                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
ABD AL-RAHIM HUSSAIN           )
MOHAMMED AL-NASHIRI,           )
                               )
          Petitioner,          )
                               )   Civil Action No. 08-1207 (RWR)
          v.                   )
                               )
BARACK OBAMA, et al.,          )
                               )
          Respondents.         )
_____________________________ )

                  MEMORANDUM OPINION AND ORDER

     Guantánamo detainee Abd Al Rahim Hussayn Muhammad Al Nashiri

submitted an amended petition1 seeking a writ of habeas corpus,

arguing that the respondents’ attempts to try him by military

commission would exceed the limits imposed by Congress and the

Constitution on the military’s authority to act in lieu of courts

of law because none of the crimes alleged against Al Nashiri

occurred in the context of a recognized war.   Al Nashiri moves

for a preliminary injunction preventing the respondents from

trying him by military commission before the merits of his habeas

petition are decided.   The respondents oppose Al Nashiri’s

motion, and move to hold his habeas petition in abeyance during

the duration of his military commission trial.   Because

traditional principles of comity and judicial economy support

abstaining from exercising equitable jurisdiction over

     1
       Al-Nashiri’s motion [230] for leave to file an amended
petition seeking a writ of habeas corpus will be granted.
                                 - 2 -

Al Nashiri’s habeas petition during the pendency of his military

commission trial, the respondents’ motion to hold in abeyance

will be granted, and Al Nashiri’s motion for a preliminary

injunction will be denied.

                             BACKGROUND

     Al Nashiri is a Saudi national who was seized in

October 2002 by local authorities in the United Arab Emirates.

Petr.’s Supp. Pet. for Habeas (“Petr.’s Supp. Pet.”) ¶¶ 5, 13.

He was eventually taken into the custody of the Central

Intelligence Agency (“CIA”) in 2002.      Id. ¶ 13.   In May 2003,

while Al Nashiri was in CIA custody, the United States named him

as an unindicted co-conspirator in a criminal indictment in the

Southern District of New York.    That indictment alleges that he

was part of a terrorist group in Yemen that conspired to bomb

marine vessels, including the U.S.S. Cole and

U.S.S. The Sullivans.   In September 2006, Al Nashiri was publicly

transferred to the U.S. Naval Station at Guantanamo Bay.       Id.

In December 2008, a Department of Defense civil servant referred

to as the “Convening Authority,”2 drafted eight charges against


     2
      Under the Military Commissions Act, 10 U.S.C. §§ 948a et
seq., the Secretary of Defense is authorized to “establish
military commissions” to conduct proceedings regarding charged
“offenses triable by military commission . . . .” 10 U.S.C.
§§ 948b(b), 948h. The Secretary has delegated the responsibility
to establish commissions to a “Convening Authority,” who is an
employee of the Department of Defense. See Petr.’s Supp. Pet.
¶ 9. The Convening Authority creates commissions by issuing
orders alleging charges and designating military officers who
                                 - 3 -

Al Nashiri for trial by military commission in February 2009

under the version of the Military Commissions Act in force at the

time.   In January 2009, however, President Obama issued an

executive order to review the military commission system in

Guantanamo, and the charges filed in December 2008 were withdrawn

without prejudice in January 2009.       Id. ¶ 14.

     On April 20, 2011, Col. Edward Regan sent another charging

document to the Convening Authority seeking to bring 11 charges

against Al Nashiri for military commission trial under the

Military Commissions Act of 2009, 10 U.S.C. §§ 948a et seq.,

based on conduct that occurred between 1996 and 2002.    The

Convening Authority can issue charges for actions that are

“committed in the context of and associated with hostilities.”

Hostilities include any conflict subject to the laws of war.

10 U.S.C. §§ 950p(c), 948a(9).    The convening Authority can issue

charges only against people who are not U.S. Citizens.    10 U.S.C.

§ 948c (“Any alien unprivileged enemy belligerent is subject to

trial by military commission”).

     On July 15, 2011, Al Nashiri filed a formal request to the

Convening Authority to not convene a military commission trial

against Al Nashiri for the offenses alleged in the charging

document arguing that they neither occurred in the context of nor


serve as the jury to recommend a verdict on the charges and an
upper range of punishment, which is then reviewed by the
Convening Authority. 10 U.S.C. § 948i, 950b.
                                 - 4 -

were related to the hostilities mentioned in 10 U.S.C. § 950p(c).

However, on September 15, 2011, the Convening Authority issued

charges based on nine of the 11 allegations contained in the

charging document.    Petr.’s Supp. Pet. ¶ 23.   Those nine charges

are the current charges pending against Al Nashiri and carry a

maximum penalty of death.    They allege he played a role in three

attacks allegedly perpetrated by al Qaeda: the 2000 attempted

bombing of the United States Navy destroyer USS The Sullivans;

the October 2000 bombing of the United States Navy destroyer USS

Cole that killed seventeen American sailors; and the 2002 bombing

of a French oil tanker that killed one crew member.    See Respts.’

