2015-11-20 Al-Nashiri Merits Brief (REDACTED)

USCA Case #15-1023
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15-5020 & 15-1023

(Oral argument not yet scheduled] pi
., . CJ asstriICfr..
, C(t Wit 1l
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FOR THE DISTRICT OF COLUMBIA Cl RCUIT
Docket Nos. 15-5020 & 15-1023
Date
ABD AL-RAIIlM HUSSEIN AL-NASHIRI~

Appellant,
v.
BARACK OBAMA, et al.,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUI\1BIA
IN RE: ABD AL-RAHIM HUSSEIN AL-NASHIRI
PETITIONER-APPELLANT'S BRIEF
Michel Paradis
Department Defense
Military Commissions Defense Office
of
1620 Defense Pentagon

Washington, DC 20301
l.703.696.9490xl 15
michel.paradis@osd.mil
Richard Kammen
Kammen & Moudy
135 N. Pennsylvania St., Suite 1175
Indianapolis, IN 46204
1.3 I 7.643.6009
richard.kammen@osd.mil
Counsel for Petitioner-Appellant
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'L1' CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

~Parties
I.
and Amici Appearing Below
1. ~Abd Al-Rahim Al-Nashiri, Defendant-Petitioner

2. ~nited States of America
3.
~Barack
Obama, et al., Respondents

'
4.
~Amicus
Curiae Retired Generals~ Admirals & Colonels, James
Brosnahan (on brief)

5.~Amicus
~
II.
L
Curiae David Glazier, Thomas Mcintosh (on brief)
Parties and amici Appearing in this Court
Cl!B l"..bd Al-Rahim Hussein Al-Nashiri, Petitioner-Appellant
2. "'tl'1"U.S. Department of Defense, Respondent

3. (e') Barack Obama, et al., Appellees
-.
.'
(l:Jl Rulings under Review
III.
~This ca~e
consolidated two actions. The first is a petition for a writ of
mandamus and prohibition to the military commission created by Convening Order

J
# 11-02 (Sept. 28, 2011 ). The second is an appeal from the denial of a preliminary
injunction in a habeas case by the United States District Court for the District of
Columbia, Case No. 08-1207. This latter decision is reported at Al-Nashiri v.
Obama, 76 F.Supp.3d 218 (D.D.C. 2014).
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~OJSA8 8WIE8
IV.
~Rela ted
Cases
(U) Petitioner was previously before this Court in Case No. 14-1203. That
case raised this Court's jurisdiction to issue equitable relief via the All Writs Act,
28 U.S .C. 1651, to military commissions convened under the Military
Commissions Act of 2009, 123 Stat. 2190 (2009). This Court's decision was
reported as In re: Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015).
Dated: November 20, 2015
By: Isl Michel Paradis

Counsel/or Petitioner
11
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~ABLE
~Table
OF CONTENTS
of Authorities ............................................................................................ v
~Glossary
of Terms ............................................................................................... x
(t:J}i iJurisdictional Statement ................................................................................... xi

~lssti.es Presented ................................................................................................ xii
(~
Statement of the Case .......................................................................... .-............. 1
(U) Summary of Argument..................................................................................... 27

E:'lJ) i-\rgument ............................................... ,.. ,... ,., .......,........................................... 30
I.
(U) Standard of Review ................................................................................. 30
II. ~Al-Nashiri's right not to be tried by a military commission is clear

because Yemen was not a theater of hostilities at any time relevant to the
allegations against him ........................................................................................ 32
A.
~The
Department of Defense may n<?t try offenses that did not
occur in the context of and were not associated with hostilities ..................... 3 2
B. ~one of the charges over which the Dep~ment of Defense
has asserted j urisdiction involve acts that were committed in the
context of or associated with hostilities .......................................................... 36
C. ~e military commission's deference to the chain of
command demonstrates that only this Court can prevent the
Department of Defense from trying offenses that are not triable under
the 2009 Act . ................................ ,, ..........
41
t , , ......................................
III.~Al-Nashiri
will suffer irreparable harm if he is tried for capital

crimes over which a military commission has no plausible claim of
jurisdiction.. ......... ................................................................................................ 44
A. ~Al-Nashiri will lose his statutory and constitutional right not
to be tried in a tribunal that lacks any colorable claim ofjurisdiction ............ 44
B. ~The substantial risk of retrial in a capital case imposes
irreparable harms to Al-Nashiri's ability to defend himself........................... 46
C. ~iven the unusual nature of the proceedings in Guantanamo,
Al-Nashiri will suffer in-eparable psychological harms if he is
subjected to a gratuitous death penalty trial. ................................................... 49
IV.~lnjunctive
relief will protect the public's interest in ensuring the

Department of Defense obeys the limits Congress and the Constitution
place on its authority to remove cases from the courts of law........ .. ... ............... 54
...
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V. ~he Di strict Court abused its discretion when it denied injWlctive

relief without a reasoned opinion ........................................................................ 57
A. ~The district court's failure to decide the request for

injunctive relief on the merits was clear error................................................. 57
B. ~ranting a cross-motion for a stay in order to moot a request
for a preliminary injunction is clear error. ...................................................... 59
C. ~The district court erred in extending equitable abstention
doctrines where they do not apply ................................................................... 59
~ Conclus1on ........................................................................................................ 62
I
~Certificate
of Service........................................................................................... 63
~Certificate
of Compliance with Rule 32(a) ................................................... 64
(~
Statutory & Regulatory Addend um ............................................................. a-1
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OF AUTHORITIES
*Authorities upon ~hich Petitioner chiefly relies are marked with an asterisk.
Cases
*Exparte Quirin, 317 _U.S. 1(1942) ..................................................... 35,45, 54, 55
*Grisham v. Hagan, 361 U.S. 278 (1960) .................................................. 35, 48, 49

*Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ..... 29, 33, 34, 38, 41, 45, 50, 54, 56, 61
*Reid v. Covert, 354 U.S. 1 (1957) ......................................................................... 34
*The Protector, 79 U.S. 700 (1871) ........................................................._. .............. 36
Aamerv. Obama, 742F.3d 1023 (D.C. Cir. 2014) ................................................. 30
Abney v. United States,"431 U.S. 651(1977) .................................................... 44,45
Al-Bihaniv. Obama, 590 F.3d 866 (D.C. Cit. 2010) ........................................ 36, 38
Al-Nashiri v. NlacDonald, 741F.Jd1002 (9th Cir. 2013) ............................. :........ 26
Al-Nashiri v. Obama, 76 F.Supp.3d 218 (D.D.C. 2014) ................. 26, 52, 58, 59, 60
Amazon.com v. Barnesandnoble.com, 239 F.3d 1343 (Fed. Cir. 2,001) ............... 57
Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) ............................................. 35
Baker v. Carr, 369 U.S. 186 (1962) ......................................................................... 3 6
Bullington v. Missouri, 451 U.S. 430 (1981) .......................................................(... 53
Carter v. Halliburton, 710 F.3d 171 (4th Cir. 2013) .............................................. 38

Caspari v. Bolden, 510 U.S. 383 (1994) ................................................................. 48
Cheney v. US. Dist. Court for Dist. of Columbia, 542 U.S. 367 (2004) ................ 31
Davis v. PBGC, 571 F .3d 1288 (D.C. Cir. 2009) ............~ ................................. 30, 58
Ex parte Milligan, 4 Wall. 1 (1866) ........................................................................ 34
Fay v. Noia, 372 U.S. 391 (1963) ........................................................................... 47
Federal Maritime Comm 'n v. Seatr.ain Lines, 411 U.S. 726 (1973)....................... 42
Ford v. Wainwright, 477 U.S. 399 (1986) ........................................................ 52, 53
Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011 ) ..................................... ~ ....... 57
Hamdan v. Rumsfeld, 415F.3d 33 (D.C. Cir. 20~5) ........ ~ .......................... 44~ 60, 61
Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) .................................... 38
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Hussain v. Obama, 134 S.Ct. 1621 (2014) .............................................................. 61

Jn re Bituminous Coal Operators' Ass'n, 949F.2d1165 (D.C. Cir. 1991) ............ 42
Jn re September 11th Litigation, 751F.3d 86 (2d. Cir. 2014) .... .'........................... 38
Jn re Yamasl1lta, 327 U.S. 1 (1946) ........................................................................... 35

In re: Al-Nashiri, 791F.3d71 (D.C. Cir. 2015) ............................. 25, 31, 38, 46, 49
Johnson v. Eisentrager, 339 U.S. 763 (1950) ......................................................... 35

Kickapoo Tribe v. Babbitt, 43 F.3d 149 1 (D.C. Cir. 1995) ..................................... 58
Kinsella v. Singleton, 361U.S.234 (1960) ............................................................. 35

Lee v._ Madigan, 358 U.S. 228 (1959) ..................................................................... 36
Ludecke v. Watldns, 335 U.S. 160 (1948) ............................................................... 36
Masterson v. Hol11ard, 85 U. S. 99 (1873) ................................................................. 36

McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960) ....................... 35
Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 20!5) ...................................... 38
Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) ......................... 42~ 46
Mills v. District o/Columbia, 571F.3d 1304 (D.C. Cir. 2009) .............................. 57
Obaydullah v. Obama, 609LF.3d 444 (D.C. Cir. 2010) ..................................... 60, 6 1
Privitera v. California Bd. of Medical Quality Assur., 926 F.2d 890
(9th Cir. 1991) ...................................................................................................... 59
Proctor & Gamble v. Kraft Foods Global, 549 F.3d 842 (Fed. Cir. 2008) ............ 59
Rafeedie v. l.N.S., 880 F.2d 506 (D.C. Cir. 1989), ................................................. 46
Rasul v. Bu.sh, 542 U.S. 466 (2004) ........................................................................ 38
Schlesinger v. Council~an, 420 U.S. 738 (1975) ................ :............................ 60, 62

Sprint Communications v. Jacobs, 134 S.Ct. 584(2013) ....................................... 59
Talbot v Seeman, 1 Cranch 1 ( 1801) ....................................................................... 36

The Prize Cases, 2 Black 635 (1862) ...................................................................... 37
Toth v. Quarles, 350 U.S. 11(1955) .................................................................. 30, 45
United States v Pfluger, 685 F.3d 48 1 (5th Cir. 2012) .. ! ........................................ 38
United States v. Frediani, 790 F.3d 1196 (1 1th Cir. 2015) .... ................................ 38
United States v. Ghailani, 733 F.3d 29 (2d Cir. 2013) ........................................... 56

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United States v. Harper, 729 F.2d 1216 (9th Cir. 1984) ................................... 47, 49
United States v. Quinones, 313 F .3d 49 (2d Cir. 2002) .......................................... 47
United States v. Taylor, 487 U.S. 326 (1988) ......................................................... 58
Walton v. Johnson, 407 F.3d 285 (4th Cir. 2005) ...................... ,............................ 53
Younger v. Harris, 401 U.S. 37 (1971) ................................................................... 62
Cons ti tu tional Provisions
U.S. Const., art. I 8, cl. 11 .................................................................................... 36
U.S. Const., art. II 2, cl. J ............................................................. .,....................... 3 7
U.S. Const., art. III 2, cl. 3 ................................................................................... 27
U.S. Code
I 0 U.S.C. 948a.... ~ ! ~ . ~ 1
l 0 U.S.C. 948b ....... ..................... ,........................................................ xii, 1, 32, 42
u.s.c. 948h .................................. :.................................................................... 1

10 u.s.c. 948i ........... ............................................................................................. 1
10
10 U.S.C. 948j ........................... :............................................................................ 1
10 u.s.c . 949a..... ,...... ,.. ,+I *+ 34

10 u.s.c. 949h ....................... t . :..................................... l
10 U.S.C. 950g ...................................................................................................... xi
u.s.c. 950p ...................................................xii, 1, 3, 25, 27, 32, 33, 41, 42, 55

28 u.s.c. 1292 ...................................................................................................... ~i
10
28 U.S.C. 1651 ......................................................................................... :............ xi

28 U.S.C. 2241 ............................................................. :.................................. xi,25
so u.s.c. 1541 ......................................................... ............................................... 3

50U.S.C. 1543 ............................ ................................................................... 37, 39
50
u.s.c. 1544 ............................ .......................................................................... 37
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UNCt ASStfffit>
Congressional Materials
Authorization for the Use of Military Force, 115 Stat. 224 ................................ 3~ 37
CRS Sununary, NationaJ Defense Authorization Act for Fiscal Year
2010, Pub. L. 111 -84 (Oct. 28, 2009) .............................. .................................... 33
H.R. Rep. No. I 09-664(1) (2006) ............................................................................ 34
Jennifer Elsea & Matthew Weed, CRS Report for Congress, Declarations
of War and Authorizations for the Use of Military Force (Apr. 18, 2014) ......... 54
Military Commissions Act of 2009, 123 Stat. 2190 (2009) ............................... xi, 42
Supporting peace, security, and innocent cjvilians affected by conflict in
Yemen, S. Res. 341, 11 lth Cong. (2009) ............................................................ 40
War Powers Resolution, 87 Stat. 555 (1973) .......................................................... 3 7

Execuiive Materials
AE104A (Sep. 13, 2012) ................................................................................... 25, 41
AE104F (Jan. 15~ 2013) ................................................... ....................................... 25
AE 140J (Mar. 23,. 2013) ............................................................,................................ 50

AE168G/AE241C (Aug. 11, 2014) ......................................................................... 25
Al-Nashiri v. MacDonald, Case No. 12-35475, Resp. Br.

