In re Al-Nashiri
416 U.S. App. D.C. 248
D.C. Cir.2016Background
- Abd al-Rahim al‑Nashiri, a Guantanamo detainee, is tried by military commission on capital charges (including the USS Cole bombing). He seeks mandamus to disqualify two military judges on the U.S. Court of Military Commission Review (CMCR).
- Nashiri argued CMCR military judges were unconstitutionally appointed/insulated: violation of the Appointments Clause and the Commander‑in‑Chief Clause (removal protection).
- The CMCR denied recusal; Nashiri petitioned this Court for mandamus/prohibition to disqualify the military judges from the interlocutory appeal of dismissal of charges related to the M/V Limburg bombing.
- The D.C. Circuit has statutory appellate jurisdiction over final military commission judgments under the 2009 Military Commissions Act, and mandamus may be issued under the All Writs Act to protect that jurisdiction.
- The court found it had jurisdiction to entertain mandamus but emphasized mandamus’s extraordinary nature and the 2009 MCA’s final‑judgment scheme favoring review on direct appeal.
- The court denied mandamus, holding Nashiri could adequately raise his constitutional claims on direct appeal and that he failed to show lack of other remedies or a clear and indisputable right to relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to grant mandamus in aid of future appellate review | Mandamus authorized to protect appellate jurisdiction over CMCR matters | Government: 2006 MCA §2241(e)(2) strips such habeas/other‑action remedies, precluding writs | Court: Has mandamus jurisdiction under All Writs Act; §2241(e)(2) does not clearly strip mandamus authority |
| Adequacy of alternative remedies (no other adequate means) | Nashiri: interlocutory recusal denial requires immediate relief; appellate review insufficient | Government: 2009 MCA permits full review on direct appeal from final judgment | Court: Ordinary appeal from final judgment is adequate; no irreparable harm shown to justify mandamus |
| Irreparable harm from capital prosecution | Nashiri: defending capital case imposes sui generis, irreparable burdens warranting early relief | Government: burdens of trial are not sufficient to bypass final‑judgment rule | Court: Capital burdens insufficient; Harper distinguished—here issues concern appellate composition, not death‑penalty statute |
| Appointments Clause (are CMCR military judges principal officers?) | Nashiri: CMCR military judges exercise significant authority and have removal protections, so they may be principal officers needing Senate appointment | Government: military judges are commissioned officers; assignment to CMCR fits Weiss/Edmond framework; removal/ supervision distinctions mean they are inferior officers | Court: Questions are novel and not clearly resolved; not a clear and indisputable right to relief—mandamus denied; issues can be addressed on direct appeal |
Key Cases Cited
- Edmond v. United States, 520 U.S. 651 (1997) (distinguishes principal vs. inferior officers by supervision and review structure)
- Weiss v. United States, 510 U.S. 163 (1994) (commissioned military officers may serve as military judges without separate appointment when duties are germane)
- Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332 (D.C. Cir. 2012) (for‑cause removal and Article II review by Article III court weigh toward principal‑officer status)
- Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008) (statutory silence does not clearly strip All Writs Act authority; clear‑statement rule applies)
- Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) (mandamus warranted for interference with agency deliberations; recusal/ bias context explained)
- Boumediene v. Bush, 553 U.S. 723 (2008) (struck down part of MCA’s habeas limitations; establishes limits on jurisdictional stripping)
- Cheney v. United States Dist. Court, 542 U.S. 367 (2004) (mandamus standards; extraordinary remedy with three prerequisites)
- Kerr v. United States Dist. Court, 426 U.S. 394 (1976) (caution against mandamus where it would frustrate Congress’s final‑judgment policies)