Academic journal article Harvard Law Review

Federal Courts - Abstention - D.C. Circuit Abstains from Adjudicating Habeas Petition of Guantanamo Detainee Tried by Military Commission

Academic journal article Harvard Law Review

Federal Courts - Abstention - D.C. Circuit Abstains from Adjudicating Habeas Petition of Guantanamo Detainee Tried by Military Commission

Article excerpt


Various abstention doctrines counsel federal courts against exercising their jurisdiction over otherwise properly presented cases. For habeas petitioners, then, the stakes of abstention are high: when federal courts decline to exercise their habeas corpus jurisdiction, the costs of detention and delay are borne by those in the government's custody. Under the doctrine of abstention first announced in Schlesinger v. Councilman, (1) federal courts must refrain from interfering with courts-martial via habeas petition or other equitable relief if the petitioner cannot make a showing of extraordinary or unusual circumstances. (2) Recently, in In re Al-Nashiri, (3) the D.C. Circuit extended the doctrine of abstention under Councilman to the context of military commissions. (4) But the court's analysis gave short shrift to key structural differences between the military commission system and the court-martial system. A fuller consideration of these differences cautions against applying Councilman's categorical prohibition on federal court exercise of habeas jurisdiction to the proceedings of military commissions.

In the wake of the September 11 attacks, President George W. Bush began authorizing the trial of enemy combatants by military commission at Guantanamo Bay. (5) In 2006, Congress passed the Military Commissions Act (6) (MCA), which formalized this system of military commissions. The MCA established the Court of Military Commission Review (CMCR) and invested it with appellate jurisdiction over military commissions. (7) The Act further invested the D.C. Circuit with appellate review over the CMCR. (8) The Act expressly limited the jurisdiction of military commissions to offenses "committed in the context of and associated with hostilities." (9)

Abd Al-Rahim Hussein Muhammed Al-Nashiri, a Saudi national and detainee at Guantanamo Bay, is alleged to be the mastermind behind several terrorist attacks, including the bombing of the U.S.S. Cole in 2000. (10) In 2011, a military commission was convened to try Al-Nashiri for his role in the attacks. (11) In response, Al-Nashiri filed a motion to dismiss with the commission, arguing that it lacked jurisdiction under the MCA because his alleged offenses were not committed in the context of hostilities. (12) The judge dismissed the motion, ruling that the existence of hostilities was partly an issue of fact for trial. (13)

In 2014, Al-Nashiri filed an amended habeas corpus petition in the United States District Court for the District of Columbia, requesting a preliminary injunction to halt the military commission trial. (14) The district court, finding that adjudication of the petition would improperly interfere with the commission's proceedings, abstained under Councilman from considering Al-Nashiri's habeas petition. (15)

The D.C. Circuit affirmed. Writing for the panel, Judge Griffith (16) applied Councilman and held that abstention was appropriate. (17) Councilman involved the court-martial of Army Captain Bruce R. Councilman, who was charged with the wrongful sale and possession of marijuana. (18) Councilman moved in federal court for an injunction halting the court-martial, arguing that the military lacked jurisdiction. (19) On appeal, the Supreme Court held 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." (20)

The Al-Nashiri court extended Councilman's abstention doctrine to the context of military commissions. In doing so, it focused on Councilman's "two comity considerations" governing the appropriateness of abstention: (1) the "adequacy of the alternative system in protecting the rights of defendants" and (2) the "importance of the interests served by allowing that system to proceed uninterrupted by federal courts. …

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