(9th Cir., Nov. 20, 2012) ................................................... :................. ...... ........... 26
Al-Nashiri v. Obama, et al., Case No. 08-1207, Resp. Opp.
(D.D.C.May 15,2014) ............ ... ............. ............................................................ 26
Chief of Naval Operations, Investigation to Inquire into the
Actions o/USS COLE (DDG 67) in Preparingfor and
Undertaking a BriefStop for Fuel at Bandar at Tawahi
(Aden Harbor) Aden, Yemen on or about 12 October 2000
(Jan. 9, 2001) .......................................................................................... .............. 40
Convening Order #11-02 (Sept. 28, 2011) ................................xii, 24, 25, 27, 41, 63
Letter to Congressional Leaders on the Global Deployment of

United States Combat-Equipped Armed Forces, Daily Comp.
Pres. Docs., 2015 DCPD No. 201 500428 (Jun. 11, 2015) .................................. 39
Letter to Congressional Leaders Reporting on Efforts in the
Global War on Terrorism, 39 Wkly. Comp. Pres. Doc. 1247
(Sept. 19, 2003) .......... ... .......................................................................... ......... 4, 40
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Letter to Congressional Leaders Reporting on the Deployment

ofForces in Response to the Terrorist Attacks ofSeptember
11, 38 Wkly. Comp. Pres. Doc. 1588 (Sept. 20, 2002) ......................................... 4
Letter to Congressional Leaders Reporting on the Deployment
of United States Forces in Response to the Attack on the USS
COLE, 36 Wkly. Comp. Pres. Doc. 2482 (Oct. 14, 2000) .............................. 2, 39
Letter to Congressiorzal Leaders Reporting on the Deployments
of United States Combat-Equipped Armed Forces Around the
World, 43 Wkly. Comp. Pres. Doc. 815 (Jun. 18, 2007) ................ ... :................. 39
Letter to Congressional Leaders Reporting on United States
Efforts in the Global War on Terrorism, 39 Wkly. Comp.
Pres. Doc. 346 (Mar. 20, 2003 ) ................. .............................................................. 4
Letter to the Speaker of the House ofRepresentatives and the
President Pro Tempore of the Senate, 37 Wkly. Comp. Pres.
Doc. 1447 (Oct. 9, 2001 ) .................................................................................. 3, 3 8
Reg.T.Mil.Comm. (2011) .......................................................................................... 1

The President's Radio Address, 36 Wkly. Comp. Pres. Doc.
2464 (Oct. 14, 2000) ........................................................................................ 2, 39
Miscellaneous
American Bar Association Guidelines for the Appointment and
Performance ofDefense Counsel in Death Penalty Cases, 31
Hofstra L. Rev. 913 (2003) ..... ......... .. ... .. .. ........................................................... 48
Harry Edwards, Linda Elliott & Marin Levy, Federal Courts
Standards ofReview (2d ed. 2013) ............................................... ......................... 30
William Winthrop, Military Law and Precedents (1920) . ...................................... 33
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~GLOSSARY
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OF TERMS
~009 Act .................... Military Commissions Act of 2009, 123 Stat. 2190 (2009)
(U) "706 Report ......... RMC 706 Sanity Board Evaluation of Abd Al Rahim Hussayn
Muhammad Al Nashiri: ISN 10015 (Mar. 28, 2013)
(U) App ............................... ................. Petitioner's Appendix Vol. I (Nov. 20, 2015)
~App.II
.......................................... Petitioner's Appendix Vol. II (Nov. 20, 2015)
~AUMF .......... Auth~rization
for the Use of Military Force, 115 Stat. 224 (2001)
~IA-OIG Report ....... Central Intelligence Agency Inspector
General, Report of
Investigation, Unauthorized lnterro ation Techni ues
at [REDACTED],
~IA-OIG
~Crosby
Review ......... Central Intelligence Agency Inspector General, Special

Review: Counterterrorism Detention and Interrogation
Activities, 2003-7123-IG (May 7, 2004)
Deel. ... ............ Declaration of Dr. Sondra Crosby, M.D. (Oct. 24, 2015)
~Reg.'f.Mil. Comm.............. Regulation_for Trial

~DNY
~SSCI
(Y~
by Military Commission (2011)
Indictment ............... United States v. al-Badawi, eta!., No. 98-CR-1023

(S.D.N.Y., unsealed May 15, 2003)
Report ....... Senate Select Committee on Intelligence, Com~ittee Study of

the Central Intelligence Agency's Detention and Interrogation
Program~ Executive Sunimary (Dec. 3, 2014)
Supp.Pet. ............ Al-Nashiri v. Obama, et al., Case No. 08-1207, Supplemental

Petition for a Writ of Habeas. Corpus (D.D.C. May 15, 2014)
~Winthrop
.... ,................... William Winthrop, Military Law & Precedents (1920)
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(l:f) :JURISDICTIONAL STATEMENT
(C!J) This Court has supervisory judsdiction over all military comm1ssions
created under the authority of the Military Commissions Act of 2009:> 123 Stat.
2190 (2009) ("2009 Act"). 10 U.S.C. 950g. This Court can issue all writs
necessary and appropriate in aid of that jurisdiction pursuant to 28 U.S.C. 1651.

Petitioner also filed a petition for a writ of habeas corpus in the U.S. District Court
for the District of Columbia. 28 U.S.C. 224l(a). This Court has jurisdiction to
review Petitioner's entitlement to relief via habeas corpus and the district court's
refusal to enter a preliminary injunction under 28 U.S.C. 1292 (a)(l) & 2241(a)~
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~ISSUES
~The
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PRESENTED
2009 Act authorizes the Secretary of Defense or his delegate (the
"Convening Authority") to convene military commissions to try "offenses triable
by military commission as provided in this chapter," 10 U.S.C. 948b(b), and an

"offense specified in this subchapter is triable by military commission under this
chapter only if the offense is committed in the context of and associated with
hostilities." Id. 950p(c) . The Convening Authority issued Convening Order #1102 (Sept. 28, 2011), which created a military commission to try PetitionerAppellant, Abd Al-Rahim Al-Nashiri ("Al-Nashiri"), for his alleged role in
terrorist plots in Yemen..All of the allegations levied in this order, however>
occurred before hostilities of any kind existed in Yemen. This raises one statutory
and one constitutional question:
1. ~Does Convening Order #1 1-02 violate 10 U.S.C. 950p(c) by
convening a military commission to try Al-Nashiri for capital offenses that did not
occur in the context of and were not associated with hostilities?

2. ~Does Convening Order # 11-02 violate the judicial trial requirements of
Article III and the Fifth and Sixth Amendments by subjecting Al-Nashiri to
prosecution by the military conunission for capital offenses that did not occur in
the context of and were not associated with hostilities?
..
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~ STATEMENT
A.
~ S tatutory
~he
OF THE CASE
Scheme of the Military Commissio ns Act of 2009.
2009 Act authorizes the Secretary of Defense and his delegates, to
"establish military commissions," but only "for offenses triable by military

commission as provided in this chapter.,, 10 U.S.C. 948b(b), 948h. The
Secretary of Defense has delegated this responsibility to the
"Conv~ning
Authority," a civil servant in the Department of Defense. Supp.Pet.
~9,
App. 1.
(") ifhe Convening Authority creates commissions ad hoc by issuing orders

to the commission's "members" to try specific charges against a specific accused.
T he members are military officers, assigned by the Convening Authority to sit as
finders of fact, recommending both a verdict and an upper bound of punishment.
l 0 U .S.C. 948i. The trial is presided over by a "military judge," id. 948j,
assigned by the officer the Convening Authority designated the "Chief Trial
Judge." Reg.T .Mil.Comm. .6-1, et seq. (2011).
(U) =fhe 2009 Act enumerates two limitations on the offenses triable by
military commission: a double jeopardy limitation, I 0 U.S.C. 949h, and the
requirement that "[a]n offense ... is triable by military commission under this
hostilities." Id. 950p(c). "Hostilities" is defined as a "conflict subject to the laws
of war." Id. 948a(9).
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~Legal
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Status of Yemen at Times Relevant to this Case.
all times relevant to this case, the United States had forces stationed
in Yemeni territory for peacetime training, diplomatic, and logistical operations.

Neither the President nor Congress ever found that this placed U.S. forces in an
area of actual or likely hostilities, such that the law of war would apply. This
includes the period surrounding the bombing of the USS COLE in October 2000,
which is at the center of the allegations against Al-Nashiri. After the bombing,
President Clinton did nothing to invoke or otherwise apply the law of war. Instead,
he stated that the country was in peacetime:
[E]ven when America is not at war, the men and women of
our military risk their lives every day ... No one should think
for a moment that the strength of our military is less important
in times of peace, because the strength of our military is a
major reason we are at peace.
The President 's Radio Address, 36 Wkly. Comp. Pres. Doc. 2464 (Oct. 14, 2000).
The President reported to Congress that additional U.S. personnel were deployed to
Yemen "solely for the purpose of assisting in on-site security .. . forces will
redeploy as soon as the additional security support is determined to be
unnecessary." Letter to Congressional Leaders Reporting on the Deployment of
United States Forces in Response to the Attack on the USS COLE, 36 Wkly. Comp.
Pres. Doc. 2482 (Oct. 14, 2000).
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(l!9i) Nothing in the public record suggests that the USS COLE incident
occurred during a "conflict," "in the context of hostilities," or was "subject to the
laws of war" as required by 950p(c). The government's response was to send the
FBI to conduct a criminal investigation; This led to an indicqnent in the Southern
District ofNew York that remains pending. United States v. al-Badawi, et al., No.
98-CR-1023 (S.D.N.Y., unsealed May 15, 2003) ("SONY Indictment").
~A year later, after the September 11th attacks, Congress passed the
Authorization for the Use of Military Force ("AUMF''), 115 Stat. 224 (codified at
50 U.S.C. 1541, note). The Aillv1F authorized the President " to use all necessary
and appropriate force against those nations, organizations, or persons" responsible
for the September 11th attack Id. 2(a). The AUW' supplements and is codified
as a note to the War Powers Resolutfon, Pub. L. 93-148, 87 Stat 555 (codified at
50 U.S.C. 1541, et seq.). Id. 2(b)(l). When drawing upon the AUMF to engage
in hostilities in specific places, the President has done so via War Powers
Resolution reports. See, e.g., Letter to the Speaker ofthe House ofRepresentatives
and the President Pro Tempore ofthe Senate, 37 Wkly. Comp. Pres. Doc. 1447
(Oct. 9, 2001) (hostilities in Afghanistan).
(U'.) 'fhe President did not extend the AUMF's war-making authorities to
Yemen at any time relevant to allegations against AL-Nashiri. In the months
surrounding Al-Nashiri' s seizure, President Bush reported to Congress that the
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deployment of U.S. personnel in Yemen was strictly for "training and equipping
their armed fo~ces" and "providing oversight for urban and maritime counterterrorism training with the Yemen special operations forces." letter to
Congressional Leaders Reporting on the Deployment ofForces in Response to the
Terrorist Attacks ofSeptember 11, 38 Wkly. Comp. Pres. Doc. 1588 (Sept. 20,
2002); Letter to Congressional Leaders Reporting on United States jforts in the

Global War on Terrorism, 39 Wkly. Comp. Pres. Doc. 346 (Mar. 20, 2003).
(U, On September 19, 2003, nearly a year after ~l-Nashiri was in custody,
the President notified Congress of "military operations against al-Qaida and other
international terrorists in the Horn of Africa re.gion, including Yemen." Letter to
Congressional Leaders Reporting on Efforts in the Global War on Terrorism, 39
Wkly. Comp. Pres. Doc. 1247 (Sept. 19, 2003). This was the first time the
President indicated that Yemen was a theater of hostilities.
C.
~AJ-Nashiri's
~Al-Nashiri
Background and Medical Status.
is a citizen of Saudi Arabia, born into a lower-class Yemeni
family. While little of his early life is known, Al-Nashiri demonstrated evidence of
mental disability throughout his youth. According to his school records, he
routinely repeated grades and ultimately did not graduate from high school until
the age of twenty-five. App. 232.
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October 2002, Al-Nashiri was seized by local authorities in the
United Arab Emirates. Supp.Pet ~13. He was thereafter taken into the custody of
the CIA as the second prisoner in its newly-formed Rendition, Detention, and
Interrogation ('~RDr') Program. Id. The objective of the RDI program was to
indu<=e Hleamed helplessness" in the captives on "the theory that the detainees
might become passive and depressed in response to adverse or uncontrollable
events, and would thus cooperate and provide information." SSCI Report 11 fn 32,
App. 121-22. Experimental psychologist Dr. Martin Seligman introduced this
concept in the 1960s, after conducting experiments in which he subjected dogs to
random electric shocks. Dogs that could not control or influence their suffering in
any way "learned" to become helpless, collapsing into passivity. Crosby
Declaration, ~11, App. 63.
~+N-14- Early
in his confinement, govenunent agents
noted that Al-Nashiri presented eviden<=e of mental disability. Soon after his
seizure, one report described his
Al-Nashiri was also described as an

Another concluded that his
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fW) ~ose Rodriguez, the CIA's Deputy Director of Operations responsible

for the RDI program, echoed this characterization of Al-Nashiri. Addressing the
claim that Al-Nashiri was the "mastermind,, of the USS COLE bombing,
Rodriguez wrote, mMastennind' was not an apt description of [A]l-Nashiri. One of
our interrogators described him to me as 'the dumbest terrorist I have ever met.' ...
[A]l-Nashiri was a nose picker who delighted in plastering the wall of his cell with
whatever he could excavate from his nostrils." Jose Rodriguez & Bill Harlow,
Hard Measures 83 (2012), App. 254.

