Lead Opinion
Dissenting opinion filed by Circuit Judge TATEL.
Abd Al-Rahim Hussein Muhammed Al-Nashiri is the alleged mastermind of the bombings of the U.S.S. Cole and the French supertanker the M/V Limburg, as well as the attempted bombing of the U.S.S. The Sullivans. Together, the completed attacks killed 18 crew members and injured dozens more. The government charged Al-Nashiri with nine offenses for his role in the attacks' and convened a military commission to try him. His trial, and any subsequent appeals, will be governed by the Military Commissions Act, in which Congress strengthened the procedural protections and review mechanisms for military commissions in response to the Supreme Court’s guidance in Hamdan v. Rumsfeld,
I
A
At this pretrial stage, we recount the details of Al-Nashiri’s alleged offenses based on the information provided in the government’s charges. Al-Nashiri, a Saudi national, is a member of al Qaeda who orchestrated the attempted bombing of The Sullivans in January 2000 and the successful bombings of the Cole in October 2000 and the Limburg in October 2002.
Al-Nashiri met with Osama bin Laden and other senior members of al Qaeda -in 1997 or 1998 to plan a “boats operation” that would attack ships in the Arabian Peninsula. The government argues that while bin Laden was planning the “boats operation,” he was also coordinating the “planes operation” that would unfold on September 11, 2001. At bin Laden’s direction, Al-Nashiri and his alleged co-eon-spirator, Walid bin Attash, traveled to Yemen around 1998 to prepare for the boats operation. Al-Nashiri scouted the region and monitored ship traffic. He and his co-conspirators ultimately focused on Aden Harbor and bought and stored explosives to carry out an attack there. In 1999, after bin Attash was arrested, bin Laden instructed Al-Nashiri to take control of the operation. Al-Nashiri and his co-conspirators recruited others to the cause, bought a boat, and obtained false identification documents.
Under Al-Nashiri’s direction, his co-conspirators steered an explosive-filled boat toward The Sullivans in January 2000 while the warship was refueling. But the boat carrying the explosives foundered in Yemen’s Aden Harbor, thwarting the plan. Al-Nashiri and his co-conspirators recovered the boat and confirmed that the explosives could be used in future attacks. Sometime after the failed attack, Al-Nashi-ri returned to Afghanