                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
AMMAR AL-BALUCHI                    )
a/k/a Ali Abdul Aziz Ali,           )
                                    )
              Petitioner,           )
                                    )
       v.                           )                 Civil Action. No. 08-2083 (PLF)
                                    )
MARK T. ESPER,                      )
Secretary of Defense, et al.,       )
                                    )
              Respondents.          )
____________________________________)


                                             OPINION

               Pending before the Court are the motion of petitioner Ammar al-Baluchi and a

cross motion from respondents Mark T. Esper (as Secretary of Defense); the Commander of

Joint Task Force Guantanamo; and the Commander of Prison Camp Guantanamo

(“respondents”). 1 Mr. al-Baluchi is a detainee at Guantanamo Bay Naval Base whom the United

States is prosecuting before a military commission for his alleged role in the terrorist attacks of

September 11, 2001. He has filed a classified motion for permanent injunction or mandamus to

enjoin the capital military commission proceedings [Dkt. No. 200]. Respondents have filed an

unclassified cross motion to hold in abeyance the habeas corpus petition, filed in this court over a

decade ago, pending completion of the military commission proceedings [Dkt. No. 204]. Upon

careful consideration of the briefs, the relevant authorities, the arguments presented at the




       1
              Mr. al-Baluchi filed suit against the Secretary of Defense in his official capacity.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current holder of that office,
Mark T. Esper, is substituted for his predecessor as party to this litigation.
motions hearing held on February 27, 2019, and the record in this case, the Court will grant

respondents’ cross-motion and deny Mr. al-Baluchi’s motion. 2 The habeas corpus proceedings

in this Court will be stayed pending completion of the military commissions trial and appeal.

               Also pending before the Court are six procedural motions, which need not be

resolved now since the Court is staying the habeas corpus proceedings until completion of the

military commission proceedings. The following motions, therefore, will be stayed pending

further order of this Court: respondents’ sealed Motion to Deem Protected Information

Highlighted in the Accompanying Proposed Public Factual Return for ISN 10018 [Dkt. No.

125]; Mr. al-Baluchi’s Classified Motion for Discovery [Dkt. No. 152]; Mr. al-Baluchi’s

Classified Motion Regarding Entry of Redacted Opinions and Orders on Docket [Dkt. No. 155];

Mr. al-Baluchi’s Classified Motion to Modify Protective Order [Dkt. No. 156]; Mr. al-Baluchi’s




       2
                The following documents and accompanying exhibits are especially relevant to
consideration of the motions: Mr. al-Baluchi’s December 2, 2008 Petition for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (“Habeas Pet.”) [Dkt. No. 1]; Respondents’ Status Report
of December 22, 2008, (“Dec. 22, 2008 Status Rep.”) [Dkt. No. 7]; Exhibit Narrative to
Respondents’ Public Filing of Factual Return, (“Factual Return”) [Dkt. No. 96-1]; January 31,
2018 Joint Status Report, (“Jan. 31, 2008 Joint Status Rep.”) [Dkt. No. 197]; Mr. al-Baluchi’s
Classified Updated Motion for Permanent Injunction or Mandamus with respect to Unlawful
Trial by Capital Military Commission (“Al-Baluchi Mot.”) [Dkt. No. 200]; Respondents’
Unclassified Updated Memorandum in Opposition to Petitioner’s Motion for Permanent
Injunction or Mandamus with Respect to His Unlawful Capital Military Commission and Cross
Motion to Hold Petition in Abeyance Pending Completion of Military Commission Proceedings,
(“Respondents’ Cross Mot.”) [Dkt. No. 203 (memo in opposition) and Dkt. No. 204 (cross
motion)]; Exhibit A to Respondents’ Cross Mot., (“2012 Charge Sheet”) [Dkt. No. 203-1]; Mr.
al-Baluchi’s Classified Reply in Support of Updated Motion for Permanent Injunction or
Mandamus with Respect to Unlawful Trial by Capital Military Commission and Response to
Motion to Hold Case in Abeyance (“Al-Baluchi Reply”) [Dkt. No. 207]; Respondents’ Reply in
Support of Cross-Motion to Hold in Abeyance (“Respondents’ Reply”) [Dkt. No. 208]; February
27, 2019 Motions Hearing Transcript, (“Mot. Hr’g. Tr.”) [Dkt. No. 216]; and Mr. al-Baluchi’s
Notice of Supplemental Authority [Dkt. No. 217].


                                                2
Classified Motion to Preserve Evidence [Dkt. No. 157]; and Mr. al-Baluchi’s Classified ex parte

motion [Dkt. No. 160].


                                      I.      BACKGROUND

                                    A. Allegations and Detention

               Ammar al-Baluchi is a Pakistani national detained at the United States Naval Base

in Guantanamo Bay, Cuba (“Guantanamo”). 3 The United States is prosecuting Mr. al-Baluchi

before a military commission for his alleged role in financing the terrorist attacks of September

11, 2001.

               In the late 1990s, Mr. al-Baluchi worked as a computer technician and systems

manager in Dubai. The government alleges that, in January of 2000, Mr. al-Baluchi purchased

flight training videos and simulation software in order to provide information about commercial

airline operations to Marwan Al-Shehhi, who flew American Airlines Flight 175 into the South

Tower of the World Trade Center on September 11. Factual Return at 11-17. In April 2000, the

government asserts, Mr. al-Baluchi began sending bank-to-bank transfers of funds from Dubai to

the 9/11 hijackers in the United States. In all, the government alleges that Mr. al-Baluchi made

six transfers totaling more than $100,000 to the 9/11 hijackers and pilots in the months during

which they were planning the attacks. See id. at 18-24. Mr. al-Baluchi fled Dubai for Pakistan

the day before the 9/11 attacks. Id. at 25. The government alleges that he continued to manage




       3
               “Ammar al-Baluchi” is petitioner’s kunya. The government asserts that a kunya
is an Arabic honorific that usually connotes parenthood but that is also sometimes used as an
alias by extremists. Factual Return at 7-8. The name listed on petitioner’s immigration and
financial documents is Ali Abdul Aziz Ali. Id.


                                                 3
Al-Qaeda funds for investment and safekeeping, executing in-person exchanges of currency in

excess of $500,000. See id. at 25-29.

               The United States apprehended Mr. al-Baluchi during or after March 2003. See

Factual Return at 29. Mr. al-Baluchi says that the United States subjected him to a “serious

pattern of very egregious torture” while detaining him overseas for interrogation. Mot. Hr’g Tr.

at 12. See also Classified Statement of Facts (setting out Mr. al-Baluchi’s full account of his

treatment). The government does not contest this characterization for purposes of the instant

motions. See Mot. Hr’g Tr. at 39. Mr. al-Baluchi argues that this mistreatment imperils the legal

status of his military commission. Assessing that argument does not require the Court to

elaborate on any classified aspects of Mr. al-Baluchi’s filings. Rather, in resolving the pending

motions, the Court may assume without deciding that the United States tortured Mr. al-Baluchi

before he was charged and prosecuted before the present military commission. See id. at 11.


