Abd Al-Nashiri v. Bruce MacDonald
741 F.3d 1002
9th Cir.2013Background
- Abd Al Rahim Hussein Al-Nashiri, a noncitizen, is an enemy combatant detained at Guantanamo Bay and subject to a military commission proceeding.
- Al-Nashiri is charged in connection with three plots: the 2000 U.S.S. Cole attack, the 2000 Sullivans attack, and the 2002 Limburg attack.
- He seeks declaratory relief that the military commission lacks jurisdiction because the offenses occurred in Yemen, where hostilities were not ongoing in 2000 or 2002, arguing MacDonald exceeded authority.
- Congress enacted the 2006 Military Commissions Act (MCA §7) to strip courts of jurisdiction over certain detainee actions; the 2009 MCA revised the offenses and context for trial by military commissions.
- The district court dismissed the action under MCA §7 for lack of subject matter jurisdiction, and, alternatively, abstained under Schlesinger v. Councilman.
- MacDonald was replaced as Convening Authority by Paul Oostburg Sanz in 2013; Al-Nashiri’s suit proceeded against the official-capacity defendant, leading to substitution under Rule 43.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does MCA §7 strip subject matter jurisdiction over non-habeas claims? | Al-Nashiri contends §7 does not apply to non-habeas actions. | The government maintains §7 bars all non-habeas actions relating to detention and conduct of military commissions. | Yes; §7 bars jurisdiction for non-habeas actions. |
| Does Boumediene defeat §7 as applied to this suit or leave §7 severable? | Boumediene held §7 suspends habeas, not necessarily §7's entire reach. | Boumediene severability allows §7(2) to remain operative; §7(2) can bar non-habeas actions. | Boumediene does not render §7 unconstitutional here; §7(2) remains applicable. |
| Is Al-Nashiri's suit properly against MacDonald in his official capacity, warranting substitution to Sanz? | Al-Nashiri asserts a capacity-based challenge to MacDonald's authority. | Because relief would bind the United States, suit lies against the official capacity defendant; substitute is proper. | Yes; suit is official-capacity, requiring substitution to Sanz. |
| Are Al-Nashiri's equal protection and bill of attainder challenges foreclosed by Hamad? | §7's classification lacks rational basis and could be a bill of attainder. | Hamad forecloses these challenges; §7 passes rational basis review and is not a bill of attainder. | Yes; Hamad forecloses these challenges. |
Key Cases Cited
- Boumediene v. Bush, 553 U.S. 723 (U.S. 2008) (held MCA §7 suspended habeas rights at Guantánamo)
- Hamdi v. Rumsfeld, 542 U.S. 507 (U.S. 2004) (meaningful opportunity to contest detention for enemy combatants)
- Hamdan v. Rumsfeld, 548 U.S. 557 (U.S. 2006) (invalidated many commission procedures; led to 2006 MCA)
- Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013) (MCA §2241(e)(2) survives Boumediene; §7 constitutionality reiterated)
- Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012) (Boumediene’s application to §2241(e)(2) discussed)
- Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) (official-capacity suit considerations; sovereign immunity context)
- Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422 (U.S. 2007) (threshold grounds for denying audience to a case on the merits)
- Larsen v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (U.S. 1949) (sovereign immunity and official-capacity actions nuanced)
- Valladolid v. Pacific Operations Offshore, LLP, 604 F.3d 1126 (9th Cir. 2010) (plain-language statutory interpretation and practicability)