The Virtues of Abstention: Separation of Powers in Al-Nashiri II

By DiMarco, Nicholas A. | St. John's Law Review, Fall 2017 | Go to article overview

The Virtues of Abstention: Separation of Powers in Al-Nashiri II


DiMarco, Nicholas A., St. John's Law Review


INTRODUCTION

Abd Al-Rahim Hussein Muhammed al-Nashiri was a high level al Qaida operative, active off the Yemeni coast at the turn of the twentieth century. He targeted U.S. Navy vessels operating in the Port of Aden, including the USS Cole in an act of treachery that killed seventeen members of the ship's crew in October 2000.1 Arrested by local authorities in Dubai a year later, al-Nashiri was transferred into U.S. custody and detained at a CIA black site.2 Five years after his removal to Guantanamo Bay, cuba in 2006, the obama administration convened a military commission to try al-Nashiri on charges related to his attack on the USS Cole and other vessels.3 The President did so under the 2009 Military Commissions Act ("2009 MCA"), the final product of an extended dialogue among the President, congress, and the Supreme Court about the shape these commissions would take.

In the most recent round of litigation to reach a federal court,4 counsel for al-Nashiri filed a habeas petition in the District Court for the District of Columbia that collaterally attacked the commission convened to try him.5 Seeking a preliminary injunction that would bring commission proceedings to a halt until resolution of his habeas petition, al-Nashiri argued that the commission lacked jurisdiction to try him for his crimes because they were not committed in the context of hostilities.6 Chief Judge Richard W. Roberts denied the injunction and declined to exercise equitable jurisdiction over the habeas petition during the pendency of the military commission trial.7

On appeal, the United States Court of Appeals for the District of Columbia took a deferential posture to al-Nashiri's habeas petition. in a split decision, the panel applied Councilman abstention doctrine to the military commissions convened under the MCA, clearing the way for al-Nashiri's oftdelayed trial.8 The decision to abstain, while consistent with recent decisions by lower federal courts, contrasts markedly with Hamdan v. Rumsfeld,9 decided ten years earlier. There, the United States Supreme court showed little deference to the executive, declined to take the path of abstention and instead issued a wide-ranging opinion that validated the military commission mechanism but invalidated the system as employed by the Bush administration. Why does Councilman abstention apply now but not before? What was missing in 2006, when Hamdan was decided, that has since led federal courts to defer to the military commissions? And is judicial deference-in particular abstention-the appropriate response to the military commission system currently in place at Guantánamo?

This Note investigates those questions. Part i examines various scholarly approaches to judicial deference, then considers deference in the context of military commissions. in Part ii, the history of military commissions in the United States is examined, paying particular attention to the extended dialogue among the coordinate federal branches that created the system currently in operation. The decision in Al-Nashiri II10 not to adjudicate a collateral attack on one of these commissions is the focus of Part iii. That Part embraces the underlying jurisdictional challenge at stake in Al-Nashiri II, the development of abstention doctrine generally and as applied to the current commissions, as well as the role judicial deference played in the panel's decision. Finally, in Part iV, this Note argues that the path of abstention had many virtues in this case and as a rule of law, because it furthered sound separation of powers principles by respecting the considered judgments of Congress and successive Presidents. Part IV first categorizes the type of deference the panel engaged in by abstaining. Next, it considers the effect the decision will have on future collateral attacks on commission proceedings, as federal courts will now review military commission final judgments, just as Congress and the President intended, rather than intervening indiscriminately. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Virtues of Abstention: Separation of Powers in Al-Nashiri II
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.