Abd Al-Nashiri v. Bruce MacDonald , 741 F.3d 1002 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABD AL RAHIM HUSSEIN AL- No. 12-35475
NASHIRI,
Plaintiff-Appellant, D.C. No.
3:11-cv-05907-
v. RJB
BRUCE MACDONALD; PAUL
OOSTBURG SANZ, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
June 3, 2013—Seattle, Washington
Filed December 20, 2013
Before: Arthur L. Alarcón, M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge McKeown
2 AL-NASHIRI V. MACDONALD
SUMMARY*
Military Commissions Act
The panel affirmed the district court’s dismissal of an
action brought by a plaintiff non-citizen “enemy combatant”
challenging ongoing proceedings against him before a
military commission at the United States Naval Base in
Guantanamo Bay, Cuba.
The panel held that, pursuant to Hamad v. Gates,
732 F.3d 990 (9th Cir. 2013), Section 7 of the Military
Commissions Act of 2006 deprived the district court of
subject matter jurisdiction over plaintiff’s claims, which were
non-habeas claims. The panel rejected plaintiff’s claims
challenging the constitutionality of the Military Commissions
Act.
COUNSEL
Michel Paradis (argued), Office of the Chief Defense
Counsel, Washington, D.C.; Richard Kammen, Gilroy,
Kammen, Maryan & Moudy, Indianapolis, Indiana; Robert
Gombiner, Law Offices of Robert Gombiner, Seattle,
Washington, for Plaintiff-Appellant.
Sydney Foster (argued) and Robert M. Loeb, Attorneys,
Appellate Staff, and Stuart F. Delery, Principal Deputy
Assistant Attorney General, United States Department of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AL-NASHIRI V. MACDONALD 3
Justice, Civil Division, Washington, D.C.; Jenny A. Durkan,
United States Attorney, Seattle, Washington, for Defendant-
Appellee.
James J. Brosnahan, Somnath Raj Chatterjee, and Megan C.
Kiefer, Morrison & Foerster LLP, San Francisco, California,
for Amici Curiae Retired Military Admirals, Generals, and
Colonels.
David H. Remes, Appeal for Justice, Silver Spring, Maryland;
John T. Parry, Portland, Oregon; William J. Aceves, San
Diego, California, for Amicus Curiae Physicians for Human
Rights.
OPINION
McKEOWN, Circuit Judge:
Abd Al Rahim Hussein Al-Nashiri is a noncitizen “enemy
combatant” undergoing proceedings before a military
commission at the United States Naval Base in Guantanamo
Bay, Cuba. The charges against Al-Nashiri arose from his
alleged role in three terrorist plots: the 2000 attempted
bombing of the U.S.S. The Sullivans; the 2000 bombing of
the U.S.S. Cole, which killed seventeen U.S. military
personnel; and the 2002 bombing of the M/V Limburg, which
killed one civilian. Al-Nashiri seeks a declaratory judgment
that the military commission lacks jurisdiction to hear the
charges against him because the alleged acts occurred in
Yemen, where he argues no war or hostilities existed in 2000
or 2002. More specifically, he claims that Vice Admiral
Bruce MacDonald (Ret.), then the Convening Authority for
the Office of Military Commissions, over-stepped his
4 AL-NASHIRI V. MACDONALD
authority because “[t]he President and Congress uniformly
declined to confer [war-time] status on events in Yemen”
during that period. Consistent with our recent decision in
Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013), we hold that
Section 7 of the Military Commissions Act (“MCA § 7”) of
2006 deprived the district court of subject matter jurisdiction
over Al-Nashiri’s claims. 28 U.S.C. § 2241(e).
BACKGROUND
I. MILITARY COMMISSION AUTHORITY
Congress, by authorizing the use of military force
following the September 11, 2001 terrorist attacks, gave the
President the power to detain certain individuals as a
“fundamental and accepted . . . incident to war.” Boumediene
v. Bush, 553 U.S. 723, 733 (2008) (quoting Hamdi v.
Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion)).
Shortly thereafter, President Bush issued an order providing
for military commission trials of noncitizens he had reason to
believe had been or currently were members of al-Qaida or
had otherwise participated in terrorist activities directed at the
United States. Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism, 66 Fed. Reg.
57,833 (Nov. 13, 2001). A 2004 Department of Defense
order created the Combatant Status Review Tribunal to
determine whether the Executive Branch had properly
designated noncitizen detainees as “enemy combatants.”