In late 2012, the government requested a
competency board evaluate Al-Nashiri. Two psychologists and one psychiatrist
conducted interviews with Al-Nashiri and reviewed numerous documents
including summaries of his interrogations, medical assessment notes~ and
psychological assessment notes from 2002 through 2006. 706 Report at
App.II I 08-109.
IO~ 11,
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The military professionals concluded that Al-Nashiri

suffers Post-Traumatic Stress Disorder and Major Depressive Disorder. Id.at 33-36
App.II 131-34.
~This
diagnosis was corroborated by Dr. Sondra Crosby, a medical expert
appointed by the commission. Dr. Crosby met with Al-Nashiri multiple times,
evaluating him for approximately 30 hours. Crosby Declaration ,8, App. 63. She
found that Al-Nashiri ''suffers from post-traumatic stress disorder that has not been
addressed - or it hasn't been diagnosed except for a brief period, or treated. He
suffers from chronic pain. He suffers from anal-rectal complaints, and all of these
are documented in the unclassified records. Multiple other physical complaints,

headaches, chest pain, joint pain, stomach pain." App. at 245. She further
concluded he suffers from "persistent and chronic anal-rectal complaints, difficulty
defecating, bleeding, hemorrhoids, pain with sitting for prolonged periods of time.
This is very common in survivors of sexual assault." Id. at 250-251. Dr. Crosby
concluded that Al-Nashiri 's symptoms are indicative of torture. App. 245. He is
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hypervigilant, suffers from intrusive recollections and flashbacks, sleep disorders,

and nightmares, all related to specific episodes of physical, emotional, and sexual
torture. Crosby Declaration. ifl2 -13, App. 63.
(U) Dr. Crosby further found the circumstances of Guantanamo, including
language barriers and frequent turnover in the guard and medical staff, are all
disruptive to providing continuity of care and adverse to any potential for
recovery .. App. 247. Despite the passage of time, Al-Nashiri has shown little
sustained improvement in his mental health. Crosby Declaration ,16, App. 64.
Long-lasting effects from torture would be expected, but factors unique to
Guantanamo and the commissions system exacerbate his symptoms. Id.
Guantanamo was itself a "black site." This confronts Al-Nashiri with persistent
visual and audible triggers for traumatic stress events, causing him intense anxiety,
dissociation, and painful flashbacks. Jd.1[17. The highly fluid and unpredictable
commission process exacerbates his sense of helplessness and further impairing his
ability to regulate emotions. Id. ~22. Dr. Crosby predicts , given these
.circumstances, Al-Nashiri is likely to dt!;Compensate during his trial.
D. Aspects of the RDI Program Leading to Al-Nashiri's Mental Status.
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(U? The following chronology has been reconstructed principally from opensource materials and summaries of government documents that were prepared for
defense counsel in lieu of the original cables, reports, records, and other source
documents. Even these underlying documents were "recorded in increasingly
summarized form, providing little on how or when the tec~iques were applied
during an interrogation." SSCI Report 64 n.31&, App. 13&. Further, the
for which no information is available to defense

clearly demonstrates Al-Nash iri 's
present medical and psychiatric problems are the result - intended result - of the
government's deliberate, years-long campaign to coerce Al-Nashiri into a state of
"learned helplessness."
He was not allowed to sleep, was regularly beaten,.

and hung by his hands. 706 Report at 16, App.II 114. After a month, he was
transferred to CIA custody and taken to a location codenamed COBALT. 1 In
To minimize the use of classified infonnation in this pleading, counsel have used
the pseudonyms employed by the SSCI Report for individuals and locations.
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transit to COBALT, ice was put down his shirt. Id. This appears to have been done
as part of a broader policy of using transportation between black sites to induce
anxiety and helplessness. SSCI Report at 64 n. 31 7, App. 13 8;
(W) Virtually no documentation of Al-Nashiri's time at COBALT exists.
SSCI Report at 67, n.338, App. 14 l. Certain facts can be ascertained from thenprevailing 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." Id. at 50 n.240,
App. 124. COBALT operated in total darkness and the guard staff wore
headlamps. SSCI Report at 49, App. 123.
Detainees were subjected to loud continuous
noise, isolation, and dietary manipulation. SSCI Report at 67 n.3 38, App. 141.
Hf-.:+N++According to one CIA interrogator, detainees
at COBALT "'literally looked like a dog that had been kenneled.' When the doors
to their cells were opened, 'they cowered."' SSCI Report at 50, n.240, App. 124.
At COBALT,
Detainees were fed on an alternating schedule of one meal on one day and two
meals the next day. Id. They were kept naked, shackled to the wall, and given
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buckets for their waste. On one occasion, Al-Nashiri w.as forced to keep his hands
on the wall and not given food for three days. 706 Report at 16, App.II 114. To
induce sleep deprivation, detainees were shackled to a bar on the ceiling, forcing
them to stand with their arms above their heads. SSCI Report at 49, App. 123 .
use of improvised interrogation methods, such as water dousing, wherein a

detainee was doused with cold water and rolled into a carpet, which would then be
soaked with water in order to induce suffocation. SSCI Report at 105, App. 179.
1-Nashiri was kept continually

naked and the temperature was kept, in his words, "cold as ice cream." 706 Report
at 16-17, App.II 114-15.
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The documentation of conditions at-lacks

specificity. Most summaries of interrogation say simply
There is no question, however, that AlNashiri was "waterboarded" at GREEN. SSCI Report at 67, App. 141. This
entailed being tied to a slanted table, with his feet elevated. A rag was then placed
over his forehead and eyes, and water poured into his mouth and nose, inducing
choking and water aspiration. The rag was then lowered, suffocating him with
water still in his throat and sinuses. Eventually, the rag was lifted, allowing him to
"take 3-4 breaths" before the process was repeated. App.II 72.
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"small box" measured

30"x30"x2 l ". App.II 160. A photograph is given at
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BLUE in early December 2002. App.I 141. At BLUE,
point, Al-Nashiri suffered from a head cold causing him to shake for
approximately ten minutes. SSCI Report at 72, App. 146. Solid food, clothing,
reading materials, prayer rugs, and Korans were sometimes provided based on his
perceived degree of compliance with interrogations. Id. at 62, App. 136. Clothes
were sometimes given to '4stabilize his physiological problems." Id. at 72, App.
After interrogators questioned AlNashiri 's intelligence value, CIA Headquarters sent an untrained, unqualified,
. uncertified, and unapproved officer to be Al-Nashiri's new interrogator at BLUE.
SSCI Report at 68-69, App. 142-43.
Al-Nashiri was
kept continually hooded, shackled, and naked. CIA-OIG Review if, 92, App.II 142-
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He was regularly strung up on the wall
43;
overnight. Id. Al-Nashiri was regularly forced into "stress positions" prompting a
Physician's Assistant to express concern that Al-Nashiri's anns might be
dislocated. CIA-OIG Review ~97, App.II 145.
While prone, thi-interrogator
menaced Al-Nashiri with a handgun. CIA-OIG Report ~51, App.II 158. The
interrogator racked the handgun "once or twice" close to Al-Nashiri's head. CIAOIG Review ~92, App.II 142-43.
The. 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. CIAOIG Review ~94, App.II 144.
~hese threats were coupled with "forced bathing" with a wire

CIA-OIG Review ~98,
brush to abrade the skin,
App.II 145; App.II 74. There is also evidence AI-Nashiri was, in fact, forcibly
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sodomized, possibly under the pretext of a cavity search that was done with
~'excessive
force." SSCI Report at 100 n.584.
(W' Soon after Al-Nashiri arrived at BLUE, the on-site interrogators

assessed Al-Nashiri to be cooperative. SSCI Report at 67, App. 141. BLUE
persoIUlel cabled back to CIA Headquarters that Al-Nashiri was "cooperative and
truthful" and their "consensus" was that Al-Nashiri was "a compliant detainee"
who was not "withholding important threat information." Id. at 68. Headquarters
responded, "When we are able to capture other terrorists based on his leads and to
thwart future plots based on his reporting, we will have much more confidence that
he is, indeed, genuinely cooperative on some level." Id. Headquarters insisted that
interrogators subject Al-Nashiri to harsher treatment. Id. CIA interrogators at
BLUE protested that Al-Nashiri was providing "logical and rational explanations"
to questions and recommended "against reswning enhanced measuresH unless
Headquarters had evidence that Al-Nashiri was lying. Id. "[W]ithout tangible proof
of lying or intentional withholding, however, we believe employing enhanced
measures will accomplish nothing except show [al-Nashiri] that he will be
punished whether he cooperates or not ... [I]f subjected to indiscriminate and
prolonged enhanced measures, there is a good chance he will ... suffer the sort of
permanent mental harm prohibited by the statute." Id.
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(U) -r'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. SSCI Report, at 71, App. 145. He wrote that torturing AlNashiri is ',;a train wreak [sic] waiting to happen and I intend to get the hell offthe
train before it happens,." Id. He then wrote a cable to be "entered for the record"
that "we have serious reservations with the continued use of enhanced techniques
with [Al-Nashiri] and its long term impact on him. [Al-Nashiri] has been held for
three months in very difficult conditions, both physically and mentally.. . . [AlNashiri] has been mainly truthful and is not withholding significant information.
To continue to use enhanced technique[s] without clear indications that he [is]
withholding important info is excessive .... Also both C/CTC/RG and HVT
interrogator who departed [BLUE] in [REDACTED] January, believe continued
enhanced methods may push [al-Nashiri] over the edge psychologically." Id.
Headquarters ordered Al-Nashiri to be tortured further. Id. at 72.
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('l:H;'FOUO' After six months i n - Al-Nashiri was rendered to a foreign

country. SSCI Report, at 139, App. 213. Little is known about Al-Nashiri's time
there. However, based on independent invest~gation, defense counsel has identified
this country and can proffer that it has re~ularly been cited by the State Department
for its routine use of torture and extrajudicial homicide.
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October 2004, an assessment of Al-Nashiri
conducted by CIA Headquarters concluded that Al-Nashiri provided "essentially

no actionable information" and ''the probability that he has much more to
contribute is low." SSCI Report at 73, App. 147.
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Leading to this Case.
(")In May 2003, Al-Nashiri was named an unindicted co-conspirator in the

still-pending SONY Indictment. Supp.Pet. if13. It alleges that he was part of a
terrorist group in Yemen that conspired to bomb marine vessels, including the USS
COLE. Al-Nashiri has never been alleged to have had any involvement in the
September 11th attacks or to have done anything in the context of or associated
with the war in Afghanistan or any other hostilities. In September 2006, however,
rather than being transferred to the Southern District of New York, Al-Nashiri was
brought back to Guantanamo. Supp.Pet. 'lf13.
'
(U) In December 2008, the Convening Authority issued orders to create a

military commission to try Al-Nashiri on charges drawn from the SDNY
Indictment. Supp.Pet. ~14. Proceedings were to begin in February 2009. Following
the inauguration o.f President Obama, prosecutors sought a contmance of the
arraignment. Id. This was denied because it would violate the the commissions'
30-day deadline on arraignments. Id. The Convening Authority responded by
withdrawing the charges without prejudice, disbanding the commission. Id.
~ee
years later, the Convening Authority issued Convening Order
# 11-02, creating a second military commission to try Al-Nashiri. Supp.Pet. if23-24.