                                    B. The Military Commission

               In approximately September 2006, Mr. al-Baluchi was taken to the United States

Naval Base in Guantanamo Bay, where he remains to this day. See Habeas Petition at 4. The

government asserts that Mr. al-Baluchi is subject to detention pursuant to the 2001 Authorization

for the Use of Military Force, which authorizes the President to use military force against those

who “planned, authorized, committed, or aided the terrorist attacks that occurred on September

11, 2001.” Pub. L. 107-40. The United States is prosecuting Mr. al-Baluchi as an enemy

combatant before a capital military commission at Guantanamo Bay that has been empaneled

pursuant to the Military Commissions Act of 2009, Pub. L. 111-84. A Combatant Status Review

Tribunal (“CSRT”) convened by the Department of Defense has designated Mr. al-Baluchi an

enemy combatant, a determination that Mr. al-Baluchi unsuccessfully challenged with a petition

                                                 4
to the United States Court of Appeals for the D.C. Circuit. See Resp. Dec. 22, 2008 Status Rep.

at 1. 4

               Mr. al-Baluchi was originally charged before a military commission on May 9,

2008. See Dec. 22, 2008 Status Rep. at 1. In 2009, however, the government decided to bring

Mr. al-Baluchi and four other 9/11 co-conspirators to trial in federal court in New York. When

that trial did not proceed, the Office of Military Commissions swore new “charges and

specifications” against Mr. al-Baluchi on May 31, 2011 and January 25, 2012. The charging

document accused Mr. al-Baluchi of nine crimes triable by military commission pursuant to 10

U.S.C. § 950t. See 2012 Charge Sheet at 13-15, 17-36, 117-19. 5 On April 4, 2012, Convening

Authority Bruce MacDonald ordered that Mr. al-Baluchi be tried on these charges by capital

military commission. In the intervening years, the government and Mr. al-Baluchi have been

engaged in extensive pre-trial litigation before the capital military commission. 6



          4
               The court of appeals denied Mr. al-Baluchi’s petition in 2009, concluding that it
lacked subject matter jurisdiction to entertain a challenge to the enemy combatant designation.
See Al-Baluchi v. Gates, 2009 U.S. App. LEXIS 9626, *1 (D.C. Cir. 2009) (citing Bismullah v.
Gates, 551 F.3d 1068 (D.C. Cir. 2009)). The court of appeals in Bismullah found that direct
review of the CSRTs could not be severed from a jurisdiction-stripping provision held
unconstitutional by Boumediene v. Bush, 553 U.S. 723 (2008). The court reasoned that
Congress would not have conferred jurisdiction to review CSRTs if it knew that Boumediene
would restore broader habeas jurisdiction.
          5
                Mr. al-Baluchi was charged with conspiracy under 10 USC § 950t(29), attacking
civilians under 10 USC § 950t(2), attacking civilian objects under 10 USC § 950t(3),
intentionally causing serious bodily injury under 10 USC § 950t(13), murder in violation of the
law of war under 10 USC § 950t(15), destruction of property in violation of the law of war under
10 USC § 950t(16), hijacking or hazarding a vessel or aircraft under 10 USC § 950t(23),
terrorism under 10 USC § 950t(24), and providing material support for terrorism under 10 USC
§ 950t(25). As of the date of the charges, the crimes triable by military commission were
codified at 10 U.S.C. § 950v. See Resp. Dec. 22, 2008 Status Rep. at 2.
          6
              The commission’s docket exceeds seven thousand entries, including more than
five hundred motions filed by Mr. al-Baluchi or his co-defendants. See Office of Military
Commissions, 9/11: Khalid Shaikh Mohammad et al., available at
                                                 5
                    C. The Habeas Corpus Proceedings and the Instant Motions

               On December 2, 2008, Mr. al-Baluchi filed with this Court his petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Habeas Pet. at 1. The petition alleges that

Mr. al-Baluchi was held by the CIA before arriving at Guantanamo Bay, that he is innocent of

the charged offenses, and that his ongoing detention violates the United States Constitution and

other U.S. laws. Id. at 1-2. The petition seeks a determination from this Court that his detention

is unlawful. Id. The parties have spent years litigating procedural matters associated with the

habeas petition, including discovery, access to classified information, and preservation of

evidence.

               The motions now before the Court require a decision on whether one of Mr. al-

Baluchi’s two ongoing proceedings should take precedence over the other – and, if so, whether it

is the military commission or the habeas corpus proceeding in this Court that must yield. The

instant motions supersede earlier filings from 2012 and 2014. 7 Mr. al-Baluchi submitted his

revised classified motion [Dkt. No. 200], which seeks to enjoin his military commission from

proceeding, in March of 2018. Mr. al-Baluchi argues that his capital military commission is

ultra vires because executing him would be cruel and unusual punishment and would subject him




https://www.mc.mil/CASES.aspx. The parties have processed more than 400,000 pages of
discovery and have convened more than one hundred days of hearings. Cross. Mot. at 9.
       7
                Respondents filed their first motion to hold the habeas proceedings in abeyance
[Dkt. No. 130] in September 2012. After receiving four extensions of the response deadline, Mr.
al-Baluchi filed his first classified motion to enjoin the military commission proceedings [Dkt.
No. 154] in August 2014. The Court directed the parties to revise their motions to account for
the decision of the U.S. Court of Appeals in In re Al-Nashiri, 835 F.3d 111 (D.C. Cir. 2016),
cert. denied sub nom Al-Nashiri v. Trump, 138 S. Ct. 354 (2017) (affirming district court’s stay
of habeas proceedings on grounds of jurisdictional abstention). See March 5, 2018 Scheduling
Order. The revised motions are now before the Court.
                                                 6
to double jeopardy, in light of the torture he claims that he has already endured. He believes that

this Court has jurisdiction to resolve the substance of his habeas corpus petition, and that it is not

equitably barred from exercising it. Respondents submitted their revised motion [Dkt. No. 204],

styled as a cross motion, to hold the habeas proceedings in abeyance pending completion of the

military commission, in April of 2018. Respondents argue that this Court lacks subject matter

jurisdiction to consider Mr. al-Baluchi’s motion to enjoin the military commission, and that, in

any event, the Court should abstain on equitable grounds from exercising jurisdiction over the

injunction motion and the underlying habeas corpus petition. Briefing on the motions continued

in the spring and summer of 2018 and the Court heard oral arguments on February 27, 2019.