Memorandum from Deputy Secretary of Defense Paul
Wolfowitz re Order Establishing Combatant Status Review
Tribunal § a (July 7, 2004), available at
http://www.defense.gov/news/Jul2004/d20040707review.pdf.
Absent such a designation, military commissions lack
authority over detainees. 10 U.S.C. § 948b (providing that
AL-NASHIRI V. MACDONALD 5
the MCA’s purpose is to “establish[] procedures governing
the use of military commissions to try alien unlawful enemy
combatants engaged in hostilities against the United States”);
cf. Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (stating that
“a citizen held in the United States as an enemy combatant
[must] be given a meaningful opportunity to contest the
factual basis for that detention,” i.e. his designation as an
enemy combatant).
After legal challenges on multiple fronts, in Hamdan v.
Rumsfeld, the Supreme Court invalidated, as violations of the
Uniform Code of Military Justice and the Geneva
Conventions, a number of the commission procedures
authorized by statute and executive order. 548 U.S. 557, 625
(2006). In response to Hamdan, Congress enacted the
Military Commissions Act of 2006. Pub. L. No. 109–366,
120 Stat. 2600 (2006) (“2006 MCA”), 28 U.S.C. § 2241(e)
(2006); see Boumediene, 553 U.S. at 735. The 2006 MCA
authorized trial by military commission for “alien unlawful
enemy combatant[s].” 2006 MCA § 3.
In 2009, Congress largely superseded the 2006 MCA and
provided detainees certain additional procedural safeguards.
Military Commissions Act of 2009, Pub. L. No. 111–84, 123
Stat. 2574 (2009) (“2009 MCA”), 10 U.S.C. §§ 948a et seq.
Relevant to these proceedings, the 2009 MCA authorized the
President to establish military commissions to try “alien
unprivileged enemy belligerents,” as opposed to the earlier
designation, “enemy combatants,” for violations of the law of
war and other offenses triable by military commissions.
10 U.S.C. §§ 948b(a)–(b), 948c. The offenses specified in
the 2009 MCA are “triable by military commission . . . only
if the offense is committed in the context of and associated
with hostilities.” Id. § 950p(c). Under the 2009 MCA,
6 AL-NASHIRI V. MACDONALD
hostilities are “any conflict subject to the laws of war.” Id.
§ 948a(9).
II. AL-NASHIRI’S PROCEEDINGS1
Al-Nashiri, a Saudi national, was arrested in Dubai in
2002 and held in U.S. custody. In September 2006, Al-
Nashiri was transferred to Guantanamo Bay, where he
remains in detention. The following year, a Combatant Status
Review Tribunal determined that Al-Nashiri was an “enemy
combatant.”2 Charges against Al-Nashiri alleging nine
violations of the MCA were referred to the Military
Commission Convening Authority in 2011. The charges
included the three referenced al-Qaida terrorist plots,
conspiring with Osama bin Laden and others between 1996
and 2002 to “commit Terrorism and Murder in Violation of
the Law of War,” and other related charges.
Following referral of these charges, Al-Nashiri formally
requested that MacDonald not convene a military
commission. Al-Nashiri principally argued that the
commission could not try him for the alleged offenses
because they “did not occur in the context of and were not
associated with hostilities.” This argument was based on a
statement by President Clinton in response to the U.S.S. Cole
bombing suggesting that it was a peacetime attack;
Congress’s failure to declare war or pass any other
1
In reviewing de novo the government’s motion to dismiss, we accept
as true the factual allegations in Al-Nashiri’s Complaint. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
2
Under the 2009 MCA, Al-Nashiri is now classified as an “alien
unprivileged enemy belligerent.” 10 U.S.C. § 948c.
AL-NASHIRI V. MACDONALD 7
authorization for the use of military force in response to the
U.S.S. Cole bombing; President Bush’s failure to certify the
existence of hostilities in Yemen until his War Powers
Resolution report to Congress in September 2003; and the
fact that Congress first recognized an armed conflict in
Yemen in a 2009 Senate resolution.3
MacDonald issued orders convening a commission to try
Al-Nashiri for the charges associated with the three terrorist
plots. In response, Al-Nashiri filed suit in the Western
District of Washington naming MacDonald, the sole
defendant, in his individual capacity. The Complaint alleges
that MacDonald’s military commission referral violated
10 U.S.C. § 950p(c); Article III § 2 of the Constitution; and
the Fifth, Sixth, and Eighth Amendments because the alleged
offenses did not “occur,” as a matter of law, “in the context
of and [were] not associated with hostilities.” He requested
a declaratory judgment stating that “neither the President nor
Congress certified the existence of an armed conflict subject
to the laws of war in Yemen prior to September 2003” and
3
See, e.g., The President’s Radio Address, 36 Weekly Comp. Pres. Doc.
