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SPECIAL ACCESS REQUIRED TOP 9E!6ffE!T ,// """'//7 , I ' UNCLASSIFIED//FOR PUBLIC RELEASE :/ / // //>7 PUBLIC RELEASE No. 3111 @171): 5113mm (hurt at the whiten games Filed with Classi?ed Information Sequrity Of?cer ABD AL-RAHIM AL-NASHIRI, CISO Petitiorg?te V. BARACK OBAMA, et Respondents. 9 On Petition For AWrit Of Certiorari To The United States Court Of Appeals For The District of Columbia Circuit PETITION FOR AWRIT OF CERTIORARI RICHARD KAMMEN MICHEL PARADIS KAMMEN MOUDY Counsel of Record 135 N. St., #1175 LCDR JENNIFER POLLIO, USN, JAGC Indianapolis, IN 46204 ROSA ELIDEs MARY SPEARS NANCY KRISTINA HON FREEDMAN BOYD HOLLANDER US. DEPARTMENT OF DEFENSE GOLDBERG URIAS WARD P.A. MILITARY COMMISSION DEFENSE 20 First Plaza, Suite 700 . ORGANIZATION Albuquerque, NM 87102 1620 Defense Pentagon - Washington, DC 20301 1.703.696.9490 x115 michel.paradis@0sd.mil Counsel for Petitioner PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE PRESENTED Case. Nine years ago. petit.ioner was charged with capital crimes before a military com.mission in Guantanamo. Petitioner challenged the Department of Defense's statutory and constitutional authority to convene this commission via a petition for a writ of a habeas corpus and a petition for a writ of mandamus. Though the petitions challenged the very authority of the commission to proceed with trial, a divided panel of the D.C. Circuit held that such challenges may only be brought after a trial has already occurred. Petitioner's trial date is not. yet scheduled and the earliest any post-conviction appeal in the D.C. Circuit is projected to occur is 2024. This raises three interrelated questions: 1. the majority err in ex.tending the abstention doctrine associated with Schlessinger u. Councilman, 420 U.S. 738 (1975), to trial by military commission, when doing so foreclosed a core habeas corpus claim'? 2, the "extraordinary ci'rcumstance'; exception to abstention met where a capital defendant can show that trial will cause irreparable injuries that flow directly from respondents·· own misconduct and, in ('larticular, respondents' decision to subject him to years of "physical, psychological, and sexual torture"? 3. circujts are divided over whether questions of first impression are reviewable when raised via a petition for a writ of mandamus. Is the D.C. Circuit's uniquely restrictive standard, whereby any "open question" oflaw is categ_orically unreviewable via mandamus, inconsistent with the All Writs Act? 1 UNCLA.SSlFIED//FOR PUBllC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE Of PARTIES ft$) All parties do not appear in the caption of the case on the cover page. A list of aU parties to the proceeding in the coUrt whose Judgment. is the subject of this petition )s as fol lows: Abd Al-Rahim Al-Nashiri, petit.10nor; Barack Hussein Obama, President of the United States; Ashton Carter, Secretary, Department of Defense; Robert Work, Acting Convening Authority, Department of Defense. Office of Military Commissions; Joseph Biden, Vice President of the United John Kerry, Secretary, Department of State; John Brennan, Director, Central Intelligence Agency; CAPT David Culpepper, USN, Commander of U.S. Nava1 Station Guantanamo RADM Peter J . Clarke, USN, Commander of Joint Task Force Guantanamo; John Doe, et al., persons acting under actual or apparent authority, or color of law, of foreign nations u UNCLASSIFlED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE CORPORATE DISCLOSURE STATEMENT corporations are parties, and there a.re no p anmt companies or publicly held companies owning any corporation's stock . Ill UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE OF CONTENTS of authorities .................................................................................................vi statutory provisions involved ............................................ ,.... ix for writ of c.ertiorari .................... ., .... ,........................................................ 1 below ............................... .......................................................................... 1 .., ................................................... , ...................... ,.................................1 statement ............................................................................ ..............,.. 1 tUj Statement of the case ............................................................................................... 6 for granting the petition ..........................................................................21 corpus must remain available when a petitioner raises a substantiaJ chaJlenge to a military commission's jurisdiction .................. ................................................................ 21 should not apply when a capital trial is of doubtful legality and will cause irreparable injuries that are the result of extreme government misconduct ...... ., ........................ ,.. 29 majority's unduJy restrictive view of its III. mandamus jurisdiction is at odds with other circuits and the All Writs Act ........................................................ .............. ........................... 33 _.Conclusion .............................................................................................................. 38 lV UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE AA APPENDIX (App.): In re: Al-Nashiri, Case Nos. 15-1023 & 15-5020, slip op. (D.C. Cir., Aug. 30, 2016) ........................................................................ 1.78 Al-Nashiri v. Obama, et al., Case No. 08-1207, Memorandum Opinion and Order (D,D.C., Dec. 29. 2014) .............................. 79·88 United States v. Al-Nashiri, Order AE104F (Jan. 15, 2013) ............................ 89-96 In re: Al-Nashiri, Case Nos. 15-1023 & 15-5020, Per Curiam Order (D.C. Cir., Oct. 19, 2016) .......................................................... 97 · AJ-Nashiri v. Obama, et al., Case No. 08-1207, Supplemental Petition for a Writ of Habeas Corpus (D.D.C., i\pr. 21, 2014)." ............................................................. ..................... 98-117 FIED APPENDIX (Class.App.): The contents of the Classified Appendix have been filed under seal. v UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSlFIEO//FOR PUBUC RELEASE -fST-TABLE OF AUTHORITIES Cases Abelesz v. Erste Group Bank, 695 F.3d 655 (7th Cir. 2012) .................................. 35 Baker v. Carr, 369 U.S. 186 (1962) .............................. ................... ,. ...................... 23 Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013) ............................... .. .........34 Boumediene v. Bush, 553 U .S. 723 (2008) ......... '" ............................................. 28, 29 CF1'C v. Schor, 478 U.S. 833 (1986) ....................................................................... 24 Cheney v. United States District Court, 542 U.S. 367 (2004) .............................. '..34 Doe 11. Exxon, 473 F.3d 345 (D.C. Cir. 2007) .......................................................... 34 Ex JJmm i . mmrm>mm PUBLIC RELEASE Mhe RDI Program quickly achieved its desired effect: petitioner broke down He developed a phobia of water and, when showering, kept the water pressure low. Class.App. 158. For approximately one year after being publicly transferred from the RDI Program to Guantanamo in 2006, he avoided leaving his cell altogether. Ibid. ?Aggravating these circumstances are petitioner?s documented mental limitations. Petitioner, for example, failed to graduate high school until twenty-five. Class.App. 171. And from early in his - con?nement, government agents noted signs of mental disability, which made petitioner particularly vulnerable to abuse. Soon after his seizure, one report described his? 13 PUBLIC RELEASE PUBLIC RELEASE ?lass.App. 269, and proven inability to adapt to unanticipated events. Class.App. 241. And the Deputy Director of Operations responsible for the RDI Program concluded that petitioner?s observed mental function contradicted earlier preconceptions that he was the ?mastermind? of the USS COLE bombingzimMastermind? was not an apt description of al-Nashiri. One of our interrogators described him to me as ?the dumbest terrorist I have ever met.?? Class.App. 238. Mn late 2012, military commission prosecutors requested a competency board evaluate petitioner. It found that petitioner presented with nightmares that invoked being chained, naked, and waterboarded, and that he c0ntinues to suffer from Post-Traumatic Stress Disorder and Major Depressive Disorder. Class.App. 158, 161-64. This diagnosis was corroborated by. Dr. Sondra Crosby. Class.App. 125. She found that petitioner ?fsuffers from [untreated] post-traumatic stress with its concomitant hypervigilance, ?ashbacks, sleep disorders, and nightmares. Class.App. 125, 228. He also has ?[m]ultiple other physical complaints, headaches, chest pain, joint pain, stomach pain.? Class.App. 228. In particular, he has ?persistent and chronic anal-rectal complaints, difficulty defecating, bleeding, hemorrhoids, [and] pain with sitting?? ?very common in survivors of sexual assault.? Class.App. 233?34. While 14 PUBLIC RELEASE UNCLASSlFIED//FOR PUBLIC RELEASE long-lasting effects from torture would be expected1 she found tbat factors unique to Guantanamo and the military commission syst.em e:xacerbatc petitioner's symptoms. Class.App .. 126. have never alleged petitioner's involvement in the 2. September 11th attacks, war in Afghanistan, or any other hostilities. In September 2006, however, respondents brought to be held as a so-called nenemy combatant." App. 105. In 2008, the Department of Defense ordered petitioner to stand trial befo1·e a military commission in Guantanamo for his alleged involvement in the plot to bomb the USS COLE in Yemen i'n October 2000 and a plot to bomb a French oil tanker in Yemen in 2002. Ibid. These charges carry the death penalty and lal'gely mirror a capital indictment in which petitioner was named an unindicted co-conspirator that has been pending in the Southern District of New York since 2003. Ibid. Petitioner has consistently protested the legality of his trial by militaxy commission as unconstitutional and as u,ltra vires of the Military Commissions Act of 2009, 123 Stat. 2190 (2009) (2009 Act). Specifically, the 2009 Act authorizes the Depar:tment of Defense t.o convene military commissions to try "oO'ensea triable by military commission as provided in this-chapter." 10 U.S.C. 948b(b). The 2009 Act. then circumscribes that authority such that an "Qffense specified in this subchapter is triable by milita.cy commi ssion under this chapter only if the offense is committed in the context of and associated with hostilities." 10 U.S.C. 950p(c). ''Hostilities" is defined a s a ''conflict subject to the laws of war." 10 U.S.C. 948a(9). 15 UNCLASSCFIED//FOR PUBLIC RELEASE UNCLASSlFIED//FOR PUBLIC RELEASE on the unc-0otroverted public record, all the allegations against petitioner took place before the first :recognition of any hostilities in Yemen in September 2003. This includes the period surrounding the bombirtg of the USS COLE in Octoher 2000, when President Clinton declined to invoke the law of war and insisted instead that the country .remained at peace: [E]ven when America is not at war, the men and women of our military ris k their lives every day ... No one should th.ink for a moment that the strength of our military is less important in times of peace, because the strength of our military is a major reason we are at peace. The President's Radio Address, 36 Wkly. Comp. Pres. Doc. 2464 (Oct. 14, 2000). The President further reported to Congress that additional U.S. personnel were deployed to Yemen "solely for the purpose of assisting in on-site security.') Letter w Congressional Leaders Reporting on the Deployment of United States Forces in Response lo the Altock on the USS COLE, 36 Wkly. Comp. Pres. Doc. 2482 (Oct. 14, 2000). The FBI led the investigation, which resulted in the grand jury indictment, in the Southern District of New York in 2003. App. 105. the attacks of September 11, 2001, Congress passed the Authofrz.ation for the Use of Military Force (AUMF), 115 Stat. 224 (codified at 50 U.S.C. 1541, note). The AUMF autbnrized the President "to use all necessary and appropriate force against those nations, organizations. or pers6na'1 responsible for the September 11th attack. Id. §2(a). The AUMF supplements the War Powers Resolution. 