                                    II.     LEGAL STANDARDS

                                      A. Jurisdictional Abstention

                               1. Principles of Councilman Abstention

               While courts have a strict duty to exercise the jurisdiction conferred upon them by

Congress, there are exceptions – for example where abstention is warranted. See Quackenbush

v. Allstate Insurance Co., 517 U.S. 706, 716 (1996). Where a petitioner seeks equitable relief,

“[t]here remains the question of equitable jurisdiction, a question concerned, not with whether

the claim falls within the limited jurisdiction conferred on the federal courts, but with whether

consistently with the principles governing equitable relief the court may exercise its remedial

powers.” Schlesinger v. Councilman, 420 U.S. 738, 753-54 (1975). In this spirit, the Supreme

Court has “preclude[d] equitable intervention into pending state criminal proceedings” under

most circumstances. Id. at 756 (citing Younger v. Harris, 401 U.S. 37, 46 (1927) (internal

quotations omitted)).




                                                  7
                In Schlesinger v. Councilman, the Supreme Court extended abstention from state

criminal proceedings to military courts martial. It held that “the balance of factors governing

exercise of equitable jurisdiction by federal courts normally weighs against intervention, by

injunction or otherwise, in pending court-martial proceedings.” See Schlesinger v. Councilman,

420 U.S. at 740; see also id. at 757-60. Two factors inform this balance: the importance of the

coordinate system’s interest in avoiding premature review from federal courts, id. at 758, and the

adequacy of the coordinate system’s procedures for protecting “[defendants’] legitimate

interests,” id. at 760.

                In In re Al-Nashiri, 835 F.3d 110 (D.C. Cir. 2016) (“In re Al-Nashiri”), the D.C.

Circuit confirmed that Councilman abstention also applies to military commissions. The court

distinguished Mr. Al-Nashiri’s petition from the petition in Hamdan v. Rumsfeld, 548 U.S. 557,

587 (2006), in which the Supreme Court declined to extend Councilman abstention to a

Guantanamo detainee. In re Al-Nashiri, 835 F.3d at 120. Salim Hamdan, however, faced a

commission that lacked the safeguards later conferred by the Military Commissions Act of 2006,

Pub. L. 109-366, as amended (“MCA”). Noting that “much has changed since Hamdan,” the

court of appeals extolled the MCA’s substantially enhanced procedural protections, including the

right to appeal. Id. at 120. The court identified “two comity considerations” that drive the

abstention analysis: “to abstain we must be assured of both the adequacy of the alternative

system in protecting the rights of defendants and the importance of the interests served by

allowing that system to proceed uninterrupted by federal courts.” Id. at 121 (emphasis in

original).

                With respect to the adequacy of the protections provided by the military

commissions at Guantanamo Bay, the court in In re Al-Nashiri was “convinced that the MCA’s



                                                 8
review structure is adequate because it is virtually identical to the review system for courts

martial approved by the [Supreme Court] in Councilman.” In re Al-Nashiri, 835 F.3d at 122.

Detailing the protections afforded by the MCA, id. at 122, the court of appeals held that a court

need not “determine whether pretrial intervention is warranted by examining the on-the-ground

performance of the system that Congress and the Executive have established.” Id. at 123.

Rather, the MCA scheme itself is presumptively adequate, absent claims that the MCA is

unlawful or that petitioner would be unable to fully defend himself before one of its military

commissions. See id.

               As for the importance of the interest in allowing the coordinate system to proceed

without interference, the court in In re Al-Nashiri held that “Congress and the President

implicitly instructed that judicial review should not take place before that system has completed

its work.” In re Al-Nashiri, 835 F.3d at 124. This instruction advances “the need for federal

courts to avoid exercising their equitable powers in a manner that would unduly impinge on the

prerogatives of the political branches in the sensitive realm of national security,” where “the

expertise of the political branches is at its apogee.” Id. at 124-25 (citing Hamdi v. Rumsfeld, 542

U.S. 507, 531 (2004)). Congress crafted a separate statutory scheme for trying certain

belligerents and allowed for post-conviction review by Article III courts. “[B]y providing for

Article III involvement at a particular point, Congress implicitly signals that Article III courts

should get involved no sooner.” In re Al-Nashiri, 835 F.3d. at 125. “Moreover, the eventual

involvement of an Article III appellate court lessens the need for immediate intervention because

an Article III court can remedy any error on appeal.” Id. at 127.

               In sum, the adequacy of procedural protections and the importance of avoiding

premature review produce a rule of general application concerning abstention from review of



                                                  9
military commissions. Because the court of appeals made categorical findings about the

importance and adequacy considerations with respect to all military commissions under the

MCA, courts in this circuit are to abstain from resolving pre-conviction habeas petitions arising

from MCA commissions unless the particular facts of a petitioner’s case suggest that abstention

is unwarranted. See In re Al-Nashiri, 835 F.3d at 122-28. 8


                              2. Exceptions to Councilman Abstention

               After determining that Councilman abstention is appropriate for a particular kind

of coordinate proceeding, courts must “examine whether [the] decision to abstain [is]

appropriate, in light of any features unique to [petitioner’s] case.” See In re Al-Nashiri, 835 F.3d

at 128. Courts have recognized several exceptions to Councilman, but they are “narrow and

limited.” Id. at 128. Federal courts may intervene in ongoing criminal proceedings if a plaintiff

shows “extraordinary circumstances,” which are those that present a threat of “great and

immediate injury” and would render the coordinate tribunal “incapable of fairly and fully




       8
                 This conclusion is unaffected by the court of appeals’ recent decision on a further
mandamus petition in Mr. Al-Nashiri’s case, In re Al-Nashiri, 2019 WL 1601994 (D.C. Cir.
April 16, 2019). In that petition, Mr. Al-Nashiri alleged that Vance Spath, the military judge
overseeing Mr. Al-Nashiri’s commission, had shown impermissible partiality by applying for
(and negotiating for) a job at the Department of Justice while simultaneously presiding over Mr.
Al-Nashiri’s case. Id. at *1-3, *6. The court of appeals concluded that Judge Spath should have
disqualified himself and that his specific commission was unfair. It therefore granted Mr. Al-
Nashiri’s petition for a writ of mandamus, vacating every ruling that Judge Spath made after
November 19, 2015 and vacating any orders from the Court of Military Commissions Review
concerning Judge Spath’s vacated orders. Id. at *13. The earlier holding requiring abstention
remains intact, however, because the petition then before the court did not rely on arguments
about Mr. Al-Nashiri’s specific commission’s unfairness. See In re Al-Nashiri, 835 F.3d at 116,
128-29. And the court of appeals’ conclusion that abstention was generally appropriate for MCA
commissions did not rely on any of Judge Spath’s since-vacated rulings. Nor does the recent
decision vacating Judge Spath’s rulings make any mention of abstention. See generally In re Al-
Nashiri, 2019 WL 1601994.