These charges were also carried over from the SONY indictment, supplemented by
charges relating to the bombing of a French tanker off the coast of Yemen in 2002.
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In 2014, the military commission dismissed these additional charges after the
prosecution declined to put on evidence establishing jurisdiction over thern.
AE168G/AE241C, at 5 (Aug. 11, 2014), App. 96. 1
U) Al-Nashiri moved the military commission to dis~iss on the ground that

Convening Order # 11-02 was ultra vires because none of the offenses occurred in
the context of or were associated with hostilities. The government contended that
the military commission was not authorized to declare convening orders ultra
vires, that 950p(c) placed no limits on what was triable by military commission,
and that the existence of hostilities should instead be read as an implicit element of
the offenses to be tried. AEl 04A at 9 (Sep. 13, 2012), App. 78. The military
commission ruled, inter alia, that 950p(c) was satisfied by the Convening
Authority's having issued Convening Order #11-02 without being personally
countermanded by the now-sitting President. AE104F iJ4 (Jan. 15, 2013), App. 90.
(~
Al-Nashiri filed a declaratory judgment action challenging the
Convening Authority's authority under 10 U.S.C. 9SOp(c) as well as Article III

and the Fifth and Sixth Amendments. The government succeeded in having the
case dismissed \Ulder 28 U.S.C. 224l(e)(2). Al-Nashiri v. MacDonald, 741 F.3d
(~)In September 2014, the prosecution noticed an interlocutory appeal of the

decision to dismiss these charges. Due to irregularities in the composition of the
CMCR panel, all proceedings have been stayed since November 2014. See Jn re:
Al-Nashiri, 791F.3d71 (D.C. Cir. 2015).
1
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1002, 1009 (9th Cir. 2013). In arguing for dismissal, the government insisted, "if
any court were to have jurisdiction over plaintiffs interlocutory challenge, it
would be the D.C. Circuit on mandamus in relationship to its exclusive
jurisdiction." Al-Nashiri v. MacDonald, Case No. 12-35475, Resp. Br., at 3 1 n.11
(9th Cir., Nov. 20, 2012), App. 98.
(U) Al-Nashiri then raised this claim by filing a supplemental petition for
habeas corpus and requesting a preliminary injunction. Again, the government
urged dismissal because "if any Court were to have jurisdiction over Petitioner.' s
challenge, it would be the D.C. Circuit on mandamus in relation to its exclusive
j urisdiction." Al-Nashiri v. Obama, et al., Case No. 08-1207, Resp. Opp., at 9 n.7
(D.D.C. May 15, 2014), App. 100. The District Court granted leave to file a
supplemental petition, but denied Al-Nashiri's motion for a preliminary injunction
as moot after granting Respondents' cross-motion to hold Al-Nashiri's case in

indefinite abeyance. Al-Nashiri v. Obama, 76 F.Supp.3d 218 (D.D.C. 2014).
(~'
Al-Nashiri filed a timely notice of appeal. Al-Nashiri v. Obama, et al. ,
Case No. 15-5020 (D.C. Cir., Jan. 26, 2015). Contemporaneously, he petitioned for
a writ of mandamus. Jn re: Al-Nashiri, Case No. 15-1023 (D.C. Cir., Jan. 28,
2015). He moved to consolidate the two cases, which this Court granted.
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lR #0Is/tB8IFIBB
ftijSUMMARYOFARGUMENT
(el') Outside the unique context of courts-martial, the use of ad hoc military
tribunals for the prosecution of crimes violates the Constitution's requirement that
the "trial of all crimes" be in courts of law. U.S. Const., art. III 2, cl. 3. Even in
wartime, the use of military commissions to adjudicate battlefield offenses is a
reluctant exception to our nation's commitment to judicial trials. Crimes, such as
those charged here, which were allegedly committed far from any battlefield indeed before any hostilities existed- are not triable by the military. Congress
codified that principle when it enacted 10 U.S.C. 950p(c). And the Department of
Defense violated that principle when it issued Convening Or<ler #11-02.
(U) Proceduraily, this case comes to this Court via a consolidated writ of
mandamus and an appeal from the denial of a preliminary injunction in AlNashiri's habeas case. While the applicable standards of review and burdens of
persuasion in mand~us and habeas
~e
distinct, in this case, they both tum on the
same three considerations: the merits, the prospect ofirreparable harm, and the
public interest warranting interlocutory judicial review. Under either via
mandamus or habeas corpus, this Court has the responsibility to enjoin the
Department of Defense from trying a man - and sentencing him to death - for
offenses that are not triable by a law-of-war military commission.
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(l:Ji} First, the merits are clear. No hostilities existed in Yemen at the time of
Al-Nashiri's alleged crimes. This is conclusively established by the public acts of
the political branches. Indeed, the very charges at issue in this case have been the
subject of a federal indictment since 2003. The Department of Defense's effort to
remove a capital case from a federal court violates the express limits Congress has
placed on its authority to conduct military trials, it usurps the judicial power that
the Constitution reserves to the courts of law, and it illegally attempts to apply the
laws of war to a time and place in which the President and Congress collectively
concluded that peace prevailed.
t<l:T) Second, irreparable hatm is clearly demonstrated. Trying Al-Nashiri for

crimes that Congress and the Supreme Court have determined are not triable by the
military violates a clear statutory and constitutional right not to be tried. That right
is meaningless if it can only be vindicated after he goes through the ordeal of a
capital trial. This is especially true in this case, where he faces the prospect of trial
under the SONY Indictment whether he prevails before this Court either today or
years from now on post-trial review. Indeed, the unique ordeal of a capital trial in
Guantanamo will inflict gratuitous and irreparable psychological hanns on a
mentally disabled man, whom the government subjected to an illegal and
protracted campaign of physical, psychological, and sexual torture.
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~Third,
everyone benefits from prompt judicial review of the single
question of law before this Court. The existence of hostilities broadly impacts the
daily lives of citizens throughout this country. And in this case, where the
existence of hostilities authorizes the Department of Defense to remove a capital
trial from a federal court to an ad hoc military commission, the stakes to the
separation-of-powers and the public's interest in the Executive's compliance with
limits imposed by Congress could not be graver. In this case, like Hamdan v.
Rumsfeld, 548 U.S. 557, 589 (2006), the government as much as the accused
benefits from knowing in advance whether this capital trial has any basis in law.
And the public benefits from legal certainty on a question as consequential as
where and when the United States is at war.
etJ) finally, the District Court's denial of a preliminary injunction and

issuance of an indefinite stay in Al-Nashiri' s habeas case is reversible error. The
District Court failed to conduct even the most rudimentary analysis of whether an
injunction was warranted. Instead, it granted Respondents' cross-motion for a stay
on abstention grounds. This was a per se abuse of discretion. Moreover, its
decision to abstain in "deference" to the military commission proceedings is
contrary to case law fr<>m this Court, which it neither cited nor distinguished, and it
is fundamentally incompatible with the duty that rests on the courts, in war as
much as in peace, to decide cases properly within their jurisdiction.
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Ul f8bAB8IFI'5f!J .
.AA ARGUMENT
I.
~STANDARD
OF REVIEW.
(ff) This case asks whether a federal agency has exceeded the athority
granted by Congress and allowed under the Constitution. "A court deci9es de
novo whether an agency has acted within the bounds of congressionally delegated
authority." Harry Edwards, Linda Elliott & Marin Levy, Federal Courts Standards
ofReview 168 (2d ed. 2013). Because the Department of Defense has effectively
removed a criminal case from a federal court into a military tribunal, this Court
subjects that effort to divest an Article III tribunal of .its judicial power to strict
scrutiny. Toth v. Quarles, 350 U.S. 11, 42 (1955). That single question of law is
asked via two procedural vehicles: injunctive relief pursuant to habeas corpus and
a writ of mandamus to the military commission convened under this Court's
appellate jurisdiction.
(U, For an injunction via habeas, the petitioner "must establish [1] that he is
likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities tips in his favor, and
[4] that an injunction is in the public interest." Aamer v. Obama, 742 F.3d 1023,
1038 (D.C. Cir. 2014). These factors are "evaluated on a 'sliding scale." Davis v.
PBGC, 571F.3d1288, 1291-92 (D.C. Cir. 2009). "This Court reviews a district
court's weighing of the four preliminary injunction factors ... for abuse of
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discretion.... Legal conclusions-including whether the movant has established

irreparable harm-are reviewed de novo." Id. (quotations omitted).
~For relief under
mandamus, the petitioner must. demonstrate three
conditions are met. He must 1) "have no other adequate means to attain the relief
he desires;" 2) show "that his right to issuance of the writ is clear and
indisputable;" and 3) "even if the first two prerequisites have been met, the issuing
court, in the exercise of its discretion, must be satisfied that the writ is appropriate
under the circumstances." Al-Nashiri, 791 F.3d at 78 (quoting Cheney v. US. Dist.
Court for Dist. of Columbia, 542 U.S.
367~
380-81 (2004)).
(U) While the respective standards of review and burdens of persuasion for
mandamus and habeas are distinct, in this case, relief under both turns on the same
three considerations: the merits, the harm in the absence of relief, and the public's
interest in prompt adjudication. The only meanmgful difference is the weight of
Al-Nashiri's burde~. Instead of a likelihood of success for injunctive relief via
habeas, he must show a clear entitlement to relief under mandamus. Instead of a
balance of equities in his favor, he must demonstrate irreparable harm that cannot
be avoided through other adequate means. And instead of showing that the public
interest is consistent with injunctive relief, he must convince this Court that
injunctive relief via mandamus is an appropriate exercise of its discretion.
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iThis wholesale deference to the Convening Authority on such a
fundamental question of law is not only baseless, it demonstrates the military

conunissions' basic inability to self-correct against overreaching. The 2009 Act
does not say that the Convening Authority declares when and where hostilities
existed or that the military commission members that the Convening Authority has
selected,can decide its existence as a question of fact. It instructs the Department of
Defense that it may only convene military commissions to try "offenses triable by
militaty commission as provided in this chapter," 10 U.S.C. 948b(b), and Han
offense ... is triable by military commission under this chapter only if the offense
is committed in the context of and associated with hostilities." Id. 950p(c)
(emphasis added). Trying someone for an offense that is not triable violates
"explicit statutory [and] constitutional guarantee[s] that trial will not occur."
Midland Asphqlt Corp. v. United States, 489 U.S. 794, 801 (1989).
(U) The Convening Authority is owed no deference when construing express
statutory limits on his authority. He is not given the authority to declare ex post
facto wars. The Department of Defense "may not bootstrap itself into an area in
which it has no jurisdiction(.]" Federal Maritime Comm 'n v. Seatrain Lines, 411
U.S. 726, 745 (1973). If the peculiarity of Guantanamo is stripped away, this case
is no different.than In re Bituminous Coal Operators' Ass 'n, 949 F.2d 1165 (D.C.
Cir. 1991), where this Court "grant[ed] the writ not because the district judge
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simply 'abused his discretion,' but because he has no discretion to impose on

parties against their.will 'a surrogate judge,' a substitute from the private bar
charged with resporlsibility for adjudication of the case." Id. at 1168.
(U) Evaluated under the likelihood of success standard applicable to

preliminary injunctions or the higher standard applicable to writs of mandamus,
Al-Nashiri's entitlement to relief is clear. The political branches were collectively
unwilling to recognize the applicability of the law of war in Yemen at any time
relevant to the charges against the accused. Those charges cannot therefore be tried
by a law-of-war military commission.
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m.
(Uj '.AL-NASHIRI WILL SUFFER IRREPARABLE

HARM IF HE IS TRIED FOR CAPITAL CRIMES
OVER WHICH A MILITARY COMMISSION HAS
NO PLAUSIBLE CLAIM OF JURISDICTION.
(H) ~1-Nashiri will suffer three distinct irreparable harms if relief is denied.
First, he will be permanently deprived of a statutory and constitutional right not to

be tried by military commission for offenses that are not triable in a military
commission. Second, he will be deprived of the ability to mount an effective

defense in a capital trial. Third~ given the location and unusual character of these
proceedings as well as the extreme circumstances of his prior custody, Al-Nashiri

will suffer unique and. irreparable psychological harms that promise to permanently
compromise his ability to defend his legal rights.
A. ~AJ..:Nashiri will lose his statutory and constitutional right not to

be tried in a tribunal that lacks any colorable claim of jurisdiction.
ttJ) If Al-Nashiri is tried by a military commission for offenses that both the
Congress and the Supreme Court have specifically stated are not so triable, he will
suffer a p~rmanent loss of his right not to be tried. This Court recognized this
precise legal harm in Hamdan , when it ruled that "[s]etting aside the judgment
after trial and conviction insufficiently redresses the defendanrs right not to be
tried by a tribunal that has no jurisdiction." Hamdan v. Rumsfeld, 415 F.3d 33, 36
(D.C. Cir. 2005) rev 'don other grounds 548 U.S. 557 (2006) (citing Abney v.
United States, 431 U.S. 651, 662 (1977)). For the same reason, many of the
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Supreme Court's landmark cases on military jurisdiction came to the Court as pretrial challenges. See, e.g., Reid v. Covert, 354 U.S. 1 (1957); Toth v. Quarles, 350
U.S. 11 (1955); Ex parte Quirin, 317 U.S. 1 (1942).
(lsl) ;J'o be sure, not every objection an accused may have to his trial
implicates a right not to be tried. Here, however, Al-Nashiri has made a substantial
showing that the constitutional and statutory prerequisites for military jurisdiction
over battlefield conduct are completely absent. This is clear enough from
Congress' choice of the word Htriable" in 950p(c ), as opposed to "punishable" or
"liable" or any other term that would afford an individual a right not to be
convicted, as opposed to the right not to be tried at all. See Abney, 43 l U.S.' at 662,
n .7 (pre-trial judicial review is necessary when a statute "conferred ... a right not
to face trial at all unless" the terms of the statute were satisfied).
(U) On two separate occasions, the Supreme Court has dealt with the precise
claim raised here on pre-trial habeas. In Hamdan, one of the petitioner's primary
challenges was to the military' sjurisdiction over pre-September 11th conduct.
While the majority decision relied on the commission's other statutory defects, a
plurality looked to these "deficiencies in the time and place allegations'' and found
that they "underscore - indeed are symptomatic of - the most serious defect of this
charge: The offense it alleges is not triable by law-of-war military commission."
Hamdan, 548 U.S. at 600 (plurality op.). And ~n Reid, the Court took up a pre-trial
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habeas challenge to whether military dependents were subject to military

jurisdiction for capital crimes committed "outside an area where active hostilities
were underway{.)" Reid, 354 U.S. at 35.
~en the
military's very assertion ofjurisdiction exceeds the statutory
and constitutional limits on what is triable by the military, that violates an "explicit
statutory [and] constitutional guarantee that trial will not occur.'' Midland Asphalt,
489 U.S. at 801; see also Al-Nashiri, 791 F.3d at 80 n.6. Al-Nashiri therefore
asserts one -0f a small but well-established class of cla.ims that implicate a "righi
not to be tried" that is irretrievably lost if it can be vindicated only aft.er trial.
B. -fWt-The substantial risk of retrial in a capital case imposes

irreparable harms to Al-Nasbiri's ability to defend himself.
(U) ['rial by a military commission that lacks all jurisdiction also imposes
irreparable practical harms that cannot be adequately remedied by the prospect of
post-trial review. If Al-Nashiri prevails on the single question of Jaw at the center
of this case, either now or on appeal many years from now, he faces the prospect of
trial under the SDNY Indictment. Postponing judicial review simply f-0rces him to
endure a gratuitous capital trial and years of post-trial delay first.
(U' The irreparable practical harms the prospect of retrial imposes have been
recognized as a basis for relief in far less extreme circumstances. In Rafeedie v.
LN.S., 880 F.2d 506, 517-18 (D.C. Cir. 1989), this Court affirmed the necessity of
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injunctive relief because an individual facing a summary deportation pro~eeding

