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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.