                                                10
adjudicating the federal issues before it.” Id. at 128 (quoting Kugler v. Helfant, 421 U.S. 117,

123-24 (1975)). Significantly, the “cost, anxiety, and inconvenience of having to defend against

a single criminal prosecution” do not alone constitute “extraordinary circumstances.” Id. To

qualify, petitioner must allege “great, immediate, and irreparable” injuries that go directly to the

capacity or competence of the commission itself. See id. at 128-29. If the petitioner claims only

that burden which is “attendant to resolution of his case in the military court system,” then the

obligation to abstain persists. Id. at 128; see id. at 128-29.

                In In re Al-Nashiri, the D.C. Circuit described an exception to Councilman

abstention for a particular kind of extraordinary circumstance: claims arising from “express

statutory or constitutional language that gives [petitioner] a right not to be tried” at all. In re Al-

Nashiri, 835 F.3d at 131. Such rights permit pre-conviction intervention by a habeas court

because “the trial itself creates an injury that cannot be remedied on appeal.” Id. See also Khadr

v. United States, 529 F.3d 1112, 1117-18 (D.C. Cir. 2008) (holding that denial of a preliminary

jurisdictional ruling by a military commission is not immediately appealable). Courts have

recognized only four types of proceedings that rise to this level: (i) trials that would violate the

double jeopardy prohibition, Abney v. United States, 431 U.S. 651, 659 (1977); (ii) trials for

conduct protected by the speech or debate clause, Heltoski v. Meanor, 442 U.S. 500, 506-07

(1979); (iii) trials without a grand jury indictment in violation of the Fifth Amendment, Midland

Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989); and (iv) the “status exception,” where

circumstances raise “substantial arguments” as to whether certain individuals may be tried by the

military at all. In re Al-Nashiri, 835 F.3d at 133. “[T]hat is, where there is a substantial question




                                                  11
whether a military tribunal has personal jurisdiction.” Id. See also Schlesinger v. Councilman,

420 U.S. at 758-59. 9


                                          III.    ANALYSIS

               The question of whether the Court should abstain from exercising its jurisdiction

is the foremost issue implicated by the instant motions; it is a threshold question whose

resolution decides most of the disputes that are now before the Court. 10 The Court agrees with

respondents that it should abstain from exercising its jurisdiction to resolve the merits of Mr. al-

Baluchi’s habeas corpus petition.


                              A. Jurisdictional Abstention is Warranted

                    1. Councilman Abstention Applies to Military Commissions

               The court of appeals in In re Al-Nashiri assessed the applicability of Councilman

abstention to a military commission that, like this Mr. al-Baluchi’s commission, was constituted

under authority of the MCA. The court in In re Al-Nashiri confirmed that military commissions

conducted pursuant to the MCA are categorically adequate to protect a defendant’s rights, and

that important national security interests justify delaying any equitable intervention by Article III

courts until after conviction. In re Al-Nashiri, 835 F.3d at 122, 124. Mr. al-Baluchi is being

tried pursuant to such a commission, and he seeks just such equitable relief. There is little




       9
               Many of these rights to avoid a trial have been recognized in the analogous
context of deciding whether to grant interlocutory appeal of matters that would be effectively
unreviewable on appeal from final judgement. See In re Al-Nashiri, 835 F.3d at 131 (citing
Midland Asphalt Corp. v. United States, 489 U.S. at 801).
       10
              Respondents frame most of their arguments in terms of abstention. And Mr. al-
Baluchi’s arguments for an injunction or mandamus are also his arguments against abstention.


                                                 12
question, therefore, that the Court should abstain unless some exception to Councilman

abstention applies. Mr. al-Baluchi does not ask this Court to hold that abstention should not

apply to MCA military commissions at all, but does seek to preserve the argument for appeal.

He concedes, as he must, that the court of appeals’ decision in In re Al-Nashiri requires this

Court to reject the broader argument about the applicability of abstention doctrine to military

commissions. See Mot. Hr’g Tr. at 15, 43.


               2. No Exceptions to Councilman Abstention Apply to Mr. al-Baluchi

               The Court now considers whether there are “any features unique to [petitioner’s]

case” that make it inappropriate to abstain. In re Al-Nashiri, 835 F.3d at 128. Once an Article

III court determines that a coordinate system protects a defendant’s rights and that an important

interest justifies non-interference, abstention exceptions are “limited and narrow.” Id. at 129.

Mr. al-Baluchi makes several arguments as to why this Court should not abstain. And, for the

most part, these are the same arguments he makes in favor of his request for an injunction or

mandamus. Mr. al-Baluchi argues that he is entitled to an extraordinary circumstances exception

because imposing a capital punishment would violate prohibitions against cruel and unusual

punishment and double jeopardy. He also claims a jurisdictional exception to Councilman

abstention that may be available where the legal challenge turns on the status of the person

subject to the proceeding. Mr. al-Baluchi makes two attempts to claim this exception: (1) he

argues that his status as a person whom the government has allegedly tortured means that the

government lacks authority to subject him to the military commission, and (2) he argues that a

military commission convened with the authority to impose cruel or unusual punishment or

double punishment is ultra vires (and thus lacks personal jurisdiction).




                                                13
                                   a. Cruel and Unusual Punishment

                   Mr. al-Baluchi makes two related arguments about the ways in which his military

commission violates the prohibition against cruel and unusual punishment. First, he argues that

executing him would violate Fifth and Eighth Amendment (and statutory) prohibitions on cruel

and unusual punishment because he has already been tortured. But the history of the Eighth

Amendment shows that it was intended to protect “convicted criminals” from the infliction of

certain sentences, Ingraham v. White, 430 U.S. 651, 664 (1977), and that it “comes into play

only after a formal adjudication of guilt.” See Iraq and Afghanistan Detainees Litigation, 479 F.

Supp. 2d 85, 103 (D.D.C. 2007) (citing Whitley v. Albers, 475 U.S. 312, 318 (1986)). Likewise,

the Military Commissions Act of 2009 (on which Mr. al-Baluchi also relies) refers to

punishments that are “adjudged” or “inflicted” by the commission. See 10 U.S.C. §949s. Mr.

al-Baluchi has not yet been convicted or sentenced by the military commission whose power he

seeks to enjoin.

               Mr. al-Baluchi has offered no authority – under either the Eighth or Fifth

Amendments – which establishes that pre-indictment mistreatment renders unconstitutional a

hypothetical punishment that could be imposed by a tribunal that was not involved in the alleged

torture. The alleged torture does not constitute an element of a later sentence imposed by a

separate entity. Indeed, at the motions hearing, Mr. al-Baluchi’s counsel conceded that if the

Court cannot include the prior treatment in its analysis of constitutionality of the commission and

its punishment, “our claim doesn’t have a lot of legs to stand on.” Mot. Hr’g Tr. at 11.