87 Stat. 555 (1973) (codified at 50 U.S.C. 1541, et seq.). Id. §2(b)(l). When drawing upon th(' AUMF to recognize hostilities in specific places, the President has done so via War-Powers Resolution reports. e.g., Letter to the 16 UNCLASSfFIED//FOR PUBLIC RELEASE UNCLASSIFJED//FOR PUBLIC RELEASE Speaker of the Hou,se of Representatives and the President Pro Tempore of the Senate, 37 Wkly. Comp. Pres. Doc. 1447 (Oct. 9, 2001) (hostilities in.Afghanistan) , --tB71I'he President did not extend the AUMF's war-making authorities to Yemen until September 19, 2003, nearly a year after petitioner was in custody. Letter to Congressional Leaders Reporting on Efforts in, the Global War on, Terrorism, 39 Wkly. Comp. Pres, Doc. 1247 (Sept. 19, 2003). This was the first public act designating Yemen a theater of hostilities. 3. fUi7 Petitioner has objected to his trial by military commiRsion through every approp.riate procedural vehicle. At every tum, the merits of his claim - tbe fundamental questions of when and where Ame1·ica is at war- have been avoided and deferred. the military commission, the presiding military judge presumed the validi:ty of petitioner's trial because the Department of Defense brought trhe prosecution without being personally countermanded by the President. App . 89. And when petitioner raised his claim via habeas corpus. respondents cross-moved to hold petitioner's habeas case in abeyance based on the abstention doctrine articulated in Schlessin.ger v. Councilman., 420 U.S. 738 (1975). Respondents further proteRted that habeas should be denied because "if any Court were to have jurisdiction over petitioner's challenge, it would be the D.C. Circuit on mandamus in relation to .its exclus.ive [appellate] jurisdiction." Al-Nashiri u. Obama, et al., Case No. 08-1207, Resp. Opp., at 9 n.7 (D.D.C. May 15, 2014). The district court granted respondents' cross•motion. App. 79. 17 UNCLASSIFIEDJ/FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBUC RELEASE appealed to the D.C Cfrc\lit and, following .respondents' suggestion, simultaneously raised his claim via a petition for a writ of mandamus. App. 10-11. On August 30, 2016, a divided panel of the D.C. Circuit affirmed the district court's abatement of proceedings and denied petitioner's petition for a writ of mandamus. Judge Tatel dissented. In reaching both results, the majority declined to decide the legal merits of petitioner's challenge. -teTWit.h respect to habeas, the majority affirmed the extension of ''the prmciples announced in Councilman to Al-Nashiri's case ." App. 15. While acknowledging that this Court has never extended abstention doctrjnes to military commiGsions, the majorit.y determined that it was appropriate to ext.end Councilman. because of the facial '1M.equacy of the alternative system in protecting the rights of defendants and the importance of the served by allo'wing tha t system to proceed uninterrupted by federal courts." App . 21 (original emphasis). With ;respect to "adequacy.'' majority refused to "evaluate the on-the-ground performance" of lhc military commissions, but instead looked to the facial of the military commissions; po.st-trial review mechanisms with those of the courtmartial system. With respect. to "importance," the majority defe.rred to the judgment of the political branches "that the ordinary federal court process was not suit.able for trying certain enemy belligerents." App. 28.. Because the statute provided for no pre- trial Article IIJ review , the Circuil reasoned the political branches implicitly determined that judicial review should be exclusively po6t-conviction. App. 27_ 18 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSlFIED//FOR PUBLIC RELEASE majority then concluded that no exception to abstention was warranted. App. 37. Though petitioner has been in U.S. custody since 2002 and has faced capital charges before a military commission in Guantanamo since 2008, the majority ruled that this did not constitute unreasonable delay warranting judicial intervention. App. 51. The majority also ruled tbat the irreparable injuries petitioner faces because of tortµre did not qualify for the "extraordinary circumstances" exception because he could not show that they rendered the military commission biased. App. 37. majority then denied lihe petition for a writ of mandamus "because [petitioner] has not met tbe high bar of showing a 'clear and indisputable' right to issuance of the writ." App. 55. Petitioner argued tbat the political branches' deteTmination of dates of host.ilities' beginning in Yemen in September 2003 was dispositive based on this Court's decisions in cases like The Protector, 12 Wall. 700 (1871). App. 59 .. Respondents argued that the existence of hostilities should be determined by the militaey officers assigned to serve as the military commission's "jury'' as a question of fact "based on the totality of the circumstances." App, 56. The majority concluded that it need not decide because "whether hoRtilities against al Qaeda existed at the time .o f Al-Nashids alleged offenses. and whether AJ-Nashiri's conduct in Yemen took place in the context ofthose hostilities, are open questions. And open questions are the antithesis of the 'clear and indisputable' right needed for mandamus relief." App. 58 (quotations omitted). 19 UNCLASSIFJED//FOR PUBLIC RELEASE UNCLASSlFIEDJ/FOR PUBLIC RELEASE Tatel would have remanded the case to proceed on the merits via habeas corpus. Abstention, he reasoned, was not justified by ''one of the primary considerations-perhaps the primary Councilman's abstention doctrine," namely, "the importance of avoiding judicial interference in the military's unique relationship with its service[-]members[.]" App . 