordinary circumstances” exception arose in

the context of Younger abstention, not abstention in favor of

courts-martial or military commissions, and therefore, the

dissent contends, the definition of extraordinary

circumstances articulated in the Younger cases does not apply

in the military context. 7 But Councilman is not as far removed

7

According to the dissent, Councilman’s exception to

abstention for “personal jurisdiction” challenges shows that we may

consider other factors that the Supreme Court has not yet identified.

But it is not clear that Councilman’s “personal jurisdiction”

exception is unique to courts-martial, as the dissent suggests.

Councilman grounded that exception in a right not to be tried, see

420 U.S. at 759, which courts have recognized in other contexts as

an “extraordinary circumstance” under Younger. See Gilliam v.

Foster, 75 F.3d 881, 904 (4th Cir. 1996) (en banc) (holding that

36

from Younger as the dissent suggests. As we explained above,

Councilman’s abstention discussion is based on the same

principles underlying Younger. See Councilman, 420 U.S. at

757 (determining that Younger principles “apply in equal

measure to the balance governing the propriety of equitable

intervention in pending court-martial proceedings”).

Accordingly, other circuits have concluded that Councilman

is simply an application of the Younger doctrine to the courts-

martial context. McCune v. Frank, 521 F.2d 1152, 1157 (2d

Cir. 1975) (“Younger is not limited to criminal proceedings.”

(citing Councilman)); Bowman v. Wilson, 672 F.2d 1145,

1156-59 (3d Cir. 1982); Lawrence v. McCarthy, 344 F.3d

467, 470 (5th Cir. 2003) (“The Supreme Court has since

applied Younger-abstention in various other contexts,

including that of Schlesinger v. Councilman . . . .”); Hennis v.

Hemlick, 666 F.3d 270, 274 n.5 (4th Cir. 2012) (“[T]he

Supreme Court extended Younger abstention to restrict

federal court intervention into on-going court-martial

proceedings.”). In following the lead of Younger and

Councilman here, we heed the Court’s guidance that the

exceptions it has crafted to abstention in favor of an ongoing

criminal proceeding are narrow. See Huffman, 420 U.S. at 602

(describing the “traditional narrow exceptions” to abstention

doctrine). What the dissent proposes would redefine the scope

of the “extraordinary circumstances” exception and create a

novel free-floating exception for psychological harms. Such

an approach belies the Court’s past treatment of the

exceptions to abstention, and, as a result, we will not expand

the “extraordinary circumstances” exception to include

Younger abstention did not apply where plaintiff alleged potential

Double Jeopardy Clause violations because “a portion of the

constitutional protection [the Clause] affords would be irreparably

lost if Petitioners were forced to endure the second trial before

seeking to vindicate their constitutional rights at the federal level”).

37

psychological harms that do not implicate the fairness of the

military-commission proceedings.

Before moving on to Al-Nashiri’s other arguments, we

again emphasize that Al-Nashiri’s sole claim in this appeal

relates to whether the district court erred in declining to hear

his challenge to the military commission’s subject matter

jurisdiction. Al-Nashiri does not argue that Congress

exceeded its constitutional authority in creating the military-

commission system under the MCA or in defining “alien

unprivileged enemy belligerent” in a manner that includes

him. Nor, to repeat, does he contend that any procedures of

the system Congress created in the MCA are unconstitutional

or will prevent him from fully litigating his jurisdictional

defense. He also makes no claim that delaying habeas review

in his case amounts to an unlawful suspension of the writ.

This is perhaps because the Supreme Court has explained in

the court-martial context that “a deferment of resort to the

writ until other corrective procedures are shown to be futile”

is “in no sense a suspension of the writ of habeas corpus.”

Gusik v. Schilder, 340 U.S. 128, 132 (1950). 8 Indeed, Al-

8

We take no stance on whether abstention could amount to a

suspension of the writ, as this issue is not properly before us. But

we observe that federal courts routinely decline to allow claims that

can be raised in pretrial motions and addressed on direct appeal to

instead be raised via pretrial habeas petition, whether trial is set to

take place in federal court, state court, or a court-martial. See, e.g.,

Henry v. Henkel, 235 U.S. 219, 229 (1914) (federal prosecution)

(“[T]he hearing on habeas corpus is not in the nature of a writ of

error nor is it intended as a substitute for the functions of the trial

court. . . . [A defendant] cannot, in either case, anticipate the regular

course of proceeding by alleging a want of jurisdiction and

demanding a ruling thereon in habeas corpus proceedings.”); In re

Justices of the Superior Court Dep’t of the Mass. Trial Court, 218

38

Nashiri does not dispute that the MCA provides substantial

“other corrective procedures,” including the right to appeal a

conviction to our court. Finally, to the extent that Al-Nashiri’s

arguments regarding psychological harm challenge his

treatment while in custody, nothing in our opinion forecloses

him from challenging those conditions by filing a habeas

petition in district court.

ii

Al-Nashiri next argues that post-trial Article III review

will come too late to vindicate his constitutional and statutory

“right not to be tried” by a military commission that lacks

subject matter jurisdiction over his offenses. See Councilman,

420 U.S. at 759. The district court’s decision to abstain

violated this right not to be tried, he contends. And because

this right will be lost at the moment his trial begins, he argues

that appellate review in our court cannot vindicate it.

In support, he points to the text of the 2009 MCA, which

provides that an offense “is triable by military commission

under this chapter only if the offense is committed in the

context of and associated with hostilities.” 10 U.S.C.

§ 950p(c) (emphasis added). He asserts that the use of the

word “triable” instead of “punishable” or “liable” suggests

F.3d 11, 17-19 (1st Cir. 2000) (state prosecution) (“[T]he federal

courts have routinely rejected petitions for pretrial habeas relief

raising any variety of claims and issues. . . . Defendants are not

entitled to consideration of their federal habeas claims until a time

when federal jurisdiction will not seriously disrupt state judicial

processes.” (internal quotation marks omitted)); Dooley v. Ploger,

491 F.2d 608, 610 (4th Cir. 1974) (court-martial prosecution)

(“Before seeking [habeas] relief from a district court, [a defendant]

must first exhaust his military remedies[.]”).

39

that Congress conferred a right not to be tried by a military

commission at all, rather than merely a right not to be subject

to a binding judgment by a commission. We understand his

constitutional claim to assert something similar: the military

commission has jurisdiction under Article I to try only war

crimes, which by definition must have a nexus to hostilities.

Whether Al-Nashiri locates his alleged right not to be tried in

the MCA or the Constitution, the crux of this “right” is that

Al-Nashiri is entitled to an initial determination in an Article

III court of whether his military commission has jurisdiction

over his offense. We disagree.