2176, 2177 (Oct. 14, 2000) (containing President Clinton’s remarks in
response to the U.S.S. Cole bombing in which he stated that “even when
America is not at war, the men and women of our military risk their lives
every day” and that “[n]o one should think for a moment that the strength
of our military is less important in times of peace”); Letter to
Congressional Leaders Reporting on Efforts in the Global War on
Terrorism, 39 Weekly Comp. Pres. Doc. 1247, 1247 (Sept. 19, 2003)
(providing President Bush’s 2003 War Powers Resolution report to
Congress in which he stated that the United States had undertaken
“military operations against al-Qaida and other international terrorists in
the Horn of Africa region, including Yemen”); S. Res. 341, 111th Cong.
(2009) (enacted) (expressing concern about conflict between rebel forces
and the Government of Yemen resulting in civilian displacement “since
2004”).
8 AL-NASHIRI V. MACDONALD
that MacDonald “acted beyond his authority and in violation
of the constitution by issuing orders to convene a military
commission with the power to recommend the sentence of
death for allegations relating to” the three bombing incidents.
The district court dismissed Al-Nashiri’s suit for lack of
subject matter jurisdiction on the grounds that MCA § 7 and
sovereign immunity barred the claims. In the alternative, the
court reasoned that even if it had subject matter jurisdiction,
principles of restraint articulated in Schlesinger v.
Councilman, 420 U.S. 738 (1975), counseled in favor of the
court’s abstention from exercising equitable jurisdiction.
DISCUSSION
I. MILITARY COMMISSIONS ACT § 7
We first consider the threshold question of whether MCA
§ 7 stripped the district court of subject matter jurisdiction
over Al-Nashiri’s action. The answer, according to Hamad,
is yes.
Section 7 of the Military Commissions Act provides:
(1) 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
determination.
AL-NASHIRI V. MACDONALD 9
(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.
28 U.S.C. § 2241(e).
Subsection (1) is not applicable because Al-Nashiri is not
seeking a writ of habeas corpus. Subsection (2), however,
plainly applies to Al-Nashiri’s action. See Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 175 (2009) (“Statutory
construction must begin with the language employed by
Congress and the assumption that the ordinary meaning of
that language accurately expresses the legislative purpose.”)
(internal quotation marks omitted)). To begin, Al-Nashiri
seeks equitable relief based upon a non-habeas action against
an agent of the United States, MacDonald as the Convening
Authority. Al-Nashiri, a Saudi national, does not contest his
designation as an “enemy combatant.” Instead, he challenges
the government’s authority to proceed with his military
commission trial, arguing that the alleged offenses did not
occur in the context of hostilities. Finally, Al-Nashiri does
not fall under any of the exceptions in subsection (2)
permitting courts to hear certain cases under the Detainee
Treatment Act. See Detainee Treatment Act of 2005, Pub. L.
10 AL-NASHIRI V. MACDONALD
No. 109–148, div. A, title X, § 1005(e), 119 Stat. 2680(providing the D.C. Circuit with jurisdiction over limited
challenges, such as contesting combatant status review
standards and procedures and final decisions of a military
commission). Based on the allegations in the Complaint and
under the plain terms of § 2241(e)(2), MCA § 7 bars the
district court from exercising jurisdiction over Al-Nashiri’s
claims.
Recognizing the difficulty of overcoming the plain
language of MCA § 7, Al-Nashiri nonetheless argues that
MCA § 7 did not strip the district court of subject matter
jurisdiction because the Supreme Court in Boumediene struck
down MCA § 7 in its entirety, MCA § 7 does not apply to the
claims in this suit, and MCA § 7 is unconstitutional.4
A. MILITARY COMMISSIONS ACT § 7 AFTER
BOUMEDIENE
In Boumediene, the Supreme Court held that MCA § 7
“operate[d] as an unconstitutional suspension of the writ” of
habeas corpus for military detainees held in Guantanamo
Bay. 553 U.S. at 733. According to the Court, the
Suspension Clause had “full effect at Guantanamo Bay” and
MCA § 7 did not “purport to be a formal suspension of the
writ.” Id. at 771. In so holding, the Court did not specify that
a particular subsection of MCA § 7 was unconstitutional. Id.