61 (original emphasis). In addition, the military commissions' checkered history and "the absence of a well-developed body of law about their use further counsels against abstention." App. 63. Tatel further contended that abstention was inappropriate under "the unique and troubling circumstances of this case." App. 63. Chief among his concerns was the fact that "the government subjected·[petitioner] to years of brutal detention and interrogation tactics that left him in a compromised physical and psychological state and that the harms he has already suffered wilJ be exacerbated - perhaps permanently - by the government's prosecution of him in a military commission." App. 65 (original emphasis). Judge Tatel concluded that such harms if demonstrated - would likely warrant an exception even to Younger abstention and outweighed the "inter-branch comit.y" concerns the majority relied upon to foreclose judicial review via haheas corpus. App. 76. ;u, Petitioner filed a motion for panel rehearing, which was denied on October 19, 2016, App. 97. This petition followed. 20 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ....,,.REASONS FOR GRANTING THE PETITION I. ivi Habeas corpus must remain available when a petitioner raises a substantial challenge to a military jurisdiction. challenged respondents' legal authority to try him by military commission because, as a matter of constitutional law and express statut9ry limitationi the offenses with which he was charged were not triable by military commission in the first place. Tills is the same question posed 150 years ago; "ha[s) tbis tribunal the legal power and authority to try and punish [him]"? Ex parte Milligan, 4 Wall. 2, 118 (1866) (original emphasis). Reviewing such claims before trial occurs has been a core function of habeas corpus for centuries and the majority below offered no compelling reason to foreclose that review now . the majority held that abstention was required even for such threshold legal challenges because the military commission system is now delineated by statute and inc1udes post-conviction appeals in the D.C. Circuit. But that is the main reason t his Court should grant certiorari .. While purporting to create "military commissions," the 2009Act has, in truth, created a novel and permanent system of rump criminal courts that operate free from the most basic requirements of Article III. Under the majority's decision below, civilians in the "interagency community'' now have unilateral authority to remove capital prosecutions from the federal courts to this system on a "case-by-case" basis. The judiciary must abstain from evaluating the basic legality of those decisions unless. and until this system yields a conviction subject to appellate review. And it must continue to abstain even where that review is unlikely to occur for another decade. 21 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE profound marginalization of the judiciary is new in our history. If such a system is to exist and to operate so free from meaningful judicial oversight, this Court should take responsibility for the drastic shift in the separation of powers. that such a regime entails. Alternatively, this Court should grant certiorari to reaffirm that when faced with a "substantial argument that the military commission lacks authority to try him," Hamdan., 548 U.S. at 589 n.20, the judiciary cannot abdicate its Article III duty to prevent capital trials from being unlawfully diverted from the courts oflaw, 1. ,3J, Petitioner's challenge to his trial by military commission could not be more fundamental nor more straightforward. The 2009 Act permits the Department of Defense to try a case in a military commission "only if the offense is committed in the context of and associated with hostilities," 10 U.S.C. 950p(c). This has been a precondition for military jurisdiction over non-service-members for at least 150 years. Johnson v. Eisentrager, 339 U.S, 163, 786 (1950); Iri re Yamashita, 327 U.S. 1, 12 (1946); Ex parte Quirin., 317 U.S. 1, 35 (1942); see also Hamdan, 548 U.S. at 597 (plurality op.) (the existence of hostilities at both the time and place of the offense is one of "four preconditions for exercise of jurisdiction by a tribunal of the type convened to try (petitioner)."); id. at 693 (Thomas, J ., dissenting) (agreeing that "the (1) time and (2) place of tlJe offense" a military commission seeks to try are "prerequisites for their use"). court, including this Court1 t.o rule on the scope of hostilities over the past fifteen years has looked to "the political departments' determination of 22 UNCLASSIFIEDl/FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE dates of hostilities' beginning." Baker v. Carr, 369 U.S. 186, 214 (1962) . In practice, that has meant the authority conferred by tbe AUMF and the President's invocation of AUMF authority to recognize foreign battlefields. See, e.g., Hamdan,, 548 U.S. at 594 (assuming "that the AUMF activated the President's war powers ... and that those powers include the authority to convene military commissions in appropriate circumstances"). Applying that same rule here. hostilities did not exist in Yemen until September 2003, well after petitioner is alleged to have committ.ed any crime and a year after he was in custody. The most fundamental precondition for military jlll'isdiction over petitioner's case, therefore, is absent. must have a meaningful avenue of pre-trial review of the Department's compliance with this precondition. The hostilities precondition serves an essential gatekeeping fonction and habeas is the traditional means by which the judiciary has kept the gate. In fact, this Court has already granted pre-trial habeas " relief on this very ground, reasoning that military tribunals may only try nonservice-members for offenses committed in "area[s) where active hostilities were under way at the time [the accused} committed their ofienses.'1 Reid, 354 U.S . at 34 (plurality op.). Otherwise, such crimes are "triable on,ly PY a jury·in a court oflaw." Id. at 29 (emphasis added). This precondition is not a precondition if no court can confirm that it has been met before a .capita] case is removed from judicial control 2. majority below concluded that habeas could be foreclosed because of the prospect of post-conviction appeal. App. 27. The past decade, however, has shown that the vitality of post-conviction teview can easily be 23 UNGLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE thwarted through delay and plea bargaining. Faced with no meaningful avenue for "· pre-trial review, eight of the ten convictions to come out of the military commission system have been the result of plea bargains. Even if this Court looks past this system's la:x procedural rules and indeterminate sentencing regime, it has no speedy trial requirements. Individuals face decades of legal limbo before judicial review is even available. In this very case, the record shows that any appeal in the D.C. Circuit is wilikely to occur.until at lea.st 2024. review also fai)s w correct for the constitutional harm that habeas guards against. Article Ill's judicial trial requirements are not simply protections for a defendant's rights, but structural safeguards for the separation of powers. CFTC v, Schor, 478 U .S. 833, 850-51 (1986). If a defendant waives appeal pursuant to a plea deal or even if a defendant is acquitted, an illegally convened miJitary commission still violates Artic1e III and "emasculates" the federal judiciary's role in adjudicating high-profile criminal cases. Ibid. Without the check of pre-trial habeas, that wrong is made permanently unreviewable in most cases, majority's acceptance of such a diminished judicial role breaks with a long and uninterrupted line of precedent refusing to extend abstention doctrines to military commissions specifically and novel assertions of military jurisdiction generally. Far from abstention, military commission jurisdiction has historically demanded close judicial supervision. In Qnirin, this Court convened a special term to reaffirm. that habeas was available to decide whether "the Constitution and laws of the United States constitutionally enacted forbid {petitioner's] trial by military 24 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFl ED//FOR PUBLIC RELEASE commission" and specifically whether "the Commission has jurisdiction to try t he charge preferred against petitioners." 317 U.S. at 25. And thjs Court reaffirmed that holding when it reviewed the military commissions in Guantanamo via pre· trial habeas. Hamdan, 548 U.S. at 588. majority's break with this precedent also betrays a more ·g eneral error in its extension of abstention doctrines here. This Court has repeatedly held that the starting point for any abstention doctrine is tradition. Huffman u, Pursue, 420 U.S. 592, 600 (1975). There .is a "longstanding public policy against federal court interference" with a State's .crjminal courts. Younger v. Harris, 401 U .S. 37, 43 (1973). Courts also have a long history of refusing to intervene when servicemembers are brought before military disciplinary proceedings. Councilman, 4·2 0 U.S . at 758. The absence of such a t radition, by contrast, is normally fatal to the invocation of abstention principles and should have been equally fatal here. Sprint Communications u. Jacobs, 134 S.Ct. 584) 588 (2013). every recognized abstention doctrine is justified by "narrowly limited" considerations of comity that "justify the delay and expense to which application of the abstention doctrine inevitably gives rise." Lake Carriers'Ass'n v. /lt!acMullan , 406 U.S. 498, 509 (1972) (internal formatting omitted). As the majority below acknowledged, none of the traditional bases for comity are here. App. 33-34. There is no danger to "our federalism," Younger, 401 U.S. at 44, or of unwar ranted judicial interference with the military's "respect for duty and a mscipline without counterpart in civilian life." Councilman, 420 U.S. at 757. 25 UNCLASSIFlED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE Petitioner was not even captured on a foreign battlefield. He was seized in a world financial capital by local authorities and taken into the custody of a civilian agency, Nothing about this case confers the presumption of military jurisdiction that the petitioner's status as a service-member created in Councilman. Id. at 759-60. majority failed to identify any policy reason to abstain beyond the need for "inter-branch comity" that governs the judicial evaluation of every activity undertaken by Congress or the Executive under color of law. App. 27-28. At most, such generic deference implicates ordinary principles of exhaustion, not preclusive abstention doctrines. See McCarthy ti. Madigan, 503 U.S. 140, 144 (1992). But even that deference is unwarranted here, where the claim i.s that the political branches have created a non-judicial forum that supplants the federal courts' constitutional jurisdiction. See Stem v. Marshall, 564 U.S. 462, 502-03 (2011). Even the most established abstention doctrines do not apply when a tribunal is proceeding 1'ultra vfres and thus lacks jurisdiction." Hamdan, 548 U.S. at 589 n.20. In such cases, t he policy interests that ordinarily compel judicial comity are absent, if not reversed. majority below acknowledged this rule, but interpreted it to require petitioner to demonstrate that the military commissions were "so procedurally deficient that they are wholly ultra uires." App. 50. This simply misunderstands the phrase "ultra vires," which ordinarily has nothing to do with procedure. Petitioner's only claim is that the Department of Defense has "exceed[ed] limits that certain statutes, duly enacted by Congress" - to wit, 10 U.S.C. 950p(c) - "have placed on [its] authority to convene military courts." Hamdan., 548 U.S . at 636 (Kennedy, J,l 26 Uf'JCLASS!FIED//FOR PUBLIC RELEASE UNCLASSlFIED//FOR PUBLIC RELEASE concurring). That is the very definition of ultra uires. And whatever else that term could mean, it is difficult to conceive of a more ultra. uires prosecution than a war crimes tribunal prosecuting a crime that the President himself determined occurred when 1'America (was] not at war," majority's decision to abstain was therefore not based on this Court's precedents on when abstention doctrines apply. It was based on the view that Councilman does not simply bar service-members from circumventing the military's disciplinary system. In the ma}ority1s view, it commands judicial deference to any quasi-judicial proceedings undertaken under military auspices writ large. Councilman such an extraordinary preclusive effect contradicts