Some statutory and constitutional provisions indeed

provide express guarantees that trial will not occur. In such

cases, trial itself creates an injury that cannot be remedied on

appeal. But only a handful of such guarantees have been

recognized. The key question, then, is whether there is any

express statutory or constitutional language that gives Al-

Nashiri a right not to be tried, instead of simply a right not to

be subject to a binding judgment, should his alleged crimes

have taken place outside the context of hostilities. As the

Supreme Court has explained it:

There is a crucial distinction between a right not to be

tried and a right whose remedy requires the dismissal of

charges. A right not to be tried . . . rests upon an explicit

statutory or constitutional guarantee that trial will not

occur—as in the Double Jeopardy Clause (“nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb”), or the Speech or Debate Clause

(“[F]or any Speech or Debate in either House, [the

Senators and Representatives] shall not be questioned in

any other Place”).

40

Midland Asphalt Corp. v. United States, 489 U.S. 794, 801

(1989) (internal citations and quotation marks omitted). The

statutory language to which Al-Nashiri points might appear at

first blush to create such an explicit guarantee: it describes

when an offense is “triable” by military commission. 10

U.S.C. § 950p(c) (“An offense specified in [the MCA] is

triable by military commission . . . only if the offense is

committed in the context of and associated with hostilities.”).

But our case law demonstrates that the mere use of terms like

“triable” does not transform a right not to be subject to a

binding judgment into a right not to be tried.

Particularly instructive is our opinion in Khadr. There,

we held that an erroneous jurisdictional ruling against a

defendant in the military-commission system can be

adequately remedied on appeal from final judgment, despite

statutory language in the MCA that might suggest a defendant

was not triable by military commission. Khadr, 529 F.3d at

1117-18. The presiding military judge in Khadr had

determined that under the 2006 MCA, neither he nor the

military commission’s members had the power to find the

defendant an “unlawful” enemy combatant, as required for the

military to have jurisdiction over the defendant. Id. at 1114.

The military judge therefore dismissed the charges for lack of

jurisdiction. On appeal, the CMCR held that the military

judge could make the necessary jurisdictional finding and

remanded accordingly. Id. at 1115. The defendant petitioned

for interlocutory review of the CMCR’s decision.

This court rejected the defendant’s petition, explaining

that the CMCR’s “procedural decision, as well as any

subsequent jurisdictional decision, will be reviewable if

necessary following a final judgment.” Id. at 1118 (emphasis

added). We explained that “the denial of a claim of lack of

41

jurisdiction is not an immediately appealable collateral order”

as the jurisdictional provisions at issue created a “right not to

be subject to a binding judgment,” not a right to be free from

trial altogether. Id. (quoting Van Cauwenberghe v. Biard, 486

U.S. 517, 527 (1988)). And the right not to be subject to a

binding judgment “may be effectively vindicated following

final judgment.” Id. (quoting Van Cauwenberghe, 486 U.S. at

527). Notably, Khadr dealt with language that could be read

to suggest the existence of an express “right not to be tried.”

See id. at 1114 (explaining that under the 2006 MCA, a

military commission had “jurisdiction to try any offense made

punishable by this chapter or the law of war when committed

by an alien unlawful enemy combatant” (quoting former 10

U.S.C. § 948d(a)) (emphasis added)).

Our conclusion holds even if the military commission

lacks subject matter jurisdiction not simply under the MCA,

but instead under the Constitution. This much is apparent

from Councilman. There, Councilman argued that his alleged

offense was not constitutionally triable by court-martial

because it was not “service connected.” Councilman, 420

U.S. at 741-42; see also Solorio, 483 U.S. at 440-41

(explaining, in overruling the “service connection” rule, that

the rule was a “constitutional principle” interpreting

Congress’s power under Article I); O’Callahan, 395 U.S. at

272-73 (justifying the “service connection” rule by reference

to Article I and the limits set out by the Fifth and Sixth

Amendments). And when the Supreme Court established the

“service connection” rule, it spoke in terms of trial and not

punishment. See O’Callahan, 395 U.S. at 274 (holding, in

establishing the “service connection” rule, that “since

petitioner’s crimes were not service connected, he could not

be tried by court-martial but rather was entitled to trial by the

civilian courts” (emphases added)). But the Court concluded

42

in Councilman that any “service connection” deficiency could

be adequately remedied after trial. 420 U.S. at 754.

Al-Nashiri nevertheless gleans the existence of a

constitutional “right not to be tried” from two cases in which

the Supreme Court enjoined pending military trials: Reid v.

Covert, 354 U.S. 1 (1957), and Hamdan. In both Reid and

Hamdan, the Supreme Court heard pretrial habeas petitions

and found that the tribunal at issue—a court-martial in Reid, a

military commission in Hamdan—lacked the authority to

proceed. But we cannot infer from the mere fact of

intervention before trial that a constitutional “right not to be

tried” exists, much less one that extends to Al-Nashiri. And

Al-Nashiri points to no pronouncement in Reid or Hamdan

stating that a defendant has a right to have an Article III court

determine in the first instance whether the military system has

jurisdiction to try his offenses.

Instead, taking Hamdan first, Al-Nashiri observes that

according to a plurality of the Justices, “deficiencies in the

time and place allegations” against Hamdan signaled that the

“offense [alleged] is not triable by law-of-war military

commission.” Pet’r’s Br. 45 (quoting Hamdan, 548 U.S. at

600 (plurality opinion)). Al-Nashiri apparently quotes this

language to suggest that the reason the Court intervened

pretrial was to vindicate a right not to be tried for offenses

that were not “triable” by military commission. But the Court

never said so. Instead, at other points in the opinion, a

majority of the Court explained that it chose to intervene

before the military commission issued a judgment because (1)

no comity considerations justified abstaining under

Councilman; (2) Hamdan “ha[d] no automatic right” to

judicial review of the commission’s “final decision”; and (3)

there was a strong reason to believe unlawful procedures

43

would actually be used in Hamdan’s trial, because they were

“described with particularity” in a presidential order and

“implementation of some of them ha[d] already occurred.”

Hamdan, 548 U.S. at 616. In other words, the Court

intervened because Article III appellate review was not

available and no compelling considerations counseled in favor

of awaiting the military commission’s judgment.

Al-Nashiri is correct, however, that Reid and similar

cases suggest abstention is inappropriate where individuals

raise “substantial arguments denying the right of the military

to try them at all,” and “the legal challenge turns on the status

of the persons as to whom the military asserted its power”—

that is, where “there is a substantial question whether a

military tribunal has personal jurisdiction over the defendant.”