Cross-Mot. to Hold in Abeyance (“Respts.’ Mot.”), Exhibit A

(“Charge Sheet”).    The charges also allege that Al Nashiri

“assisted in [an] Al Qaeda plot, simultaneous attacks on United

States embassies in Kenya and Tanzania in East Africa[.]”      Charge

Sheet at 7, Charge V ¶ 5.    On August 30, 2012, Al Nashiri moved

before the military commission’s chief trial judge to have the

charges against him dismissed because the events they were based

upon were not hostilities countenanced by 10 U.S.C. § 950p(c).

Petr.’s Supp. Pet. ¶ 24.    The chief trial judge denied that

motion in January 2013.    Id.

     Al Nashiri now moves to amend his petition for habeas corpus

to add claims seeking judicial review of the lawfulness of the

military commission trial against him, and moves for an
                               - 5 -

injunction halting the military commission trial.   Al Nashiri

argues that none of the crimes that are alleged against him took

place in the context of a recognized war, and that without

connection to a recognized armed conflict, the military cannot

“remove” his habeas case from the federal courts and adjudicate

it within a military commission.   Petr.’s Supp. Pet. ¶ 1.   The

respondents oppose those motions, and move to hold in abeyance

Al Nashiri’s habeas petition for the duration of the military

commission trial.

                            DISCUSSION

     The Supreme Court has held that since habeas is an equitable

remedy, prudential concerns such as comity and the orderly

administration of justice may “‘require a federal court to forgo

the exercise of its habeas corpus power.’”   Munaf v. Geren, 553

U.S. 674, 693 (2008) (quoting Francis v. Henderson, 425 U.S. 536,

539 (1976)).   “‘Federal courts normally will not entertain habeas

petitions by military prisoners unless all available military

remedies have been exhausted.’”    Khadr v. Obama, 724 F. Supp. 2d

61, 64-65 (D.D.C. 2010) (quoting Schlesinger v. Councilman, 420

U.S. 738, 758 (1975)); see also Al Odah v. Bush, 593 F. Supp. 2d

53, 57 (D.D.C. 2009) (stating that “[c]ourts ordinarily abstain

from considering habeas petitions or requests for other equitable

relief prior to the conclusion of a defendant’s criminal

proceedings”).   “This is so because ‘implicit in the
                                 - 6 -

Congressional scheme’ creating the military court system is the

view that the ‘system generally is adequate to and responsibly

will perform its assigned task.’” Khadr, 724 F. Supp. 2d at 65

(quoting Councilman, 420 U.S. at 758).      “‘Abstention, then,

ensures that federal courts respect Congress’s decision to

create[ ] an integrated system of military courts and review

procedures.’”    Id. (quoting Councilman, 420 U.S. at 758).

     Abstention under Councilman “is appropriate only to the

extent that this Court’s consideration of [Al Nashiri’s habeas

petition] would interfere with the military commission

proceeding.”    Id. at 66.   “Such interference is possible where

the claims raised in a habeas petition could overlap with the

military commission’s inquiries.”     Id. (citing Al Odah, 593 F.

Supp. 2d at 59).    Here, the military commission is expressly

charged with determining whether Al Nashiri’s charged acts fall

within the coverage of the statute.      See 10 U.S.C. § 948d.    The

military commission must determine whether Al Nashiri was an

“alien unprivileged enemy belligerent.”      10 U.S.C. § 948c.    An

“unprivileged enemy belligerent” is defined under the Military

Commissions Act as an individual who is not a citizen of the

United States, who is not a prisoner of war under the Third

Geneva Convention, and who: “(A) has engaged in hostilities

against the United States or its coalition partners; (B) has

purposefully and materially supported hostilities against the
                               - 7 -

United States or its coalition partners; or (C) was a part of al

Qaeda at the time of the alleged offense.”    10 U.S.C.

§ 948a(1),(6),(7).   Al Nashiri’s primary challenge to his

detention in his supplemental habeas petition is that his charged

conduct is not covered by the statute.    See Petr.’s Supp. Pet.

¶¶ 1, 27 (stating that “[n]one of the factual allegations against

Petitioner relate to events that occurred ‘in the context of and

were associated with hostilities[.]’”).    That determination

necessarily overlaps with a prime determination the military

commission must make.   Proceeding with the habeas petition, then,

would interfere with the military commission trial.