numerous decisions of this Court holding that ''the business of soldiers is t o fight and prepare to fight wars, not to try civilians for their alleged crimes." Reid, 354 U.S. at 35 (plurality op.); see also Toth u. Quarles, 350 U.S. 11, 17 (1955) . And it has already set a troubling precedent. The majority's decision prompted at least one district court to order briefing on whether it must abstain from deciding a case involving a civilian American journalist, who chaUenged a military prosecutor's demand for his records on First Amendment grounds. Boal u. United States, Case No. 16-cv-05407-GHK-GJS, Dkt. #30 (C.D.CaJ., Sept. 8, 2016). At a minimum, this Court needs to clarify that Councilman. is limited to situations where "[t]here is no question that (petitioner) is subject to military authori,t y and in proper cases to di!Sciplinary sanctions levied through the military justice system." Councilman, 420 27 UNCLASSlflED//FOR PUBLIC RELEASE UNCLASSlFIED//FOR PUBLIC RELEASE U.S. at 759-60. Otherwise, the majority's decision below portends a new era of presumptive military authority t hat the federal courts are powerless to supervise. 3. \t'rFinally, this Court's grant of certiorari is again needed to restore habeas corpus. In Boumediene v. Bush, 553 U.S. 723, 780 (2008), this Court recognized habeas corpus' traditional role in affording pre-trial judicial review over whether the offenses charged before a military tribuna1 are triable by t he military _in t he fLrst place. Yet, the majority below held that abstention was required, regardless of whether there were "suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Id. at 794. In the majority's view, it was not only compelled to "assume" that petitioner had an adequate alternative to habeas corpus based upon the mere possibility of a post-conviction appeal, but it was also precluded from "determin[ing] whether pretrial intervention is warranted by examining the on-the-ground performance of the system that Congress and the Executive have established.'' App . 27. -fflt'I'his holding alone demands review. Habeas deals in substance not appearance. Boumediene, 553 U.S. at 785. In Boumediene, this Court refused to rely upon 11a remote hypothetica1" of how the Combatant Status Review Tribunal (CSRT) process might proceed, but instead looked to actual practice, which had shown it incapable of providing timely or meaningful Judicial review. Id. at 790. by their on-the-ground performance, the military commissions perform no better than the CSRTs. They proceed largely via summary orders. And as the decision on the issue at the center of this case demonstrates, written opinions 28 .UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSlFIED//FOR PUBLIC RELEASE do little more than invoke random assortments of legal doctrines to justify the Executive's charging decision. App. 89; see also Hon. Patricia M. Wald, Forward to the Military Commission, Reporter, 12 Green Bag 2d 449, 454 (2009) (express'ing alarm at the failure of "the presiding judges {to] explain the bases of their rulings apart from mere citation"to the Act or tbe ru1es."). While such deference "to the will of the executive department which appoints, supervises and ultimately controls them;' is to be expected from a military tribunal, Toth, 350 U.S. at 17, that is precisely why habeas corpus is necessary. Hamdan, 548 U.S. at 587. (W) And because tbe military commissions have no speedy trial requirements, the majority's decision be]ow has cut a rule-swallowing loophole into the detentionrelated habeas corpus guarantee of Boumediene. If left to stand, the Executive now has the power to indefinitely detain individuals free from judicial oversight by tbe mere act of bringing them before a military commission. This is not a hypothetical concern. Petitioner was seized in 2002. Even if this Court looks past the denial of a 'meai1ingful access to a judicial forum for a period of [fourteen] years," Boumedien.e, 1 553 U.S. at 772, the Department of Defense been lumbering through the motions of prosecuting him for over eight years with no end in sight. Such extraordinary delay is inimical to habeas corpus. Id. at 794. II. \U / Abstention should not apply when a capital trial is of doubtful legality and win cause irreparable injuries that are the result of extreme government misconduct, '.Abstention, like habeas corpus, is governed by of equity, It is a "basic doctrine of equity jurisprudence," Sprint, 134 S.Ct. at 591, that presumes the 29 UNCLASSIFIED//FOR PUBLIC RELEASE PUBLIC RELEASE harms a defendant may suffer from a single prosecution are incidental to an otherwise regular trial process that the prosecuting power is pursuing with clean hands. Younger, 401 US. at 41. This Court has therefore recognized exceptions to even the most settled abstention doctrines when that equitable balance is called into doubt. The ?extraordinary circumstances? exception ensures that the federal courts remain open whenever there is ?an extraordinarily pressing need for immediate federal equitable Kulger, 421 US. at 124-25 . ?By any reasonable measure, the circumstances of this case are extraordinary. The irreparable injuries petitioner faces if put through the motions of a gratuitous death penalty trial in Guantanamo are the direct result of respondents? unclean hands. Respondents subjected petitioner to years of torture and humiliation intended to induce ?learned helplessness? and succeeded in doing so. Given that Guantanamo was itself a ?black site,? petitioner is routinely presented with triggers that cause him ?intense anxiety, dissociation, and painful flashbacks.? Class.App. 126.? continuing requirement that petitioner be chained to the ?oor at all times, meeting with his attorneys replicates the most salient routines of the RDI Program. MA full-blown capital trial before a military I commission magni?es the impact of those triggers exponentially. The ?ever- 30 PUBLIC RELEASE UNCLASS!FIED//FOR PUBLIC RELEASE changing rules and procedures" exceed petitioner's capacity to comprehend because he "has no way of differentiating this from the government's prior deliberate attempts to destabilize his personality." Class.App. 