               Mr. al-Baluchi’s second “cruel and unusual” argument relates not to the

imposition of capital punishment but to what he must endure in the interim. He argues that

undergoing pre-trial proceedings, trial, and a lengthy non-waivable appeals period – all under the



                                                 14
“shadow of death,” Mot. Hr’g Tr. at 28 – imposes psychological distress that amounts to cruel

and unusual punishment in light of his past mistreatment. Mr. al-Baluchi posits that these are

“extraordinary circumstances” that counsel against abstention. One sense in which the argument

is “extraordinary,” to be sure, is that it falls beyond what courts ordinarily accept as cruel and

unusual punishment claims. See Mot. Hr’g Tr. at 11-12. Mr. al-Baluchi advances a radical

proposition: that undergoing a statutorily authorized trial should itself be considered a

punishment, and a cruel and unusual one at that.

               This simply is not the law. Mr. al-Baluchi notes with approval the reasoning

contained in a memorandum from Justice Stevens concerning denial of certiorari in Lackey v.

Texas, 514 U.S. 1045 (1995). There, Justice Stevens considered the possibility that it might be

cruel and unusual punishment to execute a man after he had already spent seventeen years on

death row. See id. at 1045. But neither denial of certiorari nor an individual Justice’s statements

in connection with such denial constitutes authority to which a court must give consideration.

See United States v. Jones, 744 F.3d 1362, 1369 (D.C. Cir. 2014) (“[W]hatever the merits of

Justice Scalia’s argument [dissenting from denial of certiorari], it is not the law.”). See also

Boumediene v. Bush, 549 U.S. 1328, 1329 (2007) (Stevens and Kennedy, JJ., respecting denial

of certiorari) (“[A]s always, denial of certiorari does not constitute an expression of any opinion

on the merits.”).

               Furthermore, the theory of cruel and unusual punishment that Justice Stevens

articulated in Lackey – and that Mr. al-Baluchi now advances – has not been adopted by other

courts, as Mr. al-Baluchi concedes. See Mot. Hr’g Tr. at 11-12. Only one case cited by Mr. al-

Baluchi – a case from the European Court of Human Rights – appears to recognize a not-yet-

convicted petitioner’s claim for pre-trial relief based on the possible imposition of the death



                                                 15
penalty. See Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989); see also Resp. Cross

Mot. at 36 (listing cases). Soering is not binding on this Court. Nor do arguments relying on

Mr. al-Baluchi’s particular distress overcome the admonition from the court of appeals,

regarding possible exceptions from Councilman abstention, that “the cost, anxiety, and

inconvenience of having to defend against a single criminal prosecution cannot by themselves be

considered irreparable in the special legal sense of the term.” In re Al-Nashiri, 835 F.3d at 128

(quoting Schlesinger v. Councilman, 420 U.S. at 755).

               The Court does not doubt that Mr. al-Baluchi is experiencing substantial stress in

apprehension of his trial before the military commission and his possible sentence, but so do all

capital defendants. Yet, even harms that are greater “in both kind and magnitude . . . from the

harms experienced by the average criminal defendant” need not compel equitable intervention.

See In re Al-Nashiri, 835 F.3d at 129. 11 Abstention remains appropriate “when the petitioner is

threatened with no injury other than that incidental to every criminal proceeding brought

lawfully and in good faith.” Schlesinger v. Councilman, 420 U.S. at 754-55. Because

petitioner’s arguments here rely on his past mistreatment, they concern “his particular

vulnerabilities to a trial by a military commission at Guantanamo Bay.” See In re Al-Nashiri,

835 F.3d at 129. Such vulnerabilities do not undermine “the competence of the military

commission itself” and “do not meet the requirements of the extraordinary circumstances”

exception to abstention. Id. Mr. al-Baluchi asserts that his history exacerbates the stress of the

proceedings and the burden of a sentence. While the military commission may wish to consider




       11
               In re Al-Nashiri also entailed a petitioner unsuccessfully seeking an abstention
exception for harms that included harsh mistreatment. See Mot. Hr’g Tr. at 16; In re Al-Nashiri,
835 F.3d at 129.


                                                16
these equitable arguments at the time of any sentence it imposes, these factors do not

preemptively bar a trial and sentence.

               Finally, even if this Court did agree with Mr. al-Baluchi that either the imposition

of capital punishment or its anticipation is cruel and unusual under his circumstances, those

arguments do not merit an exception to abstention. The extraordinary circumstances exception is

available if petitioner establishes that his arguments could not be “fairly and fully

adjudicate[ed]” by the commission itself. See In Re Al-Nashiri, 835 F.3d at 128. But Mr. al-

Baluchi’s counsel conceded that “as far as I know, [these arguments] could be raised in the

military commission.” Mot. Hr’g Tr. at 26. 12 And respondents agree that the commission may

hear “all of the claims that he has raised [before this Court]” at the commission. Id. at 33. 13 Nor

would the imposition of a sentence of death – even if it would be cruel and unusual punishment

if applied to Mr. al-Baluchi – “create[] an injury that cannot be remedied on appeal.” In Re Al-

Nashiri, 835 F.3d at 131.




       12
             Mr. al-Baluchi’s argument that he is entitled to avoid any proceedings before the
commission because it is ultra vires are unavailing. See Part III.A.2.c, infra at 21-23.
       13
                 In addition, respondents have argued that the constitutional right to avoid cruel
and unusual punishment does not have extraterritorial applicability to detainees at Guantanamo
Bay. See Resp. Cross Mot. at 26. As Mr. al-Baluchi has noted, however, our court of appeals
recently has confirmed that precedent “leaves open and unresolved the question of what
constitutional procedural protections apply to the adjudication of detainee habeas corpus
petitions.” Pet. Notice of Suppl. Authority, Dkt. No. 217, at 2 (citing Qassim v. Trump, et al.,
No. 18-5148, 2019 WL 2553829, at *6 (D.C. Cir. June 21, 2019)); see also Boumediene v. Bush,
553 U.S. at 771, 779, 781 (holding that the Suspension Clause “has full effect at Guantanamo
Bay” and that detainees there “are entitled to the privilege of habeas corpus to challenge the
legality of their detention”). Nevertheless, the Court need not determine the extent of Mr. al-
Baluchi’s constitutional rights to resolve the pending motions. Even if Mr. al-Baluchi may claim
the constitutional right to avoid cruel and unusual punishment, the present circumstances do not
merit an exception to Councilman abstention, for the reasons described supra.

                                                 17
                                           b. Double Jeopardy

                Mr. al-Baluchi also claims the right to avoid a trial that violates the constitutional

prohibition against double jeopardy, which is one of the few recognized exceptions to abstention.