     Al Nashiri advances several arguments against the

respondents’ motion.3   He asserts that abstention is improper

here because the military commission trial is not a substitute

that provides Al Nashiri the same relief - - namely, release from

captivity that the habeas petition provides.    Petr.’s Opp’n to

Respts.’ Mot. (“Petr.’s Opp’n”) at 3.    However, “the fact that



     3
       Because the respondents’ motion to stay will be granted,
Al Nashiri’s motion for a preliminary injunction will be denied
as moot. In any event, Al Nashiri has failed to show irreparable
injury. In his motion for a preliminary injunction, Al Nashiri
argues that he would be irreparably harmed by allowing the
military commission trial to proceed while his habeas petition is
pending. Petr.’s Mot. for Prelim. Injunc. at 19-25. However,
“[t]he inconvenience of any criminal prosecution, including those
associated with the military commissions, is insufficient,
standing alone, to warrant federal court intervention.” Al Odah,
593 F. Supp. 2d at 58 (citing Younger v. Harris, 401 U.S. 37, 46
(1971)).
                               - 8 -

‘military commissions . . . are convened to consider whether [an

individual has] violated the laws of war and not whether [he]

should be released from custody’ does not alter the abstention

analysis.”   Khadr, 724 F. Supp. 2d at 68 n.10 (quoting Al Odah,

593 F. Supp. 2d at 59).   Al Nashiri also argues that the military

commission trial will not provide him with meaningful relief for

any potential complaints about his medical care or treatment in

confinement, nor would it provide timely judicial review.

Petr.’s Opp’n at 11-14.   Al Nashiri further argues that the

military commission trial will not meaningfully remedy any

potential interference with Al Nashiri’s attorney-client

relationship, id. at 15-18, and would preclude him from

developing a fulsome factual record, id. at 19-20.   However,

Al Nashiri provides no authority showing that courts’ traditional

deference to military commission trials is based on the

proposition that those trials offer identical protections and

procedures that are present in habeas proceedings or civilian

criminal trials.   For example, the military court system that the

Court in Councilman deemed sufficient “to vindicate servicemen's

constitutional rights” itself did not incorporate identical

protections to those available at civilian criminal trials.

Councilman, 420 U.S. at 757-758.

     Here, Al Nashiri’s military commission trial will occur in a

system established by Congress that constructs safeguards aimed
                                - 9 -

at protecting Al Nashiri’s interests.    For example, Al Nashiri

will be guaranteed the assistance of an appointed military

counsel as well as the right to retain civilian counsel.    See 10

U.S.C. §§ 948k, 949c.    He will have the right to challenge for

cause any and all members of the military commission itself and

the appointed judge.    10 U.S.C. § 949f.   He will be entitled to

invoke the presumption of innocence, to engage in discovery, to

obtain and present exculpatory evidence, and to call witnesses on

his behalf.   10 U.S.C. §§ 949j, 949l(c)(1); see also Khadr, 724

F. Supp. 2d at 66 (“the Military Commissions Act of 2009 gives a

defendant [t]he opportunity to obtain witnesses and evidence

. . . comparable to the opportunity available to a criminal

defendant in a court of the United States under Article III of

the Constitution”) (internal quotation omitted).    Further, the

military commission system guarantees an appeal of right to the

U.S. Court of Appeals for the District of Columbia Circuit, a

court “consisting of civilian judges ‘completely removed from all

military influence or persuasion,’” cf. Councilman, 420 U.S. at

758, with respect to “matters of law, including the sufficiency

of the evidence to support the verdict[,]” and to determine the

validity of a final judgment rendered by a military commission

and approved by the Convening Authority.    10 U.S.C. § 950g.   The

military commission trial contains sufficient procedures and

protection to warrant abstention by this court.
                              - 10 -

                            CONCLUSION

     Because traditional principles of comity and judicial

economy support abstaining from exercising equitable jurisdiction

over Al Nashiri’s habeas petition while his military commission

trial is pending, it is hereby

     ORDERED that the respondents’ motion [237] to hold

Al Nashiri’s habeas petition in abeyance be, and hereby is,

GRANTED.   The clerk is DIRECTED to STAY and ADMINISTRATIVELY

CLOSE this case.   It is further

     ORDERED that the parties be, and hereby are, DIRECTED to

file a joint status report and proposed order within ten days

after the petitioner’s military commission trial is concluded.

It is further

     ORDERED that the petitioner’s motion [228] for a preliminary

injunction be, and hereby is, DENIED.    It is further

     ORDERED that the petitioner’s motion [230] for leave to

amend his petition for habeas be, and hereby is, GRANTED.    It is

further

     ORDERED that the motion [232] for leave to file an amicus

brief and the motion [244] for proposed amici to participate in

oral argument be, and hereby are, DENIED without prejudice.

     SIGNED this 29th day of December, 2014.


                                        /s/
                                    RICHARD W. ROBERTS
                                    Chief Judge
