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Two Amicus Filings in Al-Nashiri v. MacDonald

Wells Bennett
Wednesday, October 10, 2012, 3:21 PM
Two more amicus briefs were filed, today and yesterday, respectively, in the case of Al-Nashiri v. MacDonald.

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Two more amicus briefs were filed, today and yesterday, respectively, in the case of Al-Nashiri v. MacDonald.   That's the civil suit, now pending before the Ninth Circuit, in which Abd Rahim Hussein Al-Nashiri has challenged power of the Military Commissions' Convening Authority, Bruce MacDonald, to prosecute Al-Nashiri before a military tribunal at Guantanamo.  Both amicus briefs side with Al-Nashiri. The first of them comes to us from a group of retired military officials - the same one that submitted an amicus brief in the case last week.  Their latest brief is substantively no different than its predecessor, but the newer one boasts more signatories.  Among these additions is Colonel Morris Davis, the former Chief Prosecutor at the Office of Military Commissions.  The brief's argument summary says, among other things:

The Complaint in this action alleges that the military commission established by the appellee here lacked subject matter jurisdiction because the laws of war did not apply in Yemen in 2000 and 2002. (E.R. 80-81.) Indeed, the underlying charges against the accused should be brought in a federal district court. See id. As this action was dismissed on a Federal Rules of Civil Procedure Rule 12 motion, the allegations in the Complaint must be taken as true. FED. R. CIV. P. 12(b)(6); Albright v. Oliver, 510 U.S. 266, 292 (1994). Indeed, as described belowand in the Complaint, the President and Congress stated that the United States was not at war in Yemen in 2000 and during the relevant period. (E.R. 77-79.) The President’s and Congress’s decision and pronouncements determining the scope of hostilities are definitive. By instituting military commissions here, however, the appellee has attempted to revise history by asserting that the United States was at war in Yemen during the relevant time—contrary to definitive pronouncements by the President and Congress.

The Complaint below raises a pure legal question: “Did the President or Congress choose to invoke their war powers and apply the law of war in Yemen at any time relevant to the allegations against the Plaintiff?” (E.R. 73.) By dismissing the Complaint on procedural grounds, the district court declined to address this important question. As a result, the appellee’s historical revision of “peace” into “war” and the unilateral decision of an administrative officer (not the President or Congress) to determine when the United States is at war continues unabated. The Court should not allow this result to stand.

Then there's a second filing, made by a group called Physicians for Human Rights.   From the filing's "summary of the argument" section:
In 2006, Mr. Nashiri was transferred to Guantánamo. Since then, he has been held in solitary confinement for most of his detention. He suffers significant psychological trauma. He has been denied contact with other detainees and provided limited access to a translator. He has now been detained by the United States for ten years, separated from his family and with little contact with other individuals. Torture survivors such as Mr. Nashiri remain particularly vulnerable for years. Those who care about their treatment take special precautions not to trigger responses that cause the survivors to relive the trauma. If the government wishes to prosecute Mr. Nashiri, let it do so in a lawful tribunal. It is cruel, however, to retraumatize Mr. Nashiri by making him endure a capital trial in a tribunal that is virtually certain to be held unlawful. Military commission rules, moreover, actually aggravate Mr. Nashiri’s suffering by forcing him to relive his torture. This Court can spare Mr. Nashiri such gratuitous and aggravated suffering by directing the district court to exercise its jurisdiction and proceed to the merits of his challenge to Convening Authority MacDonald’s order.
UPDATE [9:37 a.m., 10/11]: the original post has been corrected, so as to note that the second military officers' latest amicus brief is substantively identical to its predecessor.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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