See Abney v. United States, 431 U.S. at 659. But the exception is narrow, and its application is

warranted only if the double jeopardy allegations are colorable. See Murphy v. Commonwealth

of Virginia, 896 F. Supp. 577, 581-83 (E.D. Va. 1995). Mr. al-Baluchi’s allegations are not. He

argues that imposing a capital sentence (or making him endure a long trial and appeals period)

would levy a double punishment, since he has already been tortured. But Mr. al-Baluchi cannot

suffer double jeopardy without initial jeopardy. “In the constitutional sense, jeopardy describes

the risk that is traditionally associated with a criminal prosecution . . . . the risk to which the

Clause refers is not present in proceedings that are not essentially criminal.” Breed v. Jones, 421

U.S. 519, 528 (1975). Mr. al-Baluchi’s pre-Guantanamo detention was not an “essentially

criminal” proceeding. He does not claim that jeopardy ever attached with respect to any of the

nine offenses for which he is now being prosecuted (or any other offense), so the alleged torture

was not a punishment in the sense relevant to the double jeopardy prohibition.

                An additional consideration defeats the double jeopardy argument. The

constitutional prohibition against double jeopardy prohibits both a second prosecution for the

same offense and a second punishment for the same offense. See Abney v. United States, 431

U.S. at 66-61. 14 But prevention of multiple or successive trials for the same offense is “the only




        14
                The Military Commissions Act, 10 U.S.C. § 949h, and the Uniform Code of
Military Justice, 10 U.S.C. § 844, protect a person from being “tried . . . a second time for the
same offense.” Mr. al-Baluchi argues that, in fact, these statutes also impliedly prohibit double
punishment. The question is immaterial because, as described, double punishment of the nature
alleged would not confer the requested relief.

                                                   18
objective of the double jeopardy clause that cannot be adequately protected by appeal from (or

collateral attack on) a judgment of conviction in the second prosecution.” United States ex rel.

Stevens v. Circuit Court of Milwaukee County, 675 F.2d 946, 947-48 (7th Cir. 1982).

Mr. al-Baluchi’s arguments fail because he does not claim that his military commission is a

second trial on the charged offenses, nor could he. He alleges only that, because he has already

been tortured, a sentence of death (and its anticipation) would be a second punishment. Mr. al-

Baluchi can present claims of that nature to his military commission (or on appeal). 15


                                       c. The “Status” Exception

               Mr. al-Baluchi also marshals cruel and unusual punishment arguments in service

of his attempt to claim the “status exception” to Councilman abstention. Under this theory,

abstention “is not appropriate in cases in which individuals raise substantial arguments denying

the right of the military to try them at all, and in which the legal challenge turns on the status of

the persons as to whom the military asserted its power.” Hamdan v. Rumsfeld, 548 U.S. at 585,

n. 16. See also Khadr v. Bush, 587 F. Supp. 2d 225, 234 (D.D.C. 2008) (recognizing the status

exception to the “normal practice” of abstention) (quoting Councilman v. Schlesinger, 420 U.S.

at 759). An individual may merit the status exception when “there is a substantial question

whether a military tribunal has personal jurisdiction over the defendant” at all. Hamdan v.

Rumsfeld, 548 U.S. at 585, n. 16.

               Although “the precise contours of this status exception are unclear . . . the

Supreme Court has offered two examples of challenges that come within its scope.” In re Al-



       15
                As with Mr. al-Baluchi’s arguments concerning cruel and unusual punishment,
see supra n. 13, the Court need not decide whether Mr. al-Baluchi can claim this constitutional
right to avoid double jeopardy because the Court otherwise concludes that it would not justify an
exception to abstention under these circumstances.
                                                  19
Nashiri, 835 F.3d at 133. Neither example supports Mr. al-Baluchi’s claim to the status

exception.

               The first example in which the status exception could apply is “when the military

attempts to court-martial a defendant who is undisputedly a civilian.” In re al Nashiri, 835 F.3d

at 133. This exception emerges from a pre-Councilman line of cases in which “habeas

petitioners were civilians who contended that Congress had no constitutional power to subject

them to the jurisdiction of courts-martial.” Schlesinger v. Councilman, 420 U.S. at 759

(discussing United States ex rel Toth v. Quarles, 350 U.S. 11 (1955); Reid v. Covert, 354 U.S. 1

(1957)) (emphasis added). In such cases, the “disruption to petitioners’ civilian lives and the

accompanying deprivation of liberty” made abstention “especially unfair,” as did the military

courts’ lack of expertise in the constitutional claims of the habeas petitioners. Schlesinger v.

Councilman, 420 U.S. at 759; see also Noyd v. Bond, 395 U.S. 683, 696 n. 8 (1969); Khadr v.

Bush, 587 F. Supp. 2d at 233.

               Mr. al-Baluchi posits only an attenuated basis for claiming this type of status

exception: that he bears “the status of a victim of torture at the hands of the United States

government.” Mot. Hr’g Tr. at 6. This is an inventive but inapposite characterization. In the

context in which courts have recognized this status exception, “status” refers to whether one is

within the class of persons that Congress specifically set aside for trial by a non-Article III

tribunal. See Khadr v. Bush, 587 F. Supp. 2d at 232 (noting that the exception has only been

recognized for defendants in courts martials who claimed to be civilians). For courts martial,

that status is being a member of the military. For military commissions, that status is being an




                                                 20
alien unprivileged enemy belligerent. See 10 U.S.C. §948c. 16 Whether a defendant is a civilian

or a member of the military is a legal inquiry directly imposed by statute. Conversely, whether

or not a belligerent has been tortured is independent of the statutory classification that makes

certain defendants eligible for a military commission. An exception to abstention is not

warranted in such circumstances. See Khadr v. Bush, 587 F. Supp. 2d at 234 (declining to

extend the status exception to a Guantanamo Bay detainee who claimed that his military

commission lacked jurisdiction because of the detainee’s status as a juvenile at the time of his

capture).

               Finally, interpreting this kind of status exception to include Mr. al-Baluchi does

not advance the aims that originally justified the recognition of the status exception. In this case,

Mr. al-Baluchi will remain detained even if this Court grants his petition for habeas corpus. See

Mot. Hr’g Tr. at 30-31, 36-37. Hence, the “deprivation of liberty” posed by the Court’s decision

to abstain in this case has a character different from the injury faced by citizen civilians taken

before military courts, who were not independently likely to have been detained by the military

upon successful habeas petition. Cf. Noyd v. Bond, 395 U.S. at 696 n. 8.

               The second recognized example of a challenge that comes within the status

exception arises from the Hamdan petitioner’s claim that his military commission was not

“regularly constituted” under the Geneva Conventions. “An irregularly constituted court is ultra

vires and therefore necessarily lacks personal jurisdiction over any defendant.” In re Al-Nashiri,

835 F.3d at 133-34 (quoting Hamdan v. Rumsfeld, 548 U.S. at 589 n. 20) (internal quotations

omitted). As Mr. al-Baluchi has conceded, the passage of the Military Commissions Act by




       16
                Mr. al-Baluchi does not challenge his status as an alien unprivileged enemy
belligerent for purposes of these proceedings. See Mot. Hr’g. Tr. at 35.
                                                 21
Congress in 2006 neutralized the Hamdan petitioner’s particular status exception argument by

bringing military commissions into compliance with obligations imposed by the Geneva

Conventions. See Mot. Hr’g Tr. at 23.

               Mr. al-Baluchi argues by analogy, however, that he qualifies for the status

exception to abstention because his military commission’s ability to impose a sentence of death

renders the commission ultra vires in violation of the MCA’s prohibition on cruel and unusual

punishment. 17 But in In re Al-Nashiri, the court of appeals clarified that the ultra vires status

exception is simply an application of the status exception recognized in Reid and Quarles (for

cases where the legal status of the defendant lies outside the jurisdiction of the court martial). As

explained earlier, Mr. al-Baluchi cannot claim that kind of status exception. What Mr. al-

Baluchi proposes is, in fact, a new application of the status exception. But, as he himself

acknowledges, courts have not yet recognized a status exception that extends beyond the two

specific examples in the Hamdan dicta. See Mot. Hr’g Tr. at 24.

               To extend the scope of the status exception in the manner urged by Mr. al-Baluchi

would be at odds with the general principles that govern Councilman abstention because his

arguments do not amount to a right to avoid trial. Mr. al-Baluchi cites McLaughry v. Deming,

186 U.S. 49 (1902), for the proposition that a military commission, like a court martial, lacks

jurisdiction when it is incompetent or constituted in “direct and plain violation of the act of

Congress.” See id. at 63. Mr. al-Baluchi would like the Court to intervene now, before trial,

because any hearings before such a commission – one that he believes to be ultra vires – are the




       17
                In addition to the basis for an exception to Councilman abstention, this purported
ultra vires defect is also Mr. al-Baluchi’s primary affirmative argument for an injunction. He
believes that the defect is jurisdictional, rendering his commission void ab initio.


                                                 22
very injuries he seeks to avoid. First, however, Mr. al-Baluchi has not established the premise on

which this argument depends: a colorable claim that executing him (or continuing to detain him)

would actually violate the statutory and constitutional prohibitions against cruel and unusual

punishment or double jeopardy. See Part III.A.2.a-b, supra. Second, Mr. al-Baluchi’s “status” as

a torture victim implicates his “particular vulnerabilities to a trial by military commission” rather

than “the competence of the military commission itself,” as generally required for an exception

to Councilman abstention. In re al Nashiri, 935 F.3d at 34. As a result, the Court will not extend

the status exception to Mr. al-Baluchi’s claims. There is no “substantial question [of] whether

[the] military tribunal has personal jurisdiction over the defendant,” or whether the commission

can hear his claims fairly. See id. at 133.


                                        d. Outrageous Conduct

               While it is not a recognized exception to Councilman abstention, Mr. al-Baluchi

also asks the Court – as a matter of “conscience and justice” – to dismiss the military

commission charges against him as a remedy for the government’s “outrageous conduct” during

his pre-Guantanamo detention, a period during which the government allegedly tortured him.

Mr. al-Baluchi does not establish, however, that the military commission itself is incapable of

fully and fairly adjudicating this claim. And Mr. al-Baluchi’s theory of outrageous

conduct – that it requires pretrial dismissal of charges – has attained little support. In United

States v. Padilla, 2007 WL 1079090 (S.D. Fla. 2007), for example, the district court declined to

recognize outrageous conduct claims that, like the conduct alleged by Mr. al-Baluchi, concerned

defendant’s treatment in military custody after commission of the crime. Id. at *3 n. 6. While

the Supreme Court has acknowledged that it “may someday be presented” with law enforcement

conduct that is “so outrageous that due process principles would absolutely bar . . . [invocation

                                                 23
of] the judicial process” at all, see Russell v. United States, 411 U.S. 423, 431 (1973), the Court

has never actually accepted this defense as grounds for dismissing an indictment before

conviction. And as Mr. al-Baluchi conceded at the motions hearing, there is not “any United

States case law that [deals] with anything remotely similar to the type of treatment that we’re

dealing with here.” Mot. Hr’g Tr. at 13. 18

               Some courts have considered dismissal of convictions for outrageous conduct, but

generally have done so only in cases of entrapment. See United States v. Boone, 437 F.3d 829,

842 (8th Cir. 2006) (“the rule that outrageous government conduct can foreclose criminal

charges has been applied by our court almost exclusively to situations involving entrapment,

where law enforcement officers have sought to create crimes in order to lure a defendant into

illegal activity that she was not otherwise ready and willing to commit”) (internal quotations

omitted); United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir. 1986), vacated in part on other

grounds on rehearing sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986) (“[A]

successful due process defense must be predicated on intolerable government conduct which

goes beyond that necessary to sustain an entrapment defense.”) (citing United States v. Jannotti,

673 F.2d 578, 607-08 (3d Cir. 1982) (en banc)). But Mr. al-Baluchi has not argued that the

government entrapped him into engaging in conduct to which he was not otherwise predisposed.




       18
                United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) is not to the contrary.
The court in Toscanino acknowledged the possibility that the conduct of law enforcement in the
process of bringing a defendant to the United States could be so outrageous that due process
would require dismissal of the charges. Id. at 274-76. But no court has dismissed an indictment
before a trial on this authority. Generally, “the manner by which a defendant is brought to trial
does not affect the government’s ability to try him.” United States v. Umeh, 527 Fed. App’x 57,
64 (2d Cir. 2013).


                                                 24
               Whatever viability the outrageous conduct remedy retains in theory, Mr. al-

Baluchi must address his outrageous conduct allegations to the military commission in the first

instance. The allegations do not compel this Court to recognize a new exception to Councilman

abstention.


                                         e. Suspension Clause

               Finally, Mr. al-Baluchi argues that, even if his circumstances do not qualify for an

exception to abstention, denying him recourse to this Court would nevertheless violate the

Suspension Clause. See U.S. Const. art. I, § 9 (“The privilege of the Writ of Habeas Corpus

shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may

require it.”). But abstention under these circumstances does not suspend the writ: it is axiomatic

that petitioners must generally exhaust other judicial remedies before applying for federal habeas

relief. “[T]he Supreme Court has explained in the court-martial context that ‘a deferment of

resort to the writ until other corrective procedures are shown to be futile’ is ‘in no sense a

suspension of the writ of habeas corpus.’” In re Al-Nashiri, 835 F.3d at 130 (quoting Gusik v.

Schilder, 340 U.S. 128, 132, (1950)). Mr. al-Baluchi alleges that abstention would deprive him

of a meaningful opportunity to present his habeas claims. His arguments on this score ring

hollow as long as Mr. al-Baluchi has the opportunity to present his claims to his military

commission. Like his other positions, Mr. al-Baluchi’s Suspension Clause argument depends on

the claim that he cannot be made to litigate his claims before a military commission that is ultra

vires. For the reasons described above, the Court does not accept the premise on which that

argument relies.