Hamdan, 548 U.S. at 585 n.16 (citing United States ex rel.

Toth v. Quarles, 350 U.S. 11 (1955) (internal quotation marks

omitted)). The precise contours of this “status” exception are

unclear, but the Supreme Court has offered two examples of

challenges that may come within its scope. First, where the

military attempts to court-martial a defendant who is

“undisputed[ly]” a civilian, the Court has intervened to

prevent trial. New v. Cohen, 129 F.3d 639, 644 (D.C. Cir.

1997); see also Councilman, 420 U.S. at 759 (citing Toth,

Reid, and McElroy v. United States ex rel. Guagliardo, 361

U.S. 281 (1960)). In these cases, the “issue presented

concerned not only the military court’s jurisdiction, but also

whether under Art. I Congress could allow the military to

interfere with the liberty of civilians even for the limited

purpose of forcing them to answer to the military justice

system.” Councilman, 420 U.S. at 759. Requiring civilian

defendants to first proceed through the military system would

be “especially unfair” because of the “disruption caused to

[their] civilian lives” and the accompanying “deprivation of

44

liberty.” Id. (quoting Noyd, 395 U.S. at 696 n.8). And second,

the Hamdan Court suggested, in dicta, that the status

exception might apply to Hamdan’s challenge, which alleged

that his military commission was not “regularly constituted”

under the Geneva Conventions. An irregularly constituted

court is “ultra vires” and therefore necessarily lacks personal

jurisdiction over any defendant, the Court reasoned. Hamdan,

548 U.S. at 589 n.20.

Whatever the precise scope of this exception to

abstention, it does not require that Al-Nashiri’s jurisdictional

challenge first be heard by an Article III court. We do not

understand Al-Nashiri to challenge his status as an alien

unprivileged enemy belligerent who is subject to detention

and to trial by military commission for certain types of

conduct. Instead, he argues that the nature of his alleged

offenses is such that the military lacks the authority to try

them. His claim is therefore similar to that presented in

Councilman, where the defendant did not challenge his status

as a service member, but instead argued that the military

could not try his offenses because they were not connected to

his service in the Army. See 420 U.S. at 759-60. Like the

Supreme Court in Councilman, then, we conclude that this

type of claim does not fit within an exception to abstention.

Nor does Al-Nashiri argue that the commissions created by

the 2009 MCA generally lack jurisdiction over defendants

because they are so procedurally deficient that they are

wholly ultra vires. The district court therefore did not err in

abstaining from deciding Al-Nashiri’s pretrial challenge to the

commission’s subject matter jurisdiction.

We recognize that our court’s opinion in Hamdan spoke

of the status exception in broad terms. See Hamdan v.

Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d on other

45

grounds, 548 U.S. 557 (2006). We suggested that the “theory”

behind this exception “is that setting aside the judgment after

trial and conviction insufficiently redresses the defendant’s

right not to be tried by a tribunal that has no jurisdiction.” Id.

at 36. But the Supreme Court’s subsequent opinion in

Hamdan clarified that this exception to abstention applies to

cases in which “the legal challenge turns on the status of the

persons as to whom the military asserted its power.” 548 U.S.

at 585 n.16 (emphasis added) (internal quotation marks

omitted). Thus, despite the broad wording of our statement in

Hamdan, we cannot conclude that the status exception covers

all non-trivial jurisdictional challenges that a military-

commission defendant might raise. Indeed, such a reading

would conflict with Councilman, which allowed a court-

martial to go forward even though the defendant contested the

tribunal’s jurisdiction to try the offense with which he was

charged.

iii

Al-Nashiri also contends that intervention is required

because his military-commission proceedings have been

unreasonably delayed. He points to the provision of the MCA

that eliminates the UCMJ’s speedy trial guarantee, see 10

U.S.C. § 948b(d)(A), and notes that the government’s

interlocutory appeals before the CMCR—and, as a result, his

trial before the military commission—were stayed for nearly a

year pending the confirmation of military judges to the

CMCR. Al-Nashiri estimated in his briefing that trial will not

commence until 2018 at the earliest. The government did not

challenge this estimate at oral argument. Now that the

CMCR’s stay has been lifted, the government has informed us

that military-commission proceedings will resume in

September 2016. Al-Nashiri’s counsel further estimated in

46

rebuttal at oral argument that appellate review in this court

will not occur until 2024. He provided no information,

however, to explain why so much time would pass between

trial and appeal.

We need not decide whether an unreasonable delay in

military-commission proceedings could come within an

exception to abstention. Cf. Nissan Motor Corp. in USA v.

Harding, 739 F.2d 1005, 1011 (5th Cir. 1984) (explaining that

“excessive delay causing significant impairment of

constitutional rights” can counsel against abstaining in favor

of an ongoing state proceeding). Although the stay before the

CMCR delayed the processing of the government’s

interlocutory appeals—and therefore Al-Nashiri’s trial—for

nearly a year, Al-Nashiri never opposed this postponement.

Indeed, when the government asked the CMCR to lift this

stay after the confirmation of two military judges to that

tribunal in April 2016, Al-Nashiri moved to continue the stay.

We decline to label unreasonable or excessive a delay that Al-

Nashiri has not contested. Cf. Sirva Relocation, LLC v. Richie,

794 F.3d 185, 196 (1st Cir. 2015) (noting that claims that a

state proceeding is inadequate due to adjudicative delay are

“undermine[d]” by a plaintiff’s “failure to pursue potentially

available state judicial remedies”). Nor has Al-Nashiri

explained why the delay caused by the government’s

interlocutory appeals was unreasonable or excessive. In fact,

it was Al-Nashiri himself who argued that, in accordance with

the Rules for Military Commissions and “basic equity,” the

military-commission proceedings should be stayed while the

government pursued its interlocutory appeals. Order, United

States v. Al-Nashiri, AE340J (Apr. 10, 2015).

To be clear, we are troubled by the estimate of Al-

Nashiri’s counsel that appellate review in this court might not

47

occur until 2024. But counsel offered this prediction for the

first time during rebuttal at oral argument, providing no

information on the cause of this anticipated lag between trial

and appeal to our court, and no opportunity for the

government to respond. We are therefore not prepared at this

juncture to forecast that any such delay will occur or be

excessive as a matter of law. Should an unreasonable delay

materialize, Al-Nashiri may pursue available remedies at that

time.