4
In light of our decision, we need not reach Al-Nashiri’s other
arguments regarding abstention under Schlesinger v. Councilman or
whether MacDonald can assert sovereign immunity. See Sinochem Int’l
Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A]
federal court has leeway to choose among threshold grounds for denying
audience to a case on the merits.” (internal quotation marks and citation
omitted)).
AL-NASHIRI V. MACDONALD 11
at 795. The Court of Appeals for the D.C. Circuit later held
that Boumediene “applied only to the stripping of habeas
jurisdiction,” the first section of the statute, leaving in force
§ 2241(e)(2). Al-Zahrani v. Rodriguez, 669 F.3d 315, 319
(D.C. Cir. 2012).
In Hamad, we agreed with the D.C. Circuit, holding that
“the logic and context of [Boumediene] make clear that the
Supreme Court was addressing only § 2241(e)(1).” 732 F.3d
at 1000. Reasoning that Ҥ 2241(e)(2) is capable of
‘functioning independently,’ and is consistent with
Congress’s basic objectives in enacting the MCA,” we
concluded that § 2241(e)(2) is severable from § 2241(e)(1)
and “remains in effect, provided that it is constitutional.” Id.
at 1003. Hamad forecloses Al-Nashiri’s argument that
Boumediene struck down MCA § 7 as a whole.
B. APPLICABILITY OF MCA § 7 TO THIS SUIT
Even if MCA § 7 survives Boumediene, Al-Nashiri argues
that MCA § 7 does not apply to this suit for three reasons: he
is suing MacDonald “in his individual capacity,” not as an
“agent” of the United States; he is not objecting to “any
aspect of . . . trial,” but rather to the creation of the military
commission itself; and the legislative history of the 2009
MCA counsels against reading MCA § 7 to apply to his suit.
We disagree.
We are unpersuaded by Al-Nashiri’s claim that his suit is
against MacDonald as an individual and not as an agent of the
United States in his official capacity. The language of the
Complaint belies this assertion. The declaratory relief that
Al-Nashiri seeks is only meaningful if it binds the U.S.
government and its agents. He seeks a declaration that
12 AL-NASHIRI V. MACDONALD
“neither the President nor Congress certified the existence of
an armed conflict subject to the laws of war in Yemen prior
to September 2003” and that MacDonald “acted beyond his
authority and in violation of the constitution by issuing orders
to convene a military commission with the power to
recommend the sentence of death for allegations relating to”
the three bombing incidents. This requested relief is aimed
either at invalidating the referral order or convincing the
Convening Authority that it does not have jurisdiction over
Al-Nashiri, and would be futile if not directed “against the
United States or its agents” within the meaning of MCA § 7.
Cf. Wolfe v. Strankman, 392 F.3d 358, 367 n.2 (9th Cir. 2004)
(holding in a 42 U.S.C. § 1983 action that the plaintiff sought
declaratory and injunctive relief only available against
defendants in their official capacities).
Because this is an official capacity suit, we grant the
government’s motion to substitute MacDonald with Paul
Oostburg Sanz, who replaced MacDonald as the Convening
Authority in March 2013. See Fed. R. App. P. 43(c)(2)
(“When a public officer who is a party to an appeal . . . in an
official capacity . . . ceases to hold office . . . [t]he public
officer’s successor is automatically substituted as a party.”).
Al-Nashiri’s citation to Larson v. Domestic & Foreign
Commerce Corporation, 337 U.S. 682 (1949), is unavailing.
In Larson, the Supreme Court held that sovereign immunity
does not bar suit for specific relief against a government
official when, for example, the official purports to act as an
individual and acts ultra vires, or if the official commits an
unconstitutional act because the “statute or order conferring
power upon the officer to take action . . . is claimed to be
unconstitutional.” Id. at 689–90. Not only is MCA § 7
constitutional, the only action MacDonald took—issuing
AL-NASHIRI V. MACDONALD 13
orders to convene a military commission—was in his official
capacity. Congress also impliedly sought to limit judicial
review here by enacting an alternative remedial scheme. As
the Supreme Court explained, “[individual] relief can be
granted, without impleading the sovereign, only because of
the officer’s lack of delegated power. A claim of error in the
exercise of that power is therefore not sufficient.” Id. at 690.
Al-Nashiri cannot simply convert his suit to an “individual”
action by invoking that magic word in his Complaint. We
need not address whether his suit is barred by sovereign
immunity because it falls squarely within the jurisdiction-
stripping provisions of MCA § 7.