                                                 25
                                  B. Mandamus Relief is Unavailable

               As an alternative to his habeas claim, Mr. al-Baluchi asks the Court to exercise its

mandamus jurisdiction to halt the military commission. Mot. Hr’g Tr. at 28-30. 19 The relevant

mandamus statute authorizes the Court to hear “any action in the nature of mandamus to compel

an officer or employee of the United States or agency thereof to perform a duty owed to the

plaintiff.” 28 U.S.C. § 1361. But mandamus is a “drastic remedy,” available only when

petitioner has a clear right to relief, respondents have a clear duty to act, and there is no other

adequate remedy available. Thomas v. Holder, 750 F.3d 899, 903 (D.C. Cir. 2014); see also

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (noting that the

“party seeking mandamus has the burden of showing that its right to issuance of the writ is ‘clear

and indisputable’”). See also In re Al-Nashiri, 835 F.3d at 136 (indicating in the context of the

All Writs Act, 28 U.S.C. §1651(a), that mandamus is appropriate only if (1) there is no other

adequate means to obtain relief; (2) the right to issuance of the writ is “clear and indisputable”;

and (3) the writ is “appropriate under the circumstances”).

               However else Mr. al-Baluchi’s arguments may be characterized, they do not

establish a “clear and indisputable” right to relief, as the foregoing discussion and the parties’

briefs amply illustrate. Nor has Mr. al-Baluchi shown that he has no other adequate remedy

available. He concedes that he has not raised the claims he makes to this Court before the

military commission. See Mot. Hr’g Tr. at 25-26. Yet, “[t]he MCA explicitly empowers




       19
               Because the Court concludes that mandamus is inappropriate in any event, it need
not resolve respondents’ claim that 10 U.S.C. § 950g confines mandamus jurisdiction of Mr. al-
Baluchi’s claim to the D.C. Circuit alone. See Part III.C, infra.


                                                  26
military commissions to make findings sufficient to determine their own jurisdiction.” In re Al-

Nashiri, 835 F.3d at 125 (citing 10 U.S.C. § 948d).


                    C. The Court Need Not Resolve Other Jurisdictional Disputes

                Aside from whether the Court should exercise jurisdiction, the parties disagree

about whether the Court possesses subject matter jurisdiction at all. Specifically, the parties

disagree about whether Mr. al-Baluchi’s petition advances habeas claims (over which the court

has jurisdiction) or whether it is an “other action” (over which it has no jurisdiction). See 28

U.S.C. 2241(e). In addition, respondents urge the Court to adopt a broad reading of 10 U.S.C.

§ 950g, which gives the D.C. Circuit exclusive jurisdiction to determine the validity of final

military commissions judgments – thus, they say, effectively reserving for the D.C. Circuit

jurisdiction over any matters that might pertain to future appeals, including Mr. al-Baluchi’s

petition to this Court. In view of the Court’s other determinations, however, there is no need for

this Court to resolve the disputes concerning 28 U.S.C. § 2241(e) and 10 U.S.C. § 950g.

Because the Court has decided to abstain from resolving the substance of the claims in Mr. al-

Baluchi’s habeas petition and that the exercise of mandamus jurisdiction is not appropriate, it

need not determine whether Section 2241(e) or Section 950g precludes subject matter

jurisdiction over Mr. al-Baluchi’s claims. See In re Al-Nashiri, 835 F.3d at 117 (“Because the

motion was properly denied on [Councilman abstention] grounds, we need not consider the

district court’s subject matter jurisdiction any further.”).




                                                  27
                  D. The Abstention Decision Resolves Both of the Instant Motions

                     1. Respondents’ Cross Motion to Stay Habeas Proceedings

               Because the Court has concluded that it must abstain from considering Mr. al-

Baluchi’s claims for equitable relief until the military commission concludes its proceedings,

respondents’ cross motion to stay proceedings in this Court will be granted. Since the Court will

abstain from resolving the merits of Mr. al-Baluchi’s claims, it is appropriate to stay all

proceedings relating to those claims. A stay will conserve limited judicial resources until such

time as the merits may be decided and, importantly, will avoid interference with the military

commission, a primary aim of Councilman abstention. 20

               This stay is neither universal nor irrevocable. It applies to claims that have been,

will be, or could be adjudicated at the military commission or on appeal therefrom. See Khadr v.

Bush, 587 F. Supp. 2d at 230. The stay imposed today is justified by the motions now before the

Court. It will not prevent this Court from exercising its jurisdiction over a subsequent habeas

petition that merits an exception to abstention: for example, one that raises a claim that cannot be

raised before the military commission. Should there be a good faith basis for Mr. al-Baluchi to

advance such a claim at a later date, he may file a motion to lift the stay.




       20
                 To wit, factual findings from this Court could produce rulings on the key
questions that are inconsistent with rulings on those questions from the military commission.
For example, the commission will decide whether Mr. al-Baluchi is guilty of a variety of crimes
related to supporting terrorist attacks, while the habeas petition before this Court alleges that
petitioner is “[innocent] of all wrongdoing.” Habeas Petition at 1. And respondents’ evidence in
the habeas proceeding appears to be materially similar to the government’s evidence in the
military commission. Civil courts should avoid “[churning] over the same evidentiary material”
that is at issue in a parallel criminal matter. See Brown v. U.S. Dep’t of Justice, 715 F.3d 662,
668 (D.C. Cir. 1983). The habeas proceedings and the military commission have been
proceeding in parallel for years, but the likelihood of conflicting rulings – and the magnitude of
the resulting interference – is substantially greater as the military commission draws closer to
trial.
                                                 28
                       2. Mr. al-Baluchi’s Motion for a Permanent Injunction

               Because the Court will abstain from adjudicating Mr. al-Baluchi’s claims before

the conclusion of the military commission proceedings, the Court denies as moot Mr. al-

Baluchi’s petition to permanently enjoin that military commission. The court of appeals

endorsed this approach to the materially similar cross motions in In re Al-Nashiri. There, the

court did not rule on the merits of petitioner’s motion to enjoin his military commission trial

because the district court correctly decided to abstain from resolving petitioner’s habeas motion

until completion of the military commission. “It would be illogical for a federal court to

preliminarily enjoin a parallel court proceeding when it will abstain from reviewing that

proceeding altogether.” In re Al-Nashiri, 835 F.3d at 135.


                                        IV.     CONCLUSION

               For the foregoing reasons, respondents’ cross motion [Docket No. 204] is granted

and petitioner’s motion [Docket No. 200] is denied. The following motions are stayed pending

further order of this Court: Docket Nos. 125, 152, 155, 156, 157, and 160. An Order giving

effect to this Opinion shall issue this same day.




                                                             _____________________
                                                             PAUL L. FRIEDMAN
                                                             United States District Judge

DATE: July 29, 2019




                                                    29