Relatedly, Al-Nashiri suggests that where it is “plain”

that the law of war does not apply, a district court should not

abstain from adjudicating a military-commission defendant’s

pretrial challenge, because requiring the defendant to first

proceed through the military system “would serve no purpose

other than delay.” Reply Br. 25 (quoting Strate v. A-1

Contractors, 520 U.S. 438, 459 n.14 (1997)). But, as we

explain below in rejecting Al-Nashiri’s mandamus petition,

there is nothing “plain[ly]” erroneous about applying the law

of war here. As a result, we take no stance on whether pretrial

intervention would be appropriate—or, indeed, required—in

such a case. Rather, we simply hold that in this case, the

district court was not required, as a matter of law, to

intervene.

Moreover, because the district court did not err in

abstaining, we reject Al-Nashiri’s arguments that the court

was obligated to rule on the merits of his petition for

preliminary injunctive relief and that it abused its discretion

by issuing a stay that mooted the request for injunctive relief.

Abstention permits a court to decline to reach the merits of a

petitioner’s claim. “It would be illogical for a federal court to

preliminarily enjoin a [parallel] court proceeding when it

[will] abstain from reviewing [that] proceeding altogether.”

48

Phelps v. Hamilton, 122 F.3d 885, 891 (10th Cir. 1997).

Accordingly, we affirm the district court’s treatment of Al-

Nashiri’s request for injunctive relief.

III

We turn finally to Al-Nashiri’s mandamus petition. As

we emphasized in rejecting his prior mandamus petition,

mandamus is a “drastic remedy” that is appropriate only if

three conditions are met. In re Al-Nashiri, 791 F.3d 71, 78

(D.C. Cir. 2015). First, the party seeking mandamus must

have “no other adequate means to attain the relief he desires.”

Id. (quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S.

367, 380 (2004)). Second, he must show that “his right to

issuance of the writ is clear and indisputable.” Id. (quoting

Cheney, 542 U.S. at 381). And even if the first two conditions

are satisfied, the court must believe “the writ is appropriate

under the circumstances.” Id. We deny Al-Nashiri’s petition

because he has not met the high bar of showing a “clear and

indisputable” right to issuance of the writ.

According to Al-Nashiri, it is “clear and indisputable”

that his conduct did not take place in the context of hostilities,

and therefore that he is entitled to mandamus relief. He

contends that hostilities exist only when the political branches

say so in a “contemporaneous public act”; the existence of

hostilities cannot be determined after the fact. And in his

view, no contemporaneous public act established that

hostilities existed either before September 11, 2001, or in

Yemen, where his alleged offenses took place.

In fact, Al-Nashiri asserts, public acts at the time of his

offenses suggested that America was at peace. He points to

the President’s public statement, in response to the Cole

bombing, that the nation was not at war. And while the

49

President reported to Congress under the War Powers

Resolution that he had introduced forces “equipped for

combat” into Yemen after the Cole attack, he did not report

that he had introduced forces “into hostilities.” Compare 50

U.S.C. § 1543(a)(1) (requiring the President to provide a

written report to Congress if he introduces troops “into

hostilities”), with id. § 1543(a)(3) (same if he introduces

troops “in numbers which substantially enlarge United States

Armed Forces equipped for combat already located in a

foreign nation”). Further, the Federal Bureau of Investigation

led the investigation of the Cole bombing, treating it as a

crime scene rather than a combat zone. In Al-Nashiri’s view,

these facts suggest that the President did not believe

“hostilities” existed around the time of the Cole bombing.

The government responds that the existence of hostilities

is established by looking not merely to the contemporaneous

acts of the political branches, but to a totality of the

circumstances, including al Qaeda’s conduct. Implicit in this

argument is the notion that the existence of hostilities can be

assessed after the fact, at trial. Applying this totality-of-the-

circumstances standard, the government argues that the Cole

attack was part of al Qaeda’s larger strategy to wage war

against the United States, which culminated in the attacks of

September 11. It notes that al Qaeda publicly declared jihad

against the United States in 1996 and attacked the U.S.

embassies in Kenya and Tanzania in 1998, and that after these

bombings, the President ordered missile strikes on al Qaeda

training camps in Afghanistan and a chemical weapons

facility in Sudan, and invoked the right to self-defense under

the United Nations Charter. The government also points to the

MCA, which authorizes military commission jurisdiction for

conduct occurring “before, on, or after” September 11, 2001.

See 10 U.S.C. § 948d. To the government, this language

50

suggests that Congress believed hostilities existed before

September 11, even if no public act was taken until the

passage of the AUMF on September 14, 2001.

The disagreement between the parties thus boils down to

two central questions: Should the existence of hostilities be

determined based on the totality of the circumstances, or only

on the understanding of the political branches? And may it be

based on a retrospective analysis, or only on what

decisionmakers believed at the time of the events? Al-Nashiri

and amici believe the judgments of the political branches at

the time are what matters; the government takes a broader

view.

Whatever the answers to these questions, they are not

clear and indisputable, as the Supreme Court’s opinions in

Hamdan make clear. There, a four-Justice plurality suggested

that the conflict against al Qaeda began only after September

11, 2001, and the enactment of the AUMF. Hamdan v.

Rumsfeld, 548 U.S. 557, 598-600 & n.31 (plurality opinion)

(questioning the legality of a charge encompassing acts from

1996 until 2001, since “the offense alleged must have been

committed both in a theater of war and during, not before, the

relevant conflict,” id. at 600). The plurality may therefore

have believed that some kind of contemporaneous public act

of the political branches is needed to establish hostilities,

although it did not expressly say so.

By contrast, in a dissent for three members of the Court,

Justice Thomas argued that the judiciary cannot “second-

guess” the Executive Branch’s view expressed in its charging

documents that an accused acted within the context of an

armed conflict. Id. at 684 (Thomas, J., dissenting). He further

contended that the Executive’s “determination that the present

51

conflict dates at least to 1996 is supported by overwhelming

evidence.” Id. at 687. In support, Justice Thomas cited much

of the same evidence that the government relies upon here,

including the 1996 declaration of jihad against the United

States and the 1998 embassy bombings. See id. at 687-88. The

dissenting opinion therefore implies that a contemporaneous

public act is not needed: al Qaeda’s actions, rather than only

those of our political branches, could be considered in

determining when hostilities began. Id. at 685, 687-88. Justice

Thomas’s argument that the Executive could determine when

hostilities began in its charging documents is also inconsistent

with the view that a contemporaneous act is needed. 9

The debate in Hamdan indicates that whether hostilities

against al Qaeda existed at the time of Al-Nashiri’s alleged

offenses, and whether Al-Nashiri’s conduct in Yemen took

place in the context of those hostilities, are open questions.

And open questions are “the antithesis of the ‘clear and

indisputable’ right needed for mandamus relief.” Al-Nashiri,

791 F.3d at 86.

The authority Al-Nashiri cites does not clear up this

uncertainty. He points to cases emphasizing that the

determination of when hostilities end is left to the political

branches. See Ludecke v. Watkins, 335 U.S. 160, 170 (1948);

Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010).

9

The Hamdan dissent’s suggestion that courts cannot question

the Executive’s charging documents also puts to rest Al-Nashiri’s

argument that the military judge acted in a clearly unlawful manner

when it denied Al-Nashiri’s motion to dismiss by, in part, deferring

to the Executive Branch’s determination that Al-Nashiri’s conduct

occurred in the context of hostilities. “Even if we ultimately agreed

with [A]l-Nashiri on the merits,” the military judge’s decision was

not clearly and indisputably erroneous. Al-Nashiri, 791 F.3d at 86.

52

These cases do not, however, clearly establish that this

political determination must be made in the form of a “public

act” such as a proclamation or report to Congress. Nor do

these cases speak directly to when hostilities begin. Al-

Nashiri also relies on The Protector, 79 U.S. (12 Wall.) 700

(1871), which explained that it was “necessary . . . to refer to

some public act of the political departments of the

government to fix the dates” of the Civil War. Id. at 702; see

also Masterson v. Howard, 85 U.S. (18 Wall.) 99, 105 (1873)

(citing The Protector). But The Protector spoke only of the

Civil War, 79 U.S. (12 Wall.) at 700; it did not purport to lay

down a rule to govern future conflicts. As the Supreme Court

later held, the terms “at war” and “at peace” may change

meanings across contexts. Lee v. Madigan, 358 U.S. 228, 231

(1959). The Protector’s reliance on a “public act” is therefore

not clearly and indisputably applicable here. As a result, it

cannot be grounds for mandamus relief.

Because Al-Nashiri cannot show that his conduct clearly

and indisputably took place outside the context of hostilities,

we deny his petition for mandamus relief.

IV

We deny Al-Nashiri’s petition for a writ of mandamus

and affirm the district court’s denial of his motion for a

preliminary injunction.

TATEL, Circuit Judge, dissenting: Since July 2011, Abd

Al-Rahim Hussein Muhammed Al-Nashiri has repeatedly

sought to challenge the government’s authority to try him in a

military commission. In his view, none of the offenses with

which he is charged occurred in the context of an armed

conflict and thus none is triable outside of a civilian court. In

one of his latest attempts to raise the issue, Al-Nashiri

petitioned the district court for a writ of habeas corpus. That

court ultimately concluded that it was required to stay its hand

under Schlesinger v. Councilman, 420 U.S. 738 (1975), a case

in which the Supreme Court held that equity and inter-branch

comity considerations generally require that federal courts

refrain from interfering in ongoing court-martial proceedings

against American military personnel.

Whether Councilman’s abstention doctrine should be

extended to the military commission context to postpone

consideration of a Guantanamo detainee’s habeas claim

presents a difficult question. In his opinion for the court,

Judge Griffith makes a strong case that, as a matter of inter-

branch comity, federal courts should respect Congress’s

judgment that Article III review of military commission

decisions generally occurs only after the military proceedings

have run their course—that is, only after final convictions are

rendered and affirmed by military authorities. In my view,

however, material differences between criminal prosecutions

of non-servicemembers in military commissions and criminal

prosecutions of servicemembers in courts-martial lessen the

force of the comity and practical considerations that lie at the

heart of cases like Councilman, thus significantly

undermining the case for abstention.

For instance, one of the primary considerations—perhaps

the primary consideration—underlying Councilman’s

abstention doctrine is the importance of avoiding judicial

interference in the military’s unique relationship with its

servicemembers, which rests on laws and traditions having no

2

counterpart in civilian life and in which the military has

singularly relevant expertise. See id. at 757, 759–60; see also,

e.g., Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality

opinion) (“[T]he rights of men in the armed forces must

perforce be conditioned to meet certain overriding demands of

discipline and duty, and the civil courts are not the agencies

which must determine the precise balance to be struck in this

adjustment.”). By contrast, judicial consideration of habeas

claims related to ongoing military commission proceedings

against alien unprivileged enemy belligerents for alleged

violations of the laws of war threatens no similar relationship

and implicates no similar expertise. Indeed, military

commissions are primarily called upon to address questions

about the laws of war, a body of international law hardly

foreign to federal courts, see, e.g., United States v.

Hamidullin, 114 F. Supp. 3d 365 (E.D. Va. 2015) (addressing

whether a defendant was entitled to combatant immunity

under the laws of war); United States v. Lindh, 212 F. Supp.

2d 541, 552–53 (E.D. Va. 2002) (same); 18 U.S.C. § 2441

(penalizing war crimes), and questions about the

constitutional constraints on military commissions, an area in

which Article III courts, not military courts, are especially

expert, see, e.g., Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427–

28 (2012) (“At least since Marbury v. Madison, we have

recognized that . . . it is emphatically the province and duty of

the judicial department to say what the law is.” (internal

quotation marks, citation, and alteration omitted)).

Significant structural differences between the military

commission system at issue here and the court-martial system

at issue in Councilman further tilt the scales against

abstention. For example, in contrast to the court-martial

system at issue in Councilman, which has existed since 1950

and which is used in both times of war and times of peace, the

present military commission system is temporary and may be

3

utilized only so long as necessary to try those who commit

law-of-war offenses during the United States’ current conflict

with al Qaeda and its associated forces, see Hamdan v.

Rumsfeld, 548 U.S. 557, 597–98 (2006) (plurality opinion)

(recognizing as a precondition of military commission

jurisdiction that an unlawful enemy combatant be charged

with an offense that occurred during the period of hostilities);

id. at 683–84 (Thomas, J., dissenting) (same). The notion that

federal courts should delay exercising their habeas

jurisdiction out of respect for a system of rarely used and

temporary tribunals strikes me as rather odd.

There are, moreover, strong countervailing reasons for

giving habeas claims related to military commissions prompt

consideration. Most notably, as the last decade and a half has

demonstrated, there is little jurisprudence regarding military

commissions and their authority. See, e.g., Order, Al Bahlul v.

United States, No. 11-1324 (D.C. Cir. Sept. 25, 2015)

(granting rehearing en banc to consider, inter alia, whether

the Constitution’s Define and Punish Clause empowers

Congress to define inchoate conspiracy as a law-of-war

offense subject to trial by military commission); Al Bahlul v.

United States, 767 F.3d 1, 18 (D.C. Cir. 2014) (en banc)

(recognizing it is an open question whether the Constitution’s

Ex Post Facto Clause applies to military commission cases at

Guantanamo); Hamdan, 548 U.S. at 613 (holding the military

commission procedures established by an executive order

invalid). Given that “[t]rial by military commission raises

separation-of-powers concerns of the highest order,” Hamdan,

548 U.S. at 638 (Kennedy, J., concurring), the absence of a

well-developed body of law about their use further counsels

against abstention.

But even if Councilman-like abstention applies as a

general matter to postpone federal courts’ exercise of habeas

4

jurisdiction where it would interfere with active military

commissions, I am unconvinced that it should apply in the

unique and troubling circumstances of this case.

Significantly, in Councilman—the abstention decision

most analogous to this case—the Supreme Court held only

that district courts must refrain from exercising their equitable

powers to intervene in pending court-martial proceedings

when the petitioner is “threatened with no injury other than

that incidental to every criminal proceeding brought lawfully

and in good faith”—that is, where a petitioner is threatened

with nothing more than the usual “cost, anxiety, and

inconvenience of having to defend against a single criminal

prosecution.” Councilman, 420 U.S. at 754–55 (internal

quotation marks and alteration omitted). The Court expressly

noted that it had “no occasion to attempt to define those

circumstances, if any, in which equitable intervention into

pending court-martial proceedings might be justified,”

explaining that it could “discern nothing” in the circumstances

of that case that “outweigh[ed] the strong considerations

favoring exhaustion of remedies” or that “warrant[ed]

intruding on the integrity of military court processes.” Id. at

761. The Court thus left open the possibility that cases might

arise in which extraordinary circumstances would outweigh

the equity and comity principles underlying abstention. Id. at

754–55, 761; cf. Younger v. Harris, 401 U.S. 37, 45–47, 53–

54 (1971) (recognizing that federal courts must generally

abstain from deciding cases that would interfere with pending

state criminal proceedings but acknowledging that

“extraordinary” or “unusual” circumstances may overcome

the equity, comity, and federalism principles that ordinarily

require abstention).

Here, it appears that extraordinary and unusual

circumstances may well outweigh whatever equity and inter-

5

branch comity principles might otherwise justify Councilman-

like abstention. In petitioning for pretrial review of the

military commission’s authority to try him, Al-Nashiri alleges

that the government subjected him to years of brutal detention

and interrogation tactics that left him in a compromised

physical and psychological state and that the harms he has

already suffered will be exacerbated—perhaps permanently—

by the government’s prosecution of him in a military

commission. If there is merit to these allegations, the harms

he will suffer are truly extraordinary and are a far cry from the

ordinary burdens—even serious ones—that individuals

endure in the course of defending against criminal

prosecutions.

According to the unclassified version of Al-Nashiri’s

brief, local authorities in the United Arab Emirates seized him

in October 2002 and transferred him to United States custody.

Pet’r’s Br. 5. The CIA then detained him at secret locations,

commonly referred to as black sites, as part of its “newly-

formed Rendition, Detention, and Interrogation (‘RDI’)

Program.” Id. Al-Nashiri asserts that this program employed

extreme interrogation tactics with the hopes of inducing

“learned helplessness” among the detainees. Id. Dr. Sondra S.

Crosby, a Department of Defense-appointed expert and a

board-certified physician who specializes in treating victims

of torture, explains that “learned helplessness” is a concept

first introduced in the 1960s by experimental psychologist Dr.

Martin Seligman. Crosby Decl. ¶ 11. Seligman’s work, which

“consisted of restraining dogs and subjecting them to random

and repeated electric shocks,” found that “[d]ogs that could

not control or influence their suffering in any way ‘learned’ to

become helpless, collapsing into a state of passivity.” Id.

According to Al-Nashiri, the CIA’s RDI program sought to

induce “learned helplessness” in the detainees so that they

“might become passive and depressed in response to adverse

6

or uncontrollable events, and . . . thus cooperate and provide

information.” Pet’r’s Br. 5 (internal quotation marks omitted).

Describing his treatment at the hands of the CIA from

2002 to 2006, Al-Nashiri, in the unclassified version of his

brief, which I quote at length, asserts the following:

The first records of Al-Nashiri[’s] treatment

[redacted]. He was not allowed to sleep, was

regularly beaten, and hung by his hands. After a

month, he was transferred to CIA custody and taken

to a location codenamed COBALT. In transit to

COBALT, ice was put down his shirt. This appears

to have been done as part of a broader policy of

using transportation between black sites to induce

anxiety and helplessness.

Virtually no documentation of Al-Nashiri’s time

at COBALT exists. Certain facts can be ascertained

from then-prevailing standard operating procedures.

The chief of 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.” COBALT

operated in total darkness and the guard staff wore

headlamps. [Redacted]. Detainees were subjected to

loud continuous noise, isolation, and dietary

manipulation.

According to one CIA interrogator, detainees at

COBALT “[‘]literally looked like [dogs] that had

been kenneled.’ When the doors to their cells were

opened, ‘they cowered.’” At COBALT, [redacted].

Detainees were fed on an alternating schedule of one

meal on one day and two meals the next day. They

7

were kept naked, shackled to the wall, and given

buckets for their waste. On one occasion, Al-Nashiri

was forced to keep his hands on the wall and not

given food for three days. To induce sleep

deprivation, detainees were shackled to a bar on the

ceiling, forcing them to stand with their arms above

their heads. [Redacted].

[Redacted] 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.

[Redacted].

[Redacted] Al-Nashiri was kept continually

naked and the temperature was kept, in his words,

“cold as ice cream.” [Redacted].

The documentation of conditions at [redacted]

lacks specificity. Most summaries of interrogation[s]

say simply [redacted]. There is no question,

however, that Al-Nashiri was “waterboarded” at

GREEN. 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.

[Redacted]

8

....

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.

[Redacted]. Al-Nashiri was kept continually hooded,

shackled, and naked. He was regularly strung up on

the wall overnight. Al-Nashiri was regularly forced

into “stress positions” prompting a Physician’s

Assistant to express concern that Al-Nashiri’s arms

might be dislocated.

While prone, this [redacted] interrogator

menaced Al-Nashiri with a handgun. The

interrogator racked the handgun “once or twice”

close to Al-Nashiri’s head. [Redacted].

The [redacted] interrogator 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

[sic]. [Redacted]. These threats were coupled with

“forced bathing” with a wire brush to abrade the

skin, [redacted]. There is also evidence Al-Nashiri

was, in fact, forcibly sodomized, possibly under the

pretext of a cavity search that was done with

“excessive force.”

Id. at 9–19 (internal citations and footnote omitted).

In his unclassified brief, Al-Nashiri further claims that at

one point

9

[t]he CIA’s Chief of Interrogations, a person whose

presence had previously caused Al-Nashiri to

tremble in fear, threatened to resign if further torture

was ordered. He wrote that torturing Al-Nashiri is “a

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

get the hell off the train before it happens.” 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-Nashiri] 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.” Headquarters

ordered Al-Nashiri to be tortured further.

Id. at 20 (internal citations omitted) (alterations in original).

According to Al-Nashiri, several years after he was

detained as part of the RDI program, the government

requested that a competency board evaluate him. “Two

psychologists and one psychiatrist conducted interviews with

[him] and reviewed numerous documents including

summaries of his interrogations, medical assessment notes,

and psychological assessment notes from 2002 through

2006.” Id. at 6. They concluded that he suffers from post-

traumatic stress disorder (PTSD) and major depressive

disorder. Id. at 7.

10

Al-Nashiri claims that these conditions are “the result—

intended result—of the government’s deliberate, years-long

campaign to coerce [him] into a state of ‘learned

helplessness.’” Id. at 9. He further claims that a military trial

will greatly aggravate these conditions, with potentially

permanent consequences for his mental and physical health.

In support, he offers the declaration of his DoD-appointed

expert, Dr. Crosby. Based on her examinations of Al-Nashiri,

Dr. Crosby believes that he “suffers from complex

posttraumatic stress disorder as a result of extreme physical,

psychological, and sexual torture inflicted upon him by the

United States.” Crosby Decl. ¶¶ 7, 12. She concludes that the

CIA “succeeded in inducing ‘learned helplessness’” and that

Al-Nashiri is “most likely irreversibly damaged by torture.”

Id. Indeed, she writes that in her “many years of experience

treating torture victims from around the world,” Al-Nashiri

“presents as one of the most severely traumatized individuals

[she] ha[s] ever seen.” Id.

After recounting aspects of Al-Nashiri’s treatment and its

current impact on his physical and psychological well-being,

Dr. Crosby states that “[a]lthough, even in the best of

circumstances, the horrific and calculated nature of his torture

would be expected to have long lasting effects, there are

multiple factors that are unique to Guantánamo and the

military proceedings against [Al-Nashiri] that are further

exacerbating his symptoms and suffering.” Id. ¶ 16. She notes

that because Guantanamo was one of the black sites at which

he was held, he is regularly “confronted with reminders . . . of

his time in CIA custody.” Id. ¶ 17. In her opinion, “[s]eeing

these reminders particularly when shackled as he often is

while moved to and from meetings with counsel and to court,

triggers traumatic stress and causes him intense anxiety,

dissociation, and painful flashbacks to his experience of

torture.” Id. Noting that “[a] key strategy of the CIA’s RDI

11

program was to keep the detention facility’s policies and

procedures unpredictable in order to induce helplessness,” Dr.

Crosby opines that ongoing instability at Guantanamo

“profoundly exacerbates . . . Al-Nashiri’s complex PTSD”

because he has “no way of differentiating this from the

government’s prior deliberate efforts to destabilize his

personality.” Id. ¶¶ 20–21.

Dr. Crosby further believes that, “[a]t present, the

military trial process is a principal driver of this instability”

and Al-Nashiri’s condition. Id. ¶ 22. She states, for example,

that “the ad hoc character of the proceedings,” in which the

government seeks to impose death, causes Al-Nashiri

“profound anxiety,” id. ¶ 23, and that the “lack of continuity

of [his] defense team” due to military personnel rules

undermines his ability to build trusting relationships with his

attorneys, id. ¶ 24.

While recognizing that a capital trial in any tribunal

would be stressful, Dr. Crosby states that her understanding of

“the more predictable procedures of federal confinement and

trials causes [her] to believe that the contemplated military

trial is stressful on a different order of magnitude and, given

. . . Al-Nashiri’s situation and fragile psychological state

induced by torture, exponentially more harmful.” Id. ¶ 26. She

has “serious doubts” about his ability to “remain physically

and mentally capable of handling the physical and emotional

stress of the military trial process,” and she “fear[s]” that, if

forced to undergo a military trial, Al-Nashiri “will eventually

decompensate” with “permanently disabling effect[s] on his

personality and his capacity to cooperate meaningfully with

his attorneys.” Id. ¶ 27.

In its responsive brief, the government contests neither

Al-Nashiri’s allegations regarding his past treatment nor the

12

potential consequences of a capital trial in a military

commission. Instead, the government insists that those

allegations are irrelevant because the burdens attendant to

defending against criminal prosecutions are insufficient to

overcome the equity and inter-branch comity principles that

justify abstention in cases like Councilman. See Resp’t’s Br.

61. But as noted above, Councilman held only that the

ordinary burdens of defending against criminal prosecutions,

however serious, are insufficient to outweigh such

considerations. If there is merit to Al-Nashiri’s allegations

regarding his treatment and to Dr. Crosby’s assessment of his

current condition and the consequences of proceeding with a

military trial, then Al-Nashiri is threatened with far more than

the harms “incidental to every criminal proceeding brought

lawfully and in good faith.” Councilman, 420 U.S. at 754

(internal quotation marks omitted). Indeed, the alleged

burdens he faces are not only unusual, but extraordinary. He

contends that because the executive branch, the very authority

that now seeks to try him, subjected him to years of brutal

detention and interrogation tactics—“torture” in the words of

his DoD-appointed expert—he suffers from psychological

disorders that will be aggravated by a capital trial in a military

commission. Surely, such circumstances—if true—would

outweigh the equity and inter-branch comity principles that

might otherwise call for abstention. See id. at 761.

The district court, in invoking Councilman’s abstention

doctrine, failed to address whether Al-Nashiri’s potential

harms involve the kind of extraordinary circumstances that

could warrant federal court intervention in pending military

commission cases. In an alternative ruling on Al-Nashiri’s

motion for a preliminary injunction, the district court did state

that Al-Nashiri failed to show the sort of irreparable injury

necessary to obtain injunctive relief. Al-Nashiri v. Obama, 76

F. Supp. 3d 218, 222 n.3 (D.D.C. 2014). Its explanation

13

consisted of a single sentence: “‘[T]he inconvenience of any

criminal prosecution, including those associated with the

military commissions, is insufficient, standing alone, to

warrant federal court intervention.’” Id. (quoting Al Odah v.

Bush, 593 F. Supp. 2d 53, 58 (D.D.C. 2009)). In reaching this

conclusion, the court ignored Al-Nashiri’s assertions that the

unusual and extraordinary circumstances of his confinement

had caused serious physical and psychological harms that

would be severely aggravated by trial in a military

commission. Indeed, without giving Al-Nashiri the

opportunity to submit classified declarations about those

harms, as his counsel had requested, the court determined that

any harms involved in defending against a criminal

prosecution could not qualify as irreparable.

In my view, the district court erred in concluding that the

types of harms Al-Nashiri asserts are governed by the general

rule that federal courts must decline to exercise their equitable

powers when individuals face no harms other than those

ordinarily involved in defending against criminal

prosecutions. Al-Nashiri asserts potential injuries different in

both degree and kind from those normally sustained in the

course of criminal proceedings. Cf. McLucas v.

DeChamplain, 421 U.S. 21, 33 (1975) (“[T]he only harm

DeChamplain claimed in support of his prayed for equitable

relief was that, if convicted, he might remain incarcerated

pending review within the military system.”). As a result,

even putting aside my concerns about applying a Councilman-

like abstention doctrine to delay federal court consideration of

habeas claims related to the current military commission

system, I would remand this case to the district court for fact-

finding with respect to Al-Nashiri’s alleged harms and for a

determination of whether those harms are sufficient to

overcome the equity and inter-branch comity principles that

might otherwise justify abstention. If the district court—after

14

taking whatever fact-finding steps it deemed necessary, such

as conducting an evidentiary hearing—were to determine that

Al-Nashiri’s alleged harms are as serious as he claims, they

would no doubt qualify as the kind of extraordinary

circumstances that “outweigh” whatever equity and inter-

branch comity principles might underlie Councilman-like

abstention. If they do not qualify as such, it would be hard to

imagine any that would.

The court dismisses these circumstances as insufficient.

Drawing upon cases applying the Younger abstention

doctrine, which requires that courts generally refrain from

exercising jurisdiction where doing so would interfere with

state proceedings implicating important state interests, the

court states that “the ‘extraordinary circumstances’ exception”

applies only where a petitioner can show that “he will suffer a

‘great and immediate’ harm absent federal-court intervention”

and “the alternative tribunal is ‘incapable of fairly and fully

adjudicating the federal issues before it.’” Majority Op. at 34–

35 (quoting Kugler v. Helfant, 421 U.S. 117, 123–24 (1975)).

According to the court, Al-Nashiri’s claims “say nothing

about the competence of the military commission,” and thus

“do[] not bring [Al-Nashiri’s] harms under the limited and

narrow meaning of the exception.” Id. at 34–35.

As an initial matter, I am skeptical that even in the

context of Younger abstention, Al-Nashiri’s circumstances

could not qualify as the sort of extraordinary circumstances

that could outweigh the equity, comity, and federalism

principles generally dictating abstention. Although some

statements from the Younger line of cases may be read to

limit Younger’s “extraordinary circumstances” exception to

situations in which state tribunals cannot be expected to fairly

and fully adjudicate litigants’ claims for reasons such as bias

15

and bad faith, see Kugler, 421 U.S. at 124, the Supreme Court

has never addressed a situation like the one we face here.

But putting those doubts aside, I am unpersuaded that we

must apply the same sort of “extraordinary circumstances”

exception as that developed in the Younger line of cases.

Contrary to the court’s suggestion, there is no single rule of

abstention, with a single “extraordinary circumstances”

exception. See Majority Op. at 34–35. Instead, drawing upon

similar but distinct principles, the Supreme Court has

developed a variety of abstention doctrines that seek to

address, in the ordinary case, the appropriate balance between

individual interests in federal court adjudication and

considerations of equity and comity. In Younger, for instance,

the Supreme Court held that absent bad faith, harassment,

enforcement of a patently unconstitutional statute, or other

“unusual” circumstances, considerations of equity, comity,

and federalism demand abstention in cases related to certain

state proceedings. See, e.g., Kugler, 421 U.S. at 123–24.

Later, in Councilman the Court held that where a

servicemember is threatened with nothing more than the

ordinary burdens involved in defending against a criminal

prosecution in a court-martial, equity and inter-branch comity

considerations require abstention. See Councilman, 420 U.S.

at 754–58, 761.

Importantly, each of these abstention doctrines balanced

different considerations. That much is evident from the fact

that Councilman abstention includes an exception that

Younger does not—specifically, for challenges to a court-

martial’s personal jurisdiction over a litigant. See

Councilman, 420 U.S. at 759–60; Hamdan, 548 U.S. at 585

n.16. The Court determined that in cases presenting such

challenges, the abstention calculus comes out differently,

16

namely, in favor of federal courts exercising their jurisdiction.

See Councilman, 420 U.S. at 759–60.

Because the Supreme Court’s abstention doctrines

involve distinct balancing calculations, I am unconvinced that

any limits the Court may have imposed on the sorts of

“extraordinary circumstances” that can outweigh the

justifications for abstention in cases related to ongoing state

proceedings necessarily apply in cases involving Councilman

abstention. No decision compels that view. And I certainly do

not believe that those conclusions are dispositive regarding

the sorts of circumstances that may outweigh whatever equity

and inter-branch comity principles might generally require

abstention in cases—like this one—that relate to pending

military commission cases against non-servicemembers. As

noted above, the considerations involved in each are different.

See supra, at 1–3, 15. Consequently, the circumstances

justifying federal court intervention may also differ.

Here, we are not confronted with a separate sovereign

seeking to vindicate important interests as it sees fit. Instead,

we are faced with the federal executive branch’s assertion that

it should get the first crack at deciding Al-Nashiri’s

substantial constitutional and statutory challenges to a

military commission’s authority to try him even though Al-

Nashiri may, because of the executive branch’s past actions,

suffer severe and permanent injuries from the exercise of its

jurisdiction. Further, the military commission has concluded

that it will not fully determine its own jurisdiction, in the first

instance, until trial. By the time Al-Nashiri has an opportunity

for meaningful judicial review, the extraordinary injuries may

well have occurred.

When the notions of equity and inter-branch comity

articulated by the court are considered against Al-Nashiri’s

17

unusual and extraordinary allegations of harm, as well as the

long-established principle that it is the judiciary’s duty to

ultimately say what the law is, see Zivotofsky, 132 S. Ct. at

1427–28, I believe that abstention—again, assuming Al-

Nashiri’s allegations are true—is unwarranted.