"would be irreparably and seriously injured" if it turned out that it lacked
jurisdiction over him. This was because forcing the petitioner to wait for post hoc
review presented him with a Catch-22. Ifhe fully defended himself in the
deportation hearing, the government would "know his defense in advance of any
subsequent ... proceeding." Id. Ifhe held back and bet on his jurisdictional
challenge, "he risk[ed] forsaking his only opportunity to" defend himself on the
merits. Id.
(U) Given the possibility of being executed if he is convicted, Al-Nashiri

lacks the ability a ,ion-capital military c_o mmission defendant might have to take
such risks. The prospect of death forces "grisly choices" that distort an accused's
trial strategy in ways that cannot be sufficiently corrected by post-trial review. See
Fay v. Noia, 372 U.S. 391 , 439 (1963), abrogated on other grounds by Coleman v.
Thompson, 501 U.S. 722 (1991 ). A defendant facing the death penalty faces unique
"practical and legally-cognizable disadvantages" that result from being "forced
into trial tactics that are designed to avoid the death penalty but that have the
consequence of making conviction more likely." United States v. Quinones, 313
F.3d 49, 59 (2d Cir. 2002); see also United States v. Harper, 729 F.2d 1216, 1223
(9th Cir. 1984).
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(W) "The awesomeness of the death penalty has no less impact when
applied" in Guantanamo. Grisham., 361 U.S. at 280. Every decision Al-Nashiri
makes in the military commission falls into the Cat.c h-22 this Court identified in
Rafe~die.
As an ethical matter,. his lawyers "must be significantly more vigilant
about litigating all potential issues at all levels in a capital case than in any other
case." American Bar Association Guidelines for the Appointment and Performance
ofDefense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1028 (2003).
Yet, looming in the background is the knowledge that prevailing post-trial on the
single issue raised here will leave him vulnerable to the SDNY Indictment. Despite
the fundamental jurisdictional doubts that hang over this case, Al-Nashiri must
mount a full and complete defense in Guantanamo while at the same time the
government can treat this military commission trial as a dress rehearsal.
("') ''Time and again the [Supreme] Court has condemned procedures in
capital cases that might be completely acceptable in an ordinary case." Caspari v.
Bolden, 510 U.S. 383, 393 (1994) (quotations omitted). In fact, when the Supreme
Court first invalidated military jurisdiction on the very claim Al-Nash.iri now
raises, Justice Harlan concurred separately.to emphasize that "[s]o far as capital
cases are concerned, ... the law is especially sensitive t6 demands for that
procedural fairness which inheres in a civilian trial where the judge and trier of fact
are not responsive to the command of the convening authority.'~ Reid, 354 U.S. at
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77 (Harlan, J., concurring)~ see also Grisham, 361 U.S. at 280
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death
penalty is so irreversible that a dependent charged with a capital crime must have
the benefit of a jury.").
C. ~Given the unusual nature of the proceedings in Guantanamo, AlNashiri will suffer irreparable psychological harms if he is subjected to a
gratuitous death penalty trial.
~Al-Nashiri
faces unique and substantial harms that result from the
unusual character of his detention and the military commission proceedings.

Because "[e]nduring a trial that entails the possibility of a death penalty imposes a
har4ship 'different in kind' from enduring the discomfiture of any other trial[,]"
Harper, 129 F.2d at 1222-23, allowing an ad hoc death penalty trial to proceed,
when there is a virtual certainty that it will be vacated after-the-fact, threatens to

inflict these sui generi.s harms gratuitously.
~In Harper,
the Ninth Circuit "relied on the 'substantial hardship' of a
capital trial to support its decision to issue a writ of mandamus." Al-Nashiri, 791
F.3d at 81 (citing Harper, 729 F.2d at 1222-23). As this Court recognized, when
equitable relief would "spare [a petitioner] the burdens of capital prosecution[,]"
the calculus ofhann is fundamentally different from other claims that can be
adequately corrected on post-trial appeal. Id. Unlike the prior issues before this
Court relating to the CMCR, this case involves an ultra vires capital trial. Like
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Harper, the prospect of a tribunal imposing a death sentence without any

jurisdiction to do so inflicts profound and needless hanns that warrant mandamus.
~In
this case, those harms are unusually destructive and are caused by
nearly every peculiarity of the military commission process. The government's

physicians found that Al-Nashiri suffers from post-traumatic stress disorder and
major depressive disorder as a result of torture. AEl 40J (Mar. 23, 2013). This was
corroborated by Dr. Sondra Crosby, a Department of Defense-appointed expert,
who confinned that Al-Nashiri suffers from "complex posttraumatic stress disorder
as a result of extreme physical, psychological, and sexual torture
in~icted
upon
him by the United States." Crosby Deel. ill2, App. 62.

~Al-Nashiri's present vulnerability
was the intended result of a campaign
of abuse and humiliation designed to induce Al-Nashiri into a state of"leamed

helplessness." Crosby Deel
~12.
He is routinely presented with psychological
triggers that cause him "intense aruciety, dissociation, and painful flashbacks.H Id.
~17.
Full-blown trial in Guantanamo will magnify those triggers exponentially. As
just one example, the goverrunent has excluded AJ-Nashiri from hearings
whenever it has discussed classified information related to his treatment in the RDI
program. AE181at1(Nov.15, 2013); cf Hamdan, 548 U.S. at 614. This exclusion
causes him intense anxiety and his attorneys are forbidden from even discussing
these hearings with him. Crosby Deel. 1f25.
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(~ What is more, in contrast to a federal trial, where the rules are certain
and the judge has control over the proceedings, the "ever-changing rules and
procedures" of the military commission are beyond Al-Nashiri's ability to
comprehend because he "has no way of differentiating this from the governmenes
prior deliberate attempts to destabilize his personality." Crosby Deel.
~21.
He is
confronted with a situation so unpredictable that even his defense counsel are
unable to explain the procedures or what is likely to occur next. Id.
~23.
And,
perniciously, those very same attorneys are constantly changing due, among other
factors, to the military's persormel rules. Id.
~24.
(U) Al-Nashiri has repeatedly requested relief from the military commission
to ameliorate his conditions of confinement and health care. The vast majority of
these motions were denied based on the military judge's self-described lack of
remedial powers. See App. 234 ("MJ: ... We can discuss how orders are enforced
in an Article I court, because it is my view I don't order [the Convening Authority]
to pay anything. I would order him to produce or abate the proceedings. That is my
implementing system.n); App. 240 ("MJ: ... Conclitions of confinement on a
general basis may be appropriate in some forum habeas, whatever, I'm not going to
get into that. So that's where we're at."); App. 241 (Stating in response to a request
to call the commander of the detention facility to testify about medical care, "MJ:
Okay. We don't particularly need to get into that discussion too much because
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there's habeas relief that I'm not sure is within the purview of myself, but that's not
the issue before me, so let's not get to that.,'). Even the military judge's authority
to abate proceedings is illusory because, as was already done in this case, the
Convening Authority is free to disband any commission without prejudice and to
convene another later if a military judge issues ari unfavorable ruling.
~Procedural
unpredictability combined with the demonstrated futility of
seeking relief from the military judge casts into grave doubt whether these ad hoc
proceedings meet the "heightened procedural requirements on capital trials and
sentencing proceedings." Fordv. Wainwright, 477 U.S. 399, 425 (1986). But
regardless of any legal issue, this atmosphere of menacing uncertainty is "stressful
on a different order of magnitude and, given Mr. Al-Nashiri's situation and fragile
psychological state induced by torture, exponentially more hannfuL" Crosby Deel.
~26.
Indeed, there are "serious doubts about Mr. Al-Nashiri's ability [to] remain
physically or mentally capable of handling the physical and ~motional stress of the
military trial process." Id. ~27. Dr. Crosby predicts that Al-Nashiri-who will be
tried as well as housed in a former "black site," id. ~17 - will "eventually
decompensate .... [This] will have a perrhanently disabling effect on his
personality and his capacity to cooperate meaniil.gfully with his attorneys.'' Id ~27.
~n
a footnote, the District Court belittled these harms as a mere
"inconvenience." Al-Nashiri, 76 F.Supp.3d at 222 n.3. But subjecting a man that

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the government has beaten into a condition of"learned helplessness" to an ad hoc

capital trial goes far beyond "inconvenience." In other contexts, equitable relief has
been warranted to "protect the condemned from fear and pain without comfort of
understanding[.]" Ford, 477 U.S. at 410. Indeed, if it is cruel and unusual to
execute someone with an impaired ability to "prepare for his death[,]" Walton v.
Johnson, 407 F.3d 285, 292 (4th Cir. 2005), or to "comprehend ... why he has
been singled out[,]" Ford, 477 U.S. at 409, then surely the extreme emotional
stress a mentally disabled man will face in a capital prosecution that is doomed to
reversal qualifies as the kind of irreparable harm warranting pre-trial intervention.
Cf. Bullington v. Missouri, 451U.S.430, 445 (1981) (Noting the special

'"embarrassment, expense and ordeal' and the 'anxiety and insecurity' faced by a
defendant" in a capital trial).
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fl1' INJUNCTIVE RELIEF WILL PROTECT THE

PUBLIC'S INTEREST IN ENSURING THE
DEPARTMENT OF DEFENSE OBEYS THE
LIMITS CONGRESS AND THE CONSTITUTION
PLACE ON ITS AUTHORITY TO REMOVE
CASES FROM THE COURTS OF LAW.
(01 Prompt judicial review serves important public interests that far
outweigh any halTils to the government's prosecutorial interests. There are few
questions as systemically important to the legal system as when and where
hostilities exist. See Jennifer Elsea & Matthew Weed, CRS Report for Congress,
Declarations of War and Authorizations for the Use of Military Force (Apr. 18,
2014) (at least 250 federal laws are affected by the existence of hostilities). The
existence of hostilities activates laws, such as the 2009 Act, that raise "separationof-powers concerns of the highest order" by granting the Executive Brach the
authority to remove cases from the courts of law into its own special trial
chambers. Hamdan, 548 U.S. at 638 (Kennedy, J., concurring).
(~)
Here, a capital case has been removed to an ad hoc tribunal, where the
rules on hearsay, coerced confessions, and judicial independence do not apply. In

view of "the duty which rests on the courts, in time of war as well as in time of
peace, to pres~rve unimpaired the constitutional safeguards of civil liberty, ... the
public interest require[s] that [this Court] consider and decide those questions
without any avoidable delay." Quirin, 317 U.S. at 19.
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public has a compelling interest in preventing the Executive from
exceeding the limits that Congress and the Constitution have put on its authority.
"(N]o graver question was ever considered by this court, nor one which more
nearly concerns the rights of the whole people" than the scope of the military's
authority to remove a capital trial from a civilian court. Milligan~ 4 Wall. at 11819. Indeed, the Supreme Court interrupted military commission proceedings
against Nazi marines and Usama bin Laden's driver for this very reason. Quirin.,
317 U.S. at 19; Hamdan, 548 U.S. at 567. Congress put express limits on what is
"triable" by military commission and the Executive has "exceed[ed] limits that
certain statutes, duly enacted by Congress, have placed on [its] authority to
convene military courts." Hamdan, 548 U.S. at 636 (Kennedy, J., concurring).
{U) ~1-Nashiri's sole claim is that the Department of Defense cannot

.supplant the courts of law in a case whose relevant times, places, persons, and
events were not part of any conflict subject to the law of war. This is the claim on
which the Supreme Court granted relief in Milligan. It was deemed. fundamental by
a majority in Hamdan. And Congress made it the predicate for an offense to be
triable at all by military commission. 10 U.S.C. 950p(c).
(U) If the traditional rule is applied, the answer in this case is as plain now as
it was when the President said "America is not at war" fifteen years ago. If some
new rule applies, and the public acts of the sitting President and Congress are no
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1?JI SO!IM 3 Bil 125
longer a necessary condition for war, then the public should know that the
Secretary of Defense has the authority to rewrite history and single-handedly
impose sweeping changes on the law governing their daily lives.
(U, Indeed, the government should also want a prompt answer to the single
question of law presented here and it will suffer no harm if this Court provides that
answer. Al-Nashiri has been in U.S. custody for over a decade. The government
has been wholly unencumbered in its treatment of him and has made clear that it
will continue to hold him, even -if he is acquitted. AEO 11 A (Oct. 27, 2011 ), App.
69; cf Hamdan, 548 U.S. at 646 (Kennedy, J., concurring) ("regardless of the
outcome of the criminal proceedings at issue, the Government claims authority to
continue to detain him based on his status as an enemy combatant.H). As the
Supreme Court recognized in Hamdan, everyone benefits from
'~knowing
in
advance whether [the accused] may be tried by a military commission that

arguably is without any.basis in law." Hamdan, 548 U.S. at 589. If the government
prevails on the merits, the jurisdictional cloud hanging over this case will be lifted.
If it is wrong, it will avoid the waste of a futile capital trial in Guantanamo and will
remain able to pursue Al-Nashiri under the SDNY Indictment. Cf United States v.
Ghailani, 733 F.3d 29, 49 (2d Cir. 2013) (affirming the conviction of a detainee
transferred from Guantanamo to federal court for prosecution).
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tJ1 CCLASSil IED
V.
THE DISTRJCT COURT ABUSEP ITS