Al-Nashiri’s effort to sidestep the jurisdictional bar on the
ground that he is not objecting to the creation of the military
commission itself fares no better. He urges that his challenge
to the military commission’s authority over the charges
against him does not constitute “any aspect of . . . trial.” The
broad phrase—“relating to any aspect of . . . trial”—naturally
includes the threshold question whether the tribunal has
jurisdiction over the parties and claims. MCA § 7(2).
Indeed, Congress expressly provided the military
commissions with this authority, stating that a “military
commission is a competent tribunal to make a finding
sufficient for jurisdiction.” 10 U.S.C. § 948d. We note that
after briefing in this appeal, the Military Commissions Trial
Judiciary, Guantanamo Bay, Cuba, denied without prejudice
Al-Nashiri’s motion to dismiss based on his claim that the
Convening Authority exceeded his authority. Order, No.
AE104 F (Jan. 13, 2013). The military judge held that
‘[w]hether hostilities existed between Al Qaeda and the
United States on the dates of the accused’s alleged acts is a
question of fact and an element of proof, which must be
carried by the government.” Order at 5. The tribunal further
14 AL-NASHIRI V. MACDONALD
held that, as a matter of law, it owed “judicial deference” to
the political branches’ collective determination as to the
existence of hostilities. Order at 6.
Al-Nashiri also points to the legislative history of the
2009 MCA, claiming that it undermines the application of
MCA § 7 to his claims. The 2009 MCA omits 10 U.S.C.
§ 950j(b), a statutory provision from the 2006 MCA that
barred courts from hearing “any claim or cause of action
whatsoever . . . relating to the prosecution, trial, or judgment
of a military commission.” Al-Nashiri thus argues that, in
effectively repealing this provision, Congress could not have
intended to maintain such broad jurisdiction-stripping
language in MCA § 7 for non-habeas claims.
We return to the “plain language of the statute, which
controls unless its application leads to unreasonable or
impracticable results.” Valladolid v. Pac. Operations
Offshore, LLP, 604 F.3d 1126, 1133 (9th Cir. 2010) (internal
quotation marks omitted). As discussed above, the plain
language of MCA § 7 controls—all judicial jurisdiction is
barred for a non-habeas action. This result is both reasonable
and practicable. The history of § 950j(b) points to no
exception for non-habeas claims. Nor was the section singled
out for omission. Rather, Congress replaced the entire
chapter of which it was a part. See Pub. L. No. 111–84, div.
A, tit. XVIII, § 1802, 123 Stat. at 2574–612. It revised the
language governing military commissions and granted the
D.C. Circuit exclusive authority to “determine the validity of
a final judgment rendered by a military commission” when
other review procedures had been exhausted. 10 U.S.C.
§ 950g(a). Nothing in the text suggests that Congress
intended to exempt non-habeas claims from the requirements
of MCA § 7.
AL-NASHIRI V. MACDONALD 15
C. CONSTITUTIONALITY OF MCA § 7
Al-Nashiri also claims that MCA § 7 violates his right to
equal protection under the Fifth Amendment5 and constitutes
a bill of attainder. Both arguments were rejected in Hamad,
where we held that “Congress’s decision in § 2241(e)(2) to
preclude only alien detainees captured as part of the war on
terror from bringing damages actions easily passes rational
basis review.” 732 F.3d at 1006. We concluded that the
classification served a “legitimate foreign policy concern[] by
ensuring that members of the armed forces are not unduly
chilled in conducting the war on terror by concerns about
foreign nationals targeting them with damages claims.” Id.
(internal citation and quotation marks omitted).
Hamad also addressed an identical bill of attainder
challenge. Our rejection was swift: § 7 does not violate the
Bill of Attainder Clause, U.S. Const. art. I, § 9, cl. 3,
“because it does not inflict legislative punishment” as
historically understood. Hamad, 732 F.3d at 1004.
“Congress enacted § 2241(e) to limit and channel federal
court review of detention and military commission decisions,
5
Although Al-Nashiri did not raise this Fifth Amendment argument in
the district court, we consider it here because it is a question of law that
easily is disposed of by Hamad. United States v. Flores-Montano,
424 F.3d 1044, 1047 (9th Cir. 2005) (“While issues not raised to the
district court normally are deemed waived, we have recognized three
narrow exceptions to this general rule,” including where “the issue
presented is purely one of law and the opposing party will suffer no
prejudice as a result of the failure to raise the issue in the trial court”)
(internal quotation marks omitted)).
16 AL-NASHIRI V. MACDONALD
not to impose any particular punishment on military
detainees.” Id.AFFIRMED.