127. This was demonstrated on one occasion when a floor safe, the approximate size of the "small box," appeared in the courtroom. Seeing this item produced such a strong reaction that petitioner's attorneys had to persuade the judge to relocate it before petitioner could calm down enough to discuss the proceedings with his counsel Class.App. 326. numerous other occasions, the military judge has involuntarily excluded petitioner from proceedings because his treatment in the RD1 Program was being discussed. Cf. Hamdan, 548 U.S. at 641. This exclusion causes petitioner intense anxiety, which is exacerbated by the fact that his attorneys a:re forbidden from even discussing these hearings with him. Class.App. 128. Give.n such circumstances, Dr. Crosby predicts that Petitioner is likely to decompensate fully during his trial. Ibid. this is a capital case only compounds these harms. A capital trial imposes psychological hardships that are 1'differen.t in kind" from a non-capital proceeding, given that the ultimate objective is to determine whether petitioner should live or die. See Gregg v. Georgia, U.S. 153, 188 (1976) (plurality op.). The "random and indiscriminate" character of these proceedings and their location in a "black site" amplify these hardships with an atmosphere of menacing uncertainty that is "exponentially more harmful'' than a regular trial. Class.App. 128. 31 UNCLASSIFIED//FOR PUBLIC RELEASE t.JNCLASSIFIEO//FOR PUBLIC RELEASE nothing else, this Court has consistently recognized t.hat capital trials force defendants to make "grisly choices" that distort their trial strategy in ways that cannot be sufficiently corrected by post-conviction Teview. See Fay v. Noia, 372 U.S. 391, 439 (1963). This Court has therefore held that the military trial of capital crimes raises special concerns warranting habeas review to ensure the military is proceeding within the bounds of its authority. Grisha.m v. Hagan, 361 U.S. 278, 280 (1960); Reid, 354 U.S. at 77 (Harlan, J., concurring) ("So far as capital cases are concerned, ... the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority,"). Here, the petitioner is being forced to make those grisly choices in the full knowledge that if he ultimately prevails on this or any other jurisdictional issue via post-conviction appeal, he faces re-trial in the Southern District of New York. panel below divided over whether these facts, taken together, qualified for the extraordinary circumstances exce.ption largely because this Court has never explained how a lower court should evaluate the "extraordinari,ness" of a petitioner's circumstances. See Kugler, 421 U.S. at 125. Even though the likelihood of these irreparable injuries was conceded, even though they are t.he direct, foreseeable, and intended consequence of respondents' own misconduct, and even though the majority found them "deeply troubling,»' it denied review because no precedent from this Couti' held that such harms were "extraordinary'' in the legal sense. App . 39-49. Based on the same' facts and doctrinal uncertainty, Judge Tatel 32 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE drew the opposite conclusion, reasoning that if the harms petitioner potentially faces "do not qualify as such, it would be hard to imagine any that App . 75. Court should grant certiorari to provide the lower courts guidance on how to evaluate claims of"extraordinary circumstances." At a minimum, this Court should clarify that the extraordinary circumstances exception is met when a petitioner's irreparable injuries flow directly from respondents' misconduct and will be avoided if petitioner prevails on the merits of his claim. This is consistent with abstention's status as an equitable defense .a gainst suit. It is also consistent with the other recognized exceptions for prosecutorial bad faith, which deprive a prosecuting power the benefit of abstention because of its unclean hands. Kugler, 421 D.S. at 124; see also Nevada u. Hicks, 533 U .S. 353, 369 (2004) (even where a doctrinally established exception is "technically inapplicable," abstention should yieJd where "'the reasoning behind it is not"). Indeed, under the extraordinary circumstances presented here, it would be anomalous for respondents to escape meanblgful judicial review via the "door of equity." Precision Instrument Mfg. Co. v, Automotive Maint.. Mach. Co. , 324 U.S. 806, 814 (1945). III. majority's unduly restrictive view of its mandamus jurisdiction is at odds with other circuits and the All Writs Act. respondents argued.that the exclusive avenue for interlocutory review of a military commission's jurisdiction should be via petitions for writs of mandamus to the D.C. Circuit. The D.C. Circuit, however, has staked out a uniquely restrictive interpretation of the standard of :review in mandamus cases that has effectively foreclosed mandamus for such claims. 33 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSlFIED//FOR PUBUC RELEASE Cheney u. United States District Court, 542 U.S. 367 (2004), this Court laid out a. tripartite test for whe.n the circuits ehould issue writs of mandamus, an element of which was that the "right to issuance of the writ is 1clear and indisputable'." Id. at 381 (quotations omitted). This has resulted in division across the circuits over whether the legal merits of a mandamus petition may be addressed when it presents questions of first impression. D.C. Circuit holds that by "right to the issuance of the writ" this Court meant that the legal merits of petitioner's claim must be "clear and indisputable" at the pleading stage. Hence, petitioners must cite "cases in which a federal court has held that, in a matter involving like issues and comparable circumstances," they are entitJed to relief. Doe v. Exxon, 473 F .3d 345, 355 (D .C. Cir. 2007). Consequently, the legal merits of a petitioner's claim are reviewed only to the extent they are unambiguously determined by controlling precedent. the opposite end of the spectrum is the Second Circuit, which deems the "clear and .i ndisputable" standard met on purely legal questions whenever a lower court "based its ruling on an erroneous view of the law." SEC u. Rajaratn.am, 622 F.. 3d 1591 171 (2d Cir. 2010) (quotations omitted). Thus, "mandamus relief can be appropriate even when the district court's opinion resolved "novel legal questions that were Unsettled' at the time of the district court's decision.'' Balintulo ·v: Daimler .AO, 727 F.3d 174, 187 n:18 (2d Cir. 2013). In fact, the Second Circuit holds that cases "are sometimes more appropriate candidates for mandamus when they have raised a legal issue of first impression in this circuit." lbUJ.. (quotations omitted). 