DISCRETION WHEN IT DENIED INJUNCTIVE
RELIEF WITHOUT A REASONED OPINlON.
~Although t he grant or denial of a preliminary injunction is left to the
district courfs discretion, that discretion is not limitless. When the district court
makes a "clear error in judgment" in considering the Nquired factors, it has abused
its discretion, and its denial of the preliminary injunction must be reversed.
Amazon.com v. Barnesandnoble.com, 239 F.3d 1343, 1350 (Fed. Cir. 2001). Here,
the district court committed clear error by not ruling on the required injunction
factors. It erred when it used a stay of proceedings as a backdoor way of denying
the request for an injunction. And it erred by relying on equitable abstention in the
first place, where the nature of both the claim raised and the military commissions
in Guantanamo render abstention doctrines inapplicable.
A. ~The district court's failure to decide the request for injunctive

relief on the merits was clear error.
~en
deciding a preliminary injunction, a district court must consider
and balance all of the required injunction factors . Gordon v. Holder, 632 F.3d 722,
725 (D.C. Cir. 2011) (district court erred in "failing to consider meaningfully the
preliminary injunction factors" before denying relief). Sound judgment, and the
exercise of sound discretion, requires "reasoned decision making on the basis of
relevant and appropriate considerations to the task at hand." Kickapoo Tribe v.
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Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995); cf. United States v. Taylor, 487 U.S.
326, 344 (1988) (district court abused its discretion by failing to consider all
relevant factors in Speedy Trial Act claim).
(W) Here, the District Court failed to consider the relevant factors or to
balance those factors in a way that this Court could review. Its consideration of the
relevant standard was limited to a four sentence footnote. Al-Nashiri, 76 F.Supp.3d
at 222 n.3. This footnote ignored three of the factors altogether and rested solely on
the glib proposition that "[t]he inconvenience of any criminal prosecution,
including those associated with the military commissions, is insufficient, standing
alone, to warrant federal court intervention." Id. (quotations omitted).
~For
the reasons given on pages 44-54 above, Al-Nashiri raises a right
not to be tried as well as highly particular individual harms. These carmot be cast
aside or belittled as mere "inconvenience." Both are
cate~ories
of irreparable harm
that require timely judicial review. The district court's reliance on this sole,
unconsidered finding cannot justify the denial of injunctive relief. Although a
movant may be successful if he makes a particularly strong showing on one

injunction factor but is less convincing on the others, the strength of any one factor
does not excuse the district court from its duty to balance all four factors. Davis,
571 F.3d at 1291-92. The district court's failure to rule on the merits of the
injunction, therefore, is per se reversible error.
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B. ~Granting a cross-motion for a stay in order to moot a request for

a preliminary injunction is clear error.
~The District Court denied Al-Nashiri's request for an injunction as moot
by granting the government's cross-motion for a stay on the grounds of equitable

abstention. Al-Nashiri, 76 F.Supp.3d at 222 n.3. The use of this procedural device
is an abuse of discretion. Proctor & Gamble v. Kraft Foods Global, 549 F.3d 842,
846-47 (Fed. Cir. 2008); cf. Privitera v. California Bd. ofMedical Quality Assur.,
926 F .2d 890, 893 (9th Cir. 1991 ).
~District
courts cannot avoid their responsibility to issue reasoned
decisions on the issues before them by simply issuing stays of proceedings. Doing
so deprives this Court of a developed record on which to evaluate the District
Court's reasoning. And it encourages litigants and courts to rely on disfavored
abstention doctrines in order "to postpone, and possibly avoid, having to adjudicate
the case:" Privitera, 926 F.3d at 896; Sprint Communications v. Jacobs, 134 S.Ct.
584, 588 (2013) ("In the main, federal courts are obliged to decide cases within the
scope of federal jurisdiction. Abstention is not in order simply because a pending
state-court proceeding involves the same subject matter.").
C. ~The district court erred in extending equitable abstention

doctrines where they do not apply.
~Finally,
the district court's reliance on "traditional principles of comity
and judicial economy" as a rationale for entering the stay was clearly erroneoils.
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Al-Nashiri, 76 F.Supp.3d at 220. The District Court abstained on the ground that
military commissions traditionally warrant "deference" from the federal courts. Id.
at 223. Neither this Court nor the Supreme Court, however, has ever extended
abstention doctrines to military commissions generally or to the Guantanamo
military commissions specifically. To the contrary, this Court has held on at least
two occasions that abstention is incompatible with the "compelling historical
precedent for the power of civilian courts to entertain challenges that seek to
interrupt the processes of military commissions." Hamdan, 415 F.3d at 36; see also
Obaydullah v. Obama, 609 F.3d 444, 448 (D.C. Cir. 2010). Neither of these
decisions are cited, let alone distinguished, by the District Court.
~Moreover,
the abstention doctrine relied upon, so-called "Councilman
abstention," does not even apply in this case. Schlesinger v. Councilman, 420 U.S.
738 (1975). Councilman abstention simply reaffirms the long-standing rule that
service-members, whose status makes them presumptively subject to military

discipline, must exhaust the institutional review afforded to them within their
chain-of-command before seeking the federal
courts~
intervention. Councilman,
420 U.S. at 758 (citing Gusikv. Schilder, 340 U.S . 128 (1950)). Al-Nashiri is not a
service-member and the Guantanamo military commissions convened in
Guantanamo are not part of the court-martial system. A decade ago, this Court held
that Councilman means "only that civilian courts should not interfere with ongoing
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court-martial proceedings against citizen servicemen. The cases have little to tell
us about the proceedings of military commissions against alien prisoners."
Hamdan, 415 F.3d at 36.(quotations omitted). The Supreme Court agreed and
opined that abstention may only ever be warranted for "military conunissions
convened on the battlefield." Hamdan, 548 U.S. 557, 590 (2006). This Court
reaffirmed this holding in Obaydullah, reasoning that the "situation in Councilman
was, of course quite different from the one here - the ongoing trial of a member of
the Armed Forces before a court-martial as opposed to the possible future trial of
an alien detainee before a military commission." Obaydullah, 609 F.3d at 448.
~This
Court need not, however, decide whether some abstention doctrine
should be extended to military commissions generally. In this case, the alleged

crimes were not perpetrated on a battlefield and are not subject to the law of war.
Al-Nashiri was not even captured by the military. He was seized in a world
financial capital by local authorities and taken into U.S. custody by a civilian
agency. Nothing about this case confers the same presumption of jurisdiction that
underlay Councilman. Cf Hussain v. Obama, 134
S.0. 1621 (2014) (Breyer, J.,
concurring in the denial of certiorari) (casting doubt on "whether the AUJ\1F

authorizes, and the Constitution pennits, detention on the basis that an individual
was part of al Qaeda, or part of the Taliban, but was not 'engaged in an armed
con.flict against the United States' in Afghanistan prior to his capture.").
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tU) CONCLUSION
(")For the foregoing reasons, this Court should enjoin the military
commission created by Convening Order# 11-02 from exceeding its lawful
jurisdiction. To the extent the government believes Al-Nashiri must be prosecuted~
no battlefield exigency prevents it from conducting a regular judicial trial.
Respectfully submitted,
Isl Michel Paradis
Michel Paradis
U.S. Department of Defense
Military Commission Defense Organization
1620 Defense Pentagon
1.703 .696 .9490 xl 15
michel. paradis@osd~mil
Richard Kammen
Kammen & Moudy
135 N. Pennsylvania St., Suite 1175
Indianapolis, IN 46204
Counsel for Petitioner-Appellant
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ft9i) CERTIFICATE OF SERVICE

(U) ~hereby certify that on November 20, 2015, copies of the foregoing
were delivered to the Court Security Officer for filing in this Court and service on
all necessary parties pursuant to the Amended Protective Order for Habeas Cases
Involving Top Secret/Sensitive Compartmented Information and Procedures for
Counsel Access to Detainees at the United States Naval Station in Guantanamo
Bay, Cuba, in Habeas Cases Involving Top Secret/Sensitive Compartmented
Infonnation, Case Nos. 08-MC-442-TFH (Dkt. Nos. 1481and1496) & 08-cv01207-RJR (Dkt. Nos. 79 & 80) (D.D.C. 9 January 2009).
By: Isl Michel Paradis

Michel Paradis
U.S. Department of Defense
Military Commission Defense Organization
.1620 Defense Pentagon
1.703.696.9490xl15
michel.paradis@osd.mil
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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Certificate of Compliance with Type-Volume Limitation, .
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitations imposed by Fed. R.
App. P. 32(a)(7)(B) as augmented by Petitioner's motion to this Court on August
l, 2013, because:
00:his brief contains 13,970 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
Ohis brief uses a monospaced typeface and contains _ _ lines of text,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P . .

32(a)(5) and the type style requirements ofFed. R. App. P. 32(a)(6) because:
~is brief has been prepared in a proportionally spaced typeface using

Microsoft Word 2010 in 14 point font size and Times New Roman type style; or
D rus brief has been prepared in a monos paced typeface using _ __
with - - -- - - - -
Dated: November 20, 2015
Respectfully submitted,
/s/ Michel Paradis
Counsel for Petitioner
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tlf) STATUTORY & REGULATORY ADDENDUM

U.S. Const., art. I 8, cl. 11 .................................................................................... a-2
U.S. Const., art. II 2, cl, 1 ... .-................................................................................ a-2
U.S. Const., art. III 2, cl. 3 .................................................................................... a-2
10 U.S.C. 948a.... .-.................................................................................................. a-2
10 U.S.C. 948b ................................................ ~ ........._............................................... a-3

10 U.S.C. 948h .................... ,,,, .............................................................................~ .. a-4
10 U.S.C. 948i ...................................... :.............................................................. a-4
I 0 U.S.C. 948j ..................................................................................................... a-5

I 0 U.S.C. 949a ........ ~ ... :......................................................................................... a-6
10 U.S.C. 949h .................................................................................................... a-8
I 0 U.S.C. 950g ~ .................................................................................... a-9
lOU.S.C. 950p ........................................ ~ ......................................................... a-10

, 28 U.S.C. 1292 .................................................................................................. a-11
28 U.S.C. 1651 ................................................................................ .................. a-13
28 U.S.C. 2241 .................................................................................................. a-13
50U.S.C. 1541 .................................................................................................. a-14
50 U.S.C. 1543 .................................................................................................. a-15
50 U.S.C. 1544 ...............................................................................................:.. a-16
Reg.T.Mil.Comm. 6-1 (2011) ........................................................................... a-17
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U.S. Const., art. I 8, cl. 11

The Congress shall have the power ... to declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water;
U.S. Const., art. 11 2, cl. 1

The President shall be Commander in Chief of the Army and Navy of the United
States, arid of the Militia of the several States, when called into the actual Service
of the United States;
U.S. Const., art. III 2, cl. 3

The trial of all crirnes,. except in cases of impeachment, shall be by jury~ and such
trial shall be held in the state where the said crimes shall have been committed; but
when not committed within any state, the trial shall be at such place or places as
the Congress may by law have directed;
10 U.S.C. 948a
In this chapter:
(1) Alien.The term "alien" means an individual who is not a citizen of the United States.
(2) Classified information.-The term "classified infonnation" means the
following:
(A) Any information or material that has been determined by the United States
Government pursuant to statute, Executive order, or regulation to require
protection against unauthorized disclosure for reasons of national security.
(B) Any restricted data, as that term is defined in section 11 y. of the Atomic
Energy Act of 1954 (42 U.S.C. 2014(y)).
(3) Coalition partner.The terin "'coalition partner", with respect to hostilities engaged in by the United
States, means any State or armed force directly engaged along with the United
States in such hostilities or providing direct operational support to the United
States in connection with such hostilities.
(4) Geneva conventio.n relative to the treatment of prisoners of war.a-2
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The term "Geneva Convention Relative to the Treatment of Prisoners of War"

means the Convention Relative to the Treatment of Prisoners of War, done at
Geneva August 12, 1949 (6 UST 3316).
(5) Geneva conventions.The term "Geneva Conventions" means the international conventions signed at
Geneva on August 12, 1949.
( 6) Privileged belligerent.-
The term "privileged belligerent" means an individual belonging to one of the
eight categories enumerated in Article 4 of the Geneva Convention Relative to the
Treatment of Prisoners of War.
(7) Unprivileged enemy belligerent-The term "unprivileged enemy belligerent"
means an individual (other than a privileged belligerent) who(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States
or its coalition partners; or
(C) was a part of al Qaeda at the time of the all~ged offense under this chapter.
(8) National security.The term "national security" means the national defense and foreign relations of
the United States.
(9) Hostilities.The term "hostilities" means any conflict subject to the laws of war.
10 u.s.c. 948b
(a) Purpose.This chapter establishes procedures governing the use of military commissions to
try alien unprivileged enemy belligerents for violations of the law of war and other
offenses triable by military commission.
(b) Authority for Military Commissions Under This Chapter.The President is authorized to establish military commissions under this chapter for
offenses triable by military commission as provided in this chapter.
(c) Construction of Provisions.a-3
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The procedures for military commissions_ set forth in this chapter are based upon
the procedures for trial by general courts-martial under chapter 4 7 of this title (the
Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms,
apply to trial by military commission except as specifically provided therein or in
this chapter, and many of the provisions of chapter 47 of this title are by their terms
inapplicable to military commissions. The judicial construction and application of
chapter 47 of this title, while instructive, i~ therefore not ofits own force binding
on military commissions established under this chapter.
( d) Inapplicability of Certain Provisions.( I) The following provisions of this title shall not apply to trial by military
commission under this chapter:
(A) Section 810 (arricle 10 of the Unifonn Code of Military Justice), relating to
speedy trial, including any rule of courts-martial relating to speedy trial.
(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of
Military Justice), relating to compulsory self-incrimination.
(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to
preliminary hearing.,
(2) Other provisions of chapter 47 of this title shall apply to trial by military
commission under this chapter only to the extent provided by the terms of such
provisions or by this chapter.
(e) Geneva Conventions Not Establishing Private Right of Action.No alien unprivileged enemy belligerent subject to trial by military commission
under this chapter may invoke the Geneva Conventions as a basis for a private
right of action:
10 u.s.c. 948h
Military commissions under this chapter may be convened by the Secretary of
Defense or by any officer or official of the United States designated by the
Secretary for that purpose.
10 u.s.c. 948i
(a) In General. - Any commissioned officer of the armed forces on active duty is
eligible to serve on a military commission under this chapter, including.
commissioned officers of the reserve components of the armed forces on active
duty, commissioned officers of the National Guard on active duty in Federal
recalled to active duty.
service, or. retired commissioned officers
.
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(b) Detail of Members. - When convening military commission under this

chapter, the convening authority shall detail as members thereof such members of
the armed forces eligible under subsection (a) who, in the opinion of the convening
authority, are best qualified for the duty by reason of age, education, training,
experience~ length of service, and judicial temperament. No member of an armed
force is eligible to serve as a member of a military commission when such member
is the accuser or a witness for the prosecution or has acted as an investigator or
coun~el in the same case.
( c) Excuse of Members. - Before a military commission under this chapter is
assembled for the trial of a case, ~he convening authority may excuse a member
from participating in the case.
10 u.s.c. 948j
(a) Detail of Military Judge.-A military judge shall be detailed to each military
commission under this chapter. The Secretary of Defense shall prescribe
regulations providing for the manner in which military judges are so detailed to
mflitary commissions. The military judge shall preside over each military
commission to which such military judge has been detailed.
(b) Eligibility.-A military judge shall be a commissioned officer of the armed

forces who is a member of the bar of a Federal court, or a member of the bar of the
highest court of aState, and who is certified to be qualified for duty under section
826 of this title (article 26 of the Uniform Code of Military Justice) as a military
judge of general courts-martial by the Judge Advocate General of the armed force
of which such military judge is a member.
(c) Ineligibility of Certain Individuals.-No per.son is eligible to act as military judge
in a case of a military commission under this chapter if such person is the accuser
or a witness or has acted as investigator or a counsel in the same case.
(d) Consultation With Members; Ineligibility to Vote.-A military judge detailed to
a military commission under this chapter may not consult with the members except
in the presence of the accused (except as otherwise provided in section 949d of this
title), trial counsel, and defense counsel, nor may such military judge vote with the
members.
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( e) Other Duties.-A commissioned officer who is certified to be qualified for duty

as a military judge of a military commission under this chapter may perform such
other duties as are assigned to such officer by or with the approval of the Judge
Advocate General of the armed force of which such officer is a member or the
<lesignee of such Judge Advocate General.
(f) Prohibition on Evaluation of Fitness by Convening Authority.-The convening
authority of a military commission under this chapter may not prepare or.. review
any report concerning the effectiveness, fitness, or efficiency of a military judge
detailed to the military commission which relates to such judge's performance of
duty as a military judge on the military commission.
10 U.S.C. 949a
(a) Procedures and Rules of Evidence.Pretrial, trial, and post-trial procedures, including elements and modes of proof, for
cases triable by military commission under this chapter may be prescribed by the
Secretary of Defense. Such procedures may not be contrary to or inconsistent with
this chapter. Except as otherwise provided in this chapter or chapter 47 of this title,
the procedures and rules of evidence applicable in trials by general courts-martial
of the United States shall apply in trials by military commission under this chapter.
(b) Exceptions.( I) In trials by military commission under this chapter, the Secretary of Defense, in
consultation with the Attorney General, may make such exceptions in the
applicability of the procedures and rules of evidence otherwise applicable in
general courts-martial as may be required by the unique circumstances of the
conduct of military and inteliigence operations during hostilities or by other
practical need consistent with this chapter.
(2) Notwithstanding any exceptions authorized by paragraph (1 ), the procedures
and rules of evidence in trials by military commission under this chapter shall
include, at a minimum, the following rights of the accused:
(A) To present evidence in the accused's defense, to cross-examine the witnesses
who testify against the accused, and to examine and respond to all evidence
admitted against the accused on the issue of guilt or innocence and for sentencing,
as provided for by this chapter.
(B) To be present at all sessions of the military corrunission (other than those for
deliberations or voting), except when excluded under section 949d of this title.
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(C) (i) When none of the charges sworn against the accused are capital, to be
represented before a military commission by civilian counsel if provided at no
expense to the Government, and by either the defense counsel detailed or the
military counsel of the accused's own selection, if reasonably available.
(ii) When any of the charges sworn against the ac<;used are capital, to be
represented before a military commission in accordance with clause (i) and, to the
greatest extent practicable, by at least one additional counsel who is learned in
applicable law relating to capital cases and who, if necessary, may be a civilian and
compensated in accordance with regulations prescribed by the Secretary of
Defense.
(D) To self-representation, ifthe accused knowingly and competently waives the
assistance of counsel, subject to the provisions of paragraph ( 4).
(E) To the suppression of evidence that is not reliable or probative.
(F) To the suppression of evidence the probative value of which is substantially
outweighed by( i) the danger of unfair prejudice~ confusion of the issues, or misleading the
members; or
(ii) considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
(3) In making exceptions in the applicability in trials by military commission under
this chapter from the procedures and rules otherwise applicaqle in general courtsmartial, the Secretary of Defense may provide the following:
(A) Evidence seized outside the United States shall not be excluded from trial by
military commission on the grounds that the evidence was not seized pursuant to a
search warrant or authorization.
(B) A statement of the accused that is otherwise admissible shall not be excluded
from trial by military conunission on grounds of alleged <;oercion or compulsory
self-incrimination so long as the evidence complies with the provisions of section
948r of this title.
(C) Evidence shall be admitted as authentic so long as(i) the military judge of the military commission detennines that there is sufficient
evidence that the evidence is what it is claimed to be; and
(ii) the military judge instructs the members that they may consider any issue as to
authentication or identification of evidence in determining the weight, if arty, to be
given to the evidence.
(D) Hearsay evidence not otherwise admissible under the rules of evidence
applicable in trial by general courts-martial may be admitted in a trial by military
commission only if--
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(i) the proponent of the evidence makes known to the adverse party, sufficiently in
advance to provide the adverse party with a fair opportunity to meet the evidence,
the proponent's intention to offer the evidence, and the particulars of the evidence
(including information on the circumstances under which the evidence was
obtained); and
(ii) the military judge, after taking into account all of thy circumstances
surrounding the taking of the statement, including the degree to which the
statement is corroborated, the indicia of reliability within the statement itself, and
whether the will of the declarant was overborne, determines that(I) the statement is offered as evidence of a material fact;
(II) the statement is probative on the point for which it is offered;
,
(III) direct testimony from the witness is not available as a practical matter, taking
into consideration the physical location of the witness, the unique circumstances of
military and intelligence operations during hostilities, and the adverse impacts on
military or intelligence operations that would likely result from the production of
the witness; and
(IV) the general purposes of the rules of evidence and the interests of justice will
best be served by admission of the statement into evidence.
( 4) (A) The accused in a military commission under this chapter who exercises the
right to self-representation under paragraph (2)(D) shall conform the accused's
deportment and the conduct of the defense to the rules of evidence, procedure, and
decorum applicable to trials by military commission.
(B) Failure of the accused to confonn to the rules described in subparagraph (A)
may result in a partial or total revocation by the nrilitary judge of the right of selfrepresentation under paragraph (2)(D). In such case, the military coWlsel of the
accused or an appropriately authorized civilian counsel shall perform the functions
necessary for the defense.
(c) Delegation of Authority To Prescribe Regulations.The Secretary of Defense may delegate the authority of the Secretary to prescribe
regulations under this chapter.
(d) Notice to Congress of Modification ofRules.Not later than 60 days before the date on which any proposed modification of the
rules in effect for military com~issions under this chapter goes into effect, the
Secretary of Defense shall submit to the Committee on Armed Services of the
Senate and the Committee on Armed Services of the House of Representatives a
report describing the proposed modification.
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u.s.c. 949h
(a) In General.No person may, without the person's consent, be tried by a military commission
under this chapter a second time for the same offense.
(b) Scope ofTrial.No proceeding in which the accused has been found guilty by military commission
Wlder this chapter upon any charge or specification is a trial in the sense of this
section until the finding of guilty has become final after review of the case has
been fully completed.
10 u.s.c. 950g
(a) Exclusive Appellate Jurisdiction.Except as provided in subsection (b), the United States Court of Appeals for the
District of Columbia Circuit shall have exclusive jurisdiction to determine the
validity of a final judgment rendered by a military commissio.n (as approved by the
convening authority and, where applicable, as affirmed or set aside as incorrect in
law by the United States Court of Military Commission Review) under this
chapter.
(b) Exhaustion of Other Appeals.The United States Court of Appeals for the District of Columbia Circuit may not
review a final judgment described in subsection (a) until all other appeals under
this chapter have been waived or exhausted.
(c) Time for Seeking Review.-A petition for review by the United States Court of
Appeals for the District of Columbia Circuit must be filed in the Court of
Appeals( I) not later than 20 days after the date on which written notice of the final
decision of the United States Court of Military Commission Review is served on
the parties; or
(2) if the accused submits, in the form prescribed by section 950c of this title, a
written notice waiving the right of the accused to review by the United States
Court of Military Commission Review, not later than 20 days after the date on
which sue h n~tice is submitted.
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The United States Court of Appeals for the District of Columbia Circuit may act
under this section only with respect to the findings and sentence as approved by the
convening authority and as affirmed or set aside as incorrect in law by the United
States Court of Military Commission Review, and shall take action only with
respect to matters of law, including the sufficiency of the evidence to support the
verdict.
(e) Review by Supreme Court.The Supreme Court may review by writ of certiorari pursuant to section 1254. of
title 28 the final judgment of the United States Court of Appeals for the District of
Columbia Circuit under this section.
10 u.s.c. 950p
(a) Definitions.-In this subchapter:
(1) The term "military objective" means combatants and those objects during
hostilities which, by their nature~ location, purpose, or use, effectively contribute to
the war-fighting or war-sustaining capability of an opposing force and whose total
or partial destruction, capture, or neutralization would constitute a definite military
advantage to the attacker under the circumstances at the time of an attack.
(2) The term ''protected person" means any person entitled to protection under one
or more of the Geneva Conventions, including civilians not taking an active part in
hostilities, military personnel placed out of combat by sickness, wounds, or
detention, and military medical or religious personnel.
(3) The term "prote.cted property'' means any property specifically protected by the
law of war, including buildings dedicated to religion, education, art, science, or
charitable purposes, historic monuments, hospitals, and places where the sick and
wounded are collected, but only if and to the extent such property is not being used
for military purposes or is not otherwise a military objective. The tenn includes
objects properly identified by one of the distinctive emblems of the Geneva
Conventions, but does not include civilian property that is a military objective.
(b} Construction of Certain Offenses.The intent required for offenses under paragraphs (1), (2), (3), (4), and (12) of
section 950t of this title precludes the applicability of such offenses with regard to
collateral damage or to death~ damage, or injury incident to a lawful attack.
(c) Common Circumstances.-
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An offense specified in this subchapter is triable by military commission under this

