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Thoughts on Al Nashiri II

Benjamin Wittes
Wednesday, August 31, 2016, 10:38 AM

Steve Vladeck this morning beat me to the punch on a key takeaway about the Al Nashiri II decision yesterday. But his attitude toward the subject is a bit different from mine. So while I agree with him on a crucial bottom-line point, I would formulate the matter a bit differently.

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Steve Vladeck this morning beat me to the punch on a key takeaway about the Al Nashiri II decision yesterday. But his attitude toward the subject is a bit different from mine. So while I agree with him on a crucial bottom-line point, I would formulate the matter a bit differently.

First, while Steve makes the issue at stake in Nashiri II seem like an easy one with a right answer—"You probably don't care if the court of appeals correctly applied Councilman (spoiler alert: it didn't)"—the case is actually a hard one, a hard issue layered on top of another hard issue. In contrast to Steve's somewhat dismissive tone towards the majority opinion, written by Judge Thomas Griffith for himself and Senior Judge David Sentelle, the dissenting judge, David Tatel describes the matter as "a difficult question" on which Griffith makes "a strong case." So while I agree with a big chunk of Steve's argument, a matter to which I will return momentarily, he's a bit too breezy in my view in describing the matter as though there's a simple right and wrong answer to the abstention question here. I'll leave the doctrinal dispute to him and to Peter Margulies, but suffice it for now to say that I think Steve overstates the matter when he says the decision "doesn't make any sense doctrinally."

Moreover, the question underlying the whole dispute—whether the Al-Nashiri military commission has jurisdiction over the defendant's pre-9/11 conduct with respect to the attack on the USS Cole—is also a hard one. The majority describes the parameters of the dispute on pp. 48-52 of Griffith's opinion. And as Judge Tatel notes, "the military commission has concluded that it will not fully determine its own jurisdiction, in the first instance, until trial." The majority describes the dispute, aptly in my view, as follows: "The disagreement between the parties thus boils down to two central questions: Should the existence of hostilities be determined based on the totality of the circumstances, or only on the understanding of the political branches? And may it be based on a retrospective analysis, or only on what decisionmakers believed at the time of the events? Al-Nashiri and amici believe the judgements of the political branches at the time are what matters; the government takes a broader view." Neither the majority nor Judge Tatel ventures an answer to these questions beyond the majority's assertion that Al-Nashiri has not established definitely that he is right on the matter, and Judge Tatel does not argue that the matter is sufficiently clear as to warrant the writ of mandamus which Nashiri sought. So we're dealing here with a hard absention question layered on top of a serious jurisdictional question.

Third, I have the highest regard for Judge Tatel; he's one of those judges who always has a compelling and interesting argument in dissent. And I understand why based on the record before the court, he argues against abstention as he does. Tatel's core argument is that Al-Nashiri claims that because of his torture at the hands of the same executive branch that now asks for deference and judicial abstention, he will suffer irreparable psychological damage if he is made to go through a military commission trial, and that the record evidence Al-Nashiri has submitted on this point is unchallenged by the government. These facts, he argues, make the abstention question here utterly unlike Councilman. This may be the strongest argument against abstention available based on the record actually before the court.

That said, it strikes me as by no means the strongest argument against abstention, and Judge Tatel's focus on it obscures what for me is a far stronger argument for proceeding with consideration of the jurisdictional question. The simple reason is that whatever the facts in the record as it stands now, I simply do not believe that the marginal difference between the stress of a military commission trial versus the stress of a capital trial in federal court (which is the likely alternative to military commision trial) is what's going to send Al-Nashiri permanently over the edge. Judge Tatel doesn't get to say "but that's ridiculous" to uncontradicted record evidence, but I do get to say that. And let's face it: the idea that a military commission is going to cause irreparable psychological damage to Al-Nashiri but a federal court trial will not is, well, ridiculous.

Fourth, there is, however, a much stronger argument against abstention, and it's the time- and energy-management argument that Steve makes in his piece but to which the court—both the majority and the dissent—allude only in passing. Steve puts it this way:

Is abstention really appropriate when it might be the better part of a decade before the defendant is once again able to raise the basic legal question at issue before an Article III court -- and when, all the while, the defendant, who is facing a potential death sentence, is in limbo as to whether the court trying him even has the power to do so?

. . .

[I]f the government is wrong on the merits, and the commissions lack jurisdiction to try Al-Nashiri for the Cole bombing, what the hell is the point of spending millions of dollars and tens of thousands of man-hours on a capital trial and potential death sentence that will have to be vacated on appeal?"

This argument bothers me, rather a lot. Let's agree for purposes of argument that the underlying question of the commission's jurisdiction is hard and close. The majority notes that there appear to be Supreme Court justices on both sides of it. And anyone who is being honest will acknowledge that we don't really know how the future-composed Supreme Court or the future-composed D.C. Circuit will consider the question of when the war against Al Qaeda really started for legal purposes. I am not sure I see the value of abstention to the extent it serves to defer consideration of an important threshold jurisdictional question for years until after a conviction when the result may well be an intense investment of effort, money, and—most importantly—elapsed time in order then only to require a do-over in federal court. I assess the chance of this do-over at roughly 50 percent, given the difficulty of the question at issue and the strength of the argument Al-Nashiri can make on the commission's jurisdiction. Whoever has the better of the doctrinal argument, it seems a little nutty to me to go through years more of litigation knowing there's a substantial chance of it being all for nought.

But for better or for worse, that is water under the bridge at this point. The result of Nashiri II is that we know a few big things we did not know yesterday morning: the federal courts are not going to intervene; Al-Nashiri will go to trial in a military commission; this case is going to take a very long time; and it's going to proceed with a good bit of jurisdictional doubt that will some day require a reckoning.

UPDATE: I should have mentioned in the original post that, at least under current law, Al Nashiri cannot be tried in federal court, because he cannot be brought to the U.S. for trial. So the practical choice here absent an act of Congress is not between trying him in a military commission and trying him in a federal court. It's between trying him in a military commission and not trying him at all. And if, in fact, he is convicted only to have the conviction overturned because of a lack of military commission jurisdiction, it would take an act of Congress for the do-over I describe above to happen. Query whether it might make a lot more sense for Congress to change that rule now and for the executive branch to make a hard-headed determination prospectively whether it prefers to proceed in federal court, assuming it can do so.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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