34 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE circuits have taken divergent views. The Third Circuit requires a "clear error oflaw" or a "clear abuse of discretion." In re Wilson, 451 F.3d 161, 169 (3d Cir. 2006). The Fifth Circuit relies upon a "clear abuse of discretion" standard. In, re Volkswagen, 545 F.3d 304, 310 (5th Cir. 2008). The Sixth and Tenth Circuits rely upon a five-factor balancing test in which one factor weighing in fauor of review is that the,petition "raises new and important problems, or legal issues of first impression." In re Antrobus, 519 F.3d 1123, 1130 (10th Cir. 2011); In. re Life lrivestors Ins. Co. of America, 589 F.3d 319, 323 (6th Cir. 2009). The Seventh Circuit has not analyzed the question t horoughly but appears, like the D.C. Circuit, to refrain from deciding open questions alto.gether. See Abelesz u. Erste Group &nk , 695 F.3d 655, 665 (7th Cir. 2012). The Ninth Circuit require-5 a showing of ' 1clear error," whereby the "absence of controlling precedent weighs strongly against a finding of clear error," but does not carry dispositive weight. In re Van Du.sen, 654 F .3d 838, 841 (9th Cir. 2011). And while the Eleventh Circuit has not analyzed the . question closely, it has in practice decided questions of first impression raised via mandamus . See, e.g., In re Coffman, 766 F .3d 1246 (11th Cir. 2014). (U) Because of its uniquely stringent standard, the D.C. Circuit has declined to decide .the merits of every mandamus petition to come out of the military commissions, even where a petitioner's "argument packs substantial force" and raises "a serious issue." In re Khadr, 823 F.3d 92, 99-100 (D.C. Cir. 2016). And it has held petitioners to this exacting standard even though the military commissions 35 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE system's very n ovelty ensures that every legal q uestion is one that "{n]either [the D.C. Circuit] nor any other court of appeals has Ibid. jmpossible stringency of the D.C. Circuit's standard is illustrated by the majority's ruling below. On the merits, petitioner relied upon this Court's holding in The Protector, that 14 [i}t is necessary ... to refer to some public act of the political departments ofthe government to fix the dates ... [of] the commence ment of hostilities." 12 Wall. at 700. Nevertheless, the majority reasoned that The Protector was distinguishable because it "spoke only of the Civil War ... The Protector's reliance on a 'public act' is therefore not clearly and indisputably applicable here." App . 59. Beca use no Court had yet ruled on when hostilities in Yemen specifically began, the majority concluded that it r emained an "open question" and "open questions are the antithesis of the 'clear and indisputable' right needed for mandamus relief." Ibid. (quotations omitted). most "traditional use" of mandamus bas been to keep an inferior tribunal within the "lawful exercise of its prescribed jurisdiction[.]" Roche, 319 U.S. at 26. That function cannot be served if a jurisdictional question is rendered unreviewable by the bare need to apply settled legal rules to the novel fa cts of a given case. Cf. Hope u. Pelzer, 536 U.S. 730, 739 (2002). This Court should therefore g-rant certiorari to resolve this circuit split in favor of preserving mandamus as a meaningful way of deciding such questions. if the D.C. Circuit truly lacks the legal tools to rule with certainty on whether hostilities existed at a given time and place, that fact alone 36 UNCLASSI FIED//FOR PUBLIC RELEASE PUBLIC RELEASE warrants certiorari. The existence of hostilities triggers everything from the tolling of statutes of limitations to the impairment of contracts to the abrogation of treaties to the suspension of civil liberties. See Jennifer K. Elsea Richard F. Grimmett, Cong. Research Serv., RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications (2011) (listing more than 250 authorities that come into effect during hostilities). The standard for knowing when and where America is at war is not a question that can remain ?open? for decades. 37 PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE , u / I'he petition for a writ of certiorari should he granted. Respectfully submj'tted, RICHARD KAMMEN KAMMEN & MOUDY MICHEL PAEADIS 135 N. Pennsylvania St., #1175 Indianapolis, IN 46204 NANCY HOLLANDER* F REEDMAN BOYD HOU.ANDER GOLDBERG U RIAS & WARD P .A. 20 First Plaza, Suite 700 Albuquerque, NM 87102 Counsel of Record LCDR JENNIFER POLLIO, USN, JAGC 1',0SA ELIDES IvL'\RY SPEARS KRlSTINA HON U.S. DEPAR'l'MENT OF DEFENSE M1LJTARY COMMISSION DEFENSE ORGANIZATION 1620 Defense Pentagon Washington, DC 20301 1.703.696.9490 x.115 michel.paradis@osd.mil *Ms. Hollander has not reviewed any portion of this petition or its accompanying appendices, wh.i ch are marked classified. 38 UNCLASSIFI ED//FOR PUBLIC. RELEAS E PUBLIC RELEASE CERTIFICATE OF SERVICE I hereby certify that January ?17, 2017, copies of the accompanying Petition for a .Writ of Certiorari and its two appendices were delivered to the Court Security . Of?cer pursuant to the Amended Protective Order for Habeas Cases Involving Top Secret/Sensitive Compartmented Information and Procedures for Counsel Access to Detainees at the United States Naval Station in Guantanamo Bay, Cuba, in Habeas Cases Involving Secret/Sensitive Compartmented Information, Case Nos. 08- MC-442-TFH (Dkt. Nos. 1481 and 1496) (Dkt. Nos. 79 80) (D.D.C. 9 January 2009), for service on all relevant parties. ichel P?adis US. Department of Defense Military Commissions Defense Organization 1620 Defense Pentagon Washington, DC 20301 1.703.696.9490 x115 michel.paradis@osd.mil Counsel for Petitioner PUBLIC RELEASE