hostilities.
(d) Effect.The provisions of this subchapter codify offenses that have traditionally been
triable by military commission. Th.is chapter does not establish new crimes that did
not exist before the date of the enactment of this subchapter, as amended by the
National Defense Authorization Act for Fiscal Year 2010, but rather codifies those
crimes for trial by military commission. Because the provisions of this subchapter
codify offenses that have traditionally been triable under the law of war or
otherwise triable by military commission, this subchapter does not preclude trial
for offenses that occurred before the date of the enactment of this subchapter, as so
am.ended.
28 u.s.c. 1292
(a) Except as provided in subsections ( c) and ( d) of this section, the courts of
appeals shall have jurisdiction of appeals from:
( 1) Interlocutory orders of the district courts of the United States, the United States
District Court for the District of the Canal Zone, the District Court of Guam, and
the District Court of the Virgin Islands, or of the judges thereof, granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions, except where a direct review may be had in the Supreme
Court;
(2) Interlocutory orders appointing receivers, or refusing orders to wind up
receiverships or to take steps to accomplish the purposes thereof, such as directing
sales or other disposals of property;
(3) Interlocutory decrees of such district courts or the judges thereof determining
the rights and liabilities of the parties to admiralty cases in which appeals from
final decrees are allowed.
(b) When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in such order. The
Court of Appeals which would have jurisdiction of an appeal of such action may
thereupon, in its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order:
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Provided, however, That application for an appeal hereunder shall not stay
proceedings in the district court unless the district judge or the Court of Appeals or
a judge thereof shall so order.
( c) The United States Court of Appeals for the Federal Circuit shall have exclusiv~
jurisdiction(1) of an appeal from an interlocutory order or decree described in subsection (a)
or (b) of this section in any case over which the court would have jurisdiction of an
appeal under section 1295 of this tide; and
(2) of an appeal froin a judgment in a civil action for patent infringement which
would otheiwise be appealable to the United States Court of Appeals for the
Federal Circuit and is final except for an accounting.
(d) (1) When the chief judge of the Court of International Trade issues an order
under the provisions of section 256(b) of this title, or when any judge of the Court
of International Trade, in issuing any. other interlocutory order, includes in the
order a statement that a controlling question of law is involved with respect to
whiCh there is a substantial ground for difference of opinion and that an immediate
appeal from that order may materially advance the ultimate termination of the
litigation; the United States Court of Appeals fprthe Federal Circuit m~y, in its
discretion, permit ~ appeal to be taken from such order, if application is made to
that C,ourt within ten days after the entry of such order.
(2) When the chief judge ofthe United States Court of Federal Claims issues an
order uiider ~ection 798(b) of this title, or when any judge of the United States
Co.urt of Federal Claiins,.in issuing an interlocu~ory order, includes in the order a
statement that a controlling question of law is involved with respect to which there
is a substantial ground for difference of opinion and that an inimeqiate appeal from
that order may materially advance the ultimate termination of tpe litigation, the
United States Court of Appeals for the Federal Circuit may, in its discretion, pennit
an .appeal to be taken from such order, if application is made to that Court within
ten days after the entry of such order.
(3) Neither the application for nor the grarting of an appeal urider this subsection
shall stay proceedings in the Court of International Trade or in the Court ofFederal
Claims, as the case may be, unless a stay is ordered by a judge of the Court of
International Trade ot ofthe Court of Federal Claims or by the United States Court
of Appeals for the Federal Circuit or ajudge of that court.
(4) (A) The United States Courcof Appeals for the ,Federal Circuit shall have
exclusive jurisdiction of~ appeal from an interlocutory order of a district court of
the United States, the District Co~ 'of Guam, the District Court of the Virgin
Islands, or the District Court for the Northern Mariana Islands, granting or
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denying, in whole or in part!) a motion to transfer an action to the United States

Court of Federal Claims under section 1631 of this title.
(B) When a motion to transfer an action to the Court of Federal Claims is filed in a
district court, no further proceedings sha!l be taken in the district court until 60
days after the court has ruled upon the motion. If an appeal is taken from the
district court's grant or denial of the motion, proceedings shall be further stay~d
until the appeal has been decided by the Court of Appeals for the Federal Circuit.
The stay of proceedings in the district court shall not bar the granting of
preliminary or injunctive relief, w:here appropriate and where expec;lition is
reasonably necessary. However, during the period in which p~oceedings are stayed
as provided in this subparagraph, no transfer to the Court of Federal Claims
pursuant to the motion shall be carried out.
(e) The Supreme Court may prescribe rules, in accordance with section 2072 of
this title, to provide for an appeal of an interlocutory decision to-the courts of
appeals that is not otherwise provided for under subsectio~ (a), (b), (c), or (d).
28
u.s.c. 1651
(a) The Supreme Court and all courts established by Act of Congress may issue all
writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.
alternative writ or rule nisi may be i ssued by a justice or judge of a court
(b)
which has jurisdiction.
An
.28
u.s.c. 2241
(a) Writs ofh.a~eas corpus may be granted by the Supreme Court, any justice
thereof, the district courts and any circuitjudg~ within their respective
jurisdicti<;ms. The order of a circuit judge shall be entered in the records of the
district court of the district wherein the resti:aint complained o.f is had.
(b) The Supreme Court, any justice thereof, and any circuit judge may declineto
entertain an application for a writ of habeas corpus and may transfer the
application for hearing and determination to the district court having jurisdiction to
entertain it. ,
(c) The writ of habeas corpus shall not extend to a prisoner unless( I) He is in custody under or by colo~ of the authority of the United States or is
committed
trial before some court ther~of; or
for
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(2) He is in custody for an act done or omitted in pursuance of an Act of Congress,

or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United
.
States; or
( 4) He, being a citizen of a foreign state and domiciled therein is in custody for an
act done or omitted under any alleged right, title, authority, privilege, protection, or
exemption claimed under the commission, order or sanction of any foreign state, or
under color thereof, the validity and effect of which depend upon the law of
nations; or
.
(5) It is necessary to bring him into court to testify or for trial.
(cl) Where an application for a writ of habeas corpus is made by a person in
custody under the judgment and sentence of a State court of a State which contains
two or more Federal judicial districts, the application may be filed in the district
court for the district wherein such person is in custody or in the district court for
the district within which the State court was held which convicted and sentenced
him and each of such district cou'rts shall have concurrent jurisdiction to entertain
the application. The district court for the district wherein such an application is
filed in the exercise of its discretion and in furtherance ofjustice may transfer the
application to the other district court for hearing and determination.
(e) (I) No court, justice, or judge shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf of an alien detained by
the United States who has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such detennination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee
Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have
jurisdiction to hear or consider any other action against the United States or its
agents relating to any aspect of the detention, transfer, treatment, trial, or
conditions of confinement of an alien who is or was detained by the United States
and has been determined by the United States to have been properly detained as .an
enemy combatant or is awaiting such determination.
sou.s.c. 1541
(a) Congressional declaration
It is the purpose of this chapter to fulfill the intent of the framers of the
Constitution of the United States and insure that the collective judgment of both
the Congress and the President will apply to the introduction of United States
Armed Forces into hostilities, or into situations where imminent involvement in
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hostilities is clearly indicated by the circumstances, and to the continued use of

such forces in hostilities or in such situations.
(b) Congressional legislative power under necessary and proper clause
Under article I, section 8, of the Constitution, it is specifically provided that the
Congress shall have the power to make all laws necessary and proper for carrying
into execution, not only its own powers but also aJl other powers vested by the
Constitution in the Government of the United States, or in any department or
officer hereof.
(c) Presidential executive power as Commander-in-Chief; limitation
The constitutional powers of the President as Commander-in-Chief to introduce
United States Armed Forces into hostilities, or into situations where imminent
involv~ment in hostilities is clearly indicated by the circumstances, are exercised
only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
.
(3) a national emergency created by attack upon the United States, its territories or
possessions, or its armed forces.
50
u.s.c. 1543
(a) Written report; time of submission; circumstances necessitating submission;

information reported
In the absence of a declaration of war, in any case in which United States Armed
Forces are introduced(l) into hostilities or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for
combat, except for deployments which relate solely to supply, replacement, repair,
or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped
. for combat already located in a foreign nation;
the President shall submit w!thin 48 hours to the Speaker of the House of
Representatives and to the President pro tempore of the Senate a report, in writing,
setting forth(A) the circumstances necessitating the introduction of United States Armed
Forces;
(B) the constitutional and legislative authority under which such introduction took
place; and
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(C) the estimated scope and duration of the hostilities or involvement.

(b) Other information reported
The President shall provide such other information as the Congress may request in
the fulfillment of its constitutional responsibilities with respect to conunitting the
Nation to war and to the use of United States Anned Forces abroad.
( c) Periodic reports; semiannual requirement
Whenever United States Armed Forces are introduced into hostilities or into any
situation described in subsection (a) of this section, the President shall, so long as
such.armed forces continue to be engaged in such . hostifities or situation~ report to
the Congress periodically on the status of such hostilities or situation as well as on
the scope and -duration of such hq_stilities or situation, but in no event shall he
report to the Congress less often than once every six months.
so u.s.c. 1544
(a) Transmittal of report and referral to Congressional committees; joint request for
convening Congress
Each report submitted pursuant to section 1543 (a)(l) of this title shall be
, transmitted to the. Speaker of the House of Representatives and to the President pro
tempore of the Senate on the same calendar day. Each report so transmitted shall
be referred to the Committee on Foreign Affairs of the House of Representatives
and to the Committee on Foreign Relations of the Senate for appropriate action. If,
wheh the report is transmitted, the Congr~ss has adjourned sine die or has
adjourne.;I for any period fn excess of three calendar days, the Speaker of the House
of Representatives and the President pro tempore of the Senate, if they deem it
advis~ble (or if petitioned by at least 30 percent of the membership Qftheir
respective Houses) shall jointly request the President to convene Congress in order
that it may consider the report and take appropriate action pursuant to this section.
,I.
(b) Terrnipation of use of United States Armed Forces; exceptions; extension

period
Witjlin ~ixty calen~ days after a report is submitted or is required to be submitted
pursuant to section 1543 (a)(l) of this title, whichever is earlier, the President shall
terminate any use of United States Armed Forces with respect to which such report
was submitted (or required to be submitted), unless the Congress
(1) has declar<.'.d war or has enacted a specific authorization for such use of United
States Armed Forces,
(2) has extend~d by law such sixty-day period, or
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(3) is physically unable to meet as a result of an armed attack upon the United
States. Such sixty-day period shall be extended for not more than an additional
thlrty days if the President determines and certifies to the Congress in writing that
unavoidable military necessity respecting the safety of United States Armed Forces
requires the continued use of such armed forces in the course of bringing about a
prompt removal of such forces.
(c) Concurrent resolution for removal by President of United States Anned Forces
Notwithstanding subsection (b) of thls section, at any time that United States
Armed Forces are engaged in hostilities outside the territory of the United States 7
its possessions and territories without a declaration of war or specific statutory
authorization, such forces shall be removed by the President if the Congress so
directs by concurrent resolution.
Reg.T.Mil.Comm. 6-1 (2011)

(a) Military judges will preside over the military commissions. See 10 U.S.C.
948j;and R.M.C. 503(b).
(b) Organization. The Military Commissions Trial Judiciary will consist of
military judges nominated by the Judge Advocates Generals from the military
departments. The Chief Trial Judge will be selected from that pool of military
judges by the Secretary of Defense or his or her designee. See R.M.C. 503(b)(2).
a-17
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USCA Case #15-1023

UNCLASSIFI ED//FOR PUBLIC RELEASE

15-5020 & 15-1023

~ttltth~uft.S Qlnurf nf ~~>rm~lim~ity OITiee.r

ABD AL-RAIIlM HUSSEIN AL-NASHIRI~

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

IN RE: ABD AL-RAHIM HUSSEIN AL-NASHIRI

1620 Defense Pentagon

Counsel for Petitioner-Appellant

UNCLASSIFIED//FOR PUBLIC RELEASE

USCA Case #15-1023

UNC~ASSIFIED//FOR PUBLIC RELEASE

'L1' CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

and Amici Appearing Below

1. ~Abd Al-Rahim Al-Nashiri, Defendant-Petitioner

Obama, et al., Respondents

Curiae Retired Generals~ Admirals & Colonels, James

Brosnahan (on brief)

Curiae David Glazier, Thomas Mcintosh (on brief)

Parties and amici Appearing in this Court

Cl!B l"..bd Al-Rahim Hussein Al-Nashiri, Petitioner-Appellant

2. "'tl'1"U.S. Department of Defense, Respondent

(l:Jl Rulings under Review

consolidated two actions. The first is a petition for a writ of

mandamus and prohibition to the military commission created by Convening Order

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

USCA Case #15-1023

UNCLASSIFI ED//FOR PUBLIC RELEASE

reported as In re: Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015).

Dated: November 20, 2015

By: Isl Michel Paradis

UNCLASSIFI ED//FOR PUBLIC RELEASE

UNCLASSIFIED//FOR PUBLIC RELEAS E

USCA Case #15-1023

(t:J}i iJurisdictional Statement ................................................................................... xi

Statement of the Case .......................................................................... .-............. 1

(U) Summary of Argument..................................................................................... 27

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

II. ~Al-Nashiri's right not to be tried by a military commission is clear

Department of Defense may n<?t try offenses that did not

will suffer irreparable harm if he is tried for capital

relief will protect the public's interest in ensuring the

USCA Case #15-1023

UNCLASSIFIED//FOR PUBLIC RELEASE

V. ~he Di strict Court abused its discretion when it denied injWlctive

A. ~The district court's failure to decide the request for

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

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

USCA Case #15-1023

UNCLASSIFI ED//FOR PUBLIC RELEASE

*Grisham v. Hagan, 361 U.S. 278 (1960) .................................................. 35, 48, 49

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

UNCLASSIFIED//FOR PUBLIC RELEASE

USCA Case #15-1023

UNCLASSIFIED//FOR PUBLIC RELEASE

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

Jn re Yamasl1lta, 327 U.S. 1 (1946) ........................................................................... 35

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

Kinsella v. Singleton, 361U.S.234 (1960) ............................................................. 35

Masterson v. Hol11ard, 85 U. S. 99 (1873) ................................................................. 36

Schlesinger v. Council~an, 420 U.S. 738 (1975) ................ :............................ 60, 62

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