Published by The Lawfare Institute
in Cooperation With

Wells already flagged yesterday's D.D.C. decision by Judge Roberts, refusing to enjoin Abd Al Rahim Hussayn Muhammad Al Nashiri's impending trial by military commission, and abstaining from reaching the merits of his habeas petition until and unless he's convicted and is unsuccessful in the direct post-conviction appeal provided by the Military Commissions Act. Interested (or, at least, hyper-attentive) readers may recall my earlier posts about this exact issue, and my effort to explain why this kind of abstention (called "Councilman abstention" after the 1975 Supreme Court case in which it was articulated) is especially inappropriate in cases like Nashiri's--as Justice Stevens all-but recognized in footnote 20 of his opinion for the Supreme Court in Hamdan v. Rumsfeld. I won't rehash those arguments here, especially because there's little in Judge Roberts's analysis that my prior posts didn't already address).  Instead, separate from my prior objections to applying Councilman here, I want to offer two additional points about why abstention in Nashiri's case makes so little sense--and endeavor do so below the fold. First, it's worth remembering that the proceedings in Nashiri are already on hold, thanks to the government's interlocutory appeal of the trial judge's dismissal of part of the charges against Nashiri, and Nashiri's mandamus application to the D.C. Circuit challenging the composition of the panel of the Court of Military Commission Review (CMCR) set to hear that appeal. Indeed, the D.C. Circuit has stayed the proceedings before the CMCR pending the resolution of Nashiri's mandamus application, which is scheduled for oral argument before a three-judge panel on Tuesday, February 10, 2015. Even if the D.C. Circuit rejects Nashiri's mandamus application either on the merits or for lack of jurisdiction, the CMCR--a tribunal not exactly known for its expeditiousness--must still rule on the merits of the government's interlocutory appeal. And so, unlike the typical Councilman case, this is not a situation where allowing Article III litigation to go forward would have interfered with the processes of the military trial court. Those processes have already been interfered with, and show no sign of resuming anytime soon. It therefore seems likely, if not certain, that the district court could have resolved the merits of Nashiri's claims long before anything happened in the military commission... Second, and more fundamentally, as I wrote back in May,
The animating premise behind Councilman is that, in most cases, military courts are in a relatively better position to provide experienced, efficient, and, where necessary, expedited review of the defendant’s claims—and that, by contrast, collateral review before generalist judges in the civilian courts is inefficient, time-consuming, and expensive.
As noted above, it's already the case that there's no scenario in which Nashiri's merits claims would be resolved more quickly by the military commission. But at a more basic level, abstention doctrine is based on "comity"--on the idea that independent judicial systems will defer to their counterparts in situations in which such deference is called for. Thus, federal courts will abstain from entertaining most pre-trial challenges to state criminal prosecutions because of the respect owed to the independent state judicial system. And, under Councilman, they'll abstain from entertaining non-jurisdictional pre-trial challenges to courts-martial for the same reasons. In both cases, the theory is that we should trust these systems to correct many, if not most, of their errors. Abstention in favor of the military commissions differs from these other examples in two critical respects: For starters, the commissions simply don't have the same kind of track record and settled legitimacy that justifies such respect and deference. One need look no further for proof of this conclusion than the en banc D.C. Circuit's decision in al Bahlul, which unanimously reversed convictions for material support and solicitation even under plain error review. It's hard to overstate how complete a repudiation of the commissions such a ruling necessarily provides. And it's not as if there are a host of decisions by the commissions militating in the opposite direction--and that have survived appellate review on their own terms. And although it's subtle, it's worth emphasizing that, structurally, the commissions are not actually independent of the Article III courts; they're directly subservient thereto. Unlike state courts, where the only direct Article III oversight comes from the Supreme Court's discretionary certiorari jurisdiction, and courts-martial, where the Supreme Court's certiorari jurisdiction isn't even plenary, the Article III D.C. Circuit exercises direct supervisory jurisdiction over the commissions--as the mandamus proceedings in Nashiri tellingly illustrate. In other words, applying abstention in a case like Nashiri completely ignores the fact that it's the same court supervising both Nashiri's habeas claim and his trial. Is the D.C. Circuit really supposed to defer to itself? At least according to yesterday's decision by Judge Roberts, the answer is yes.

Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

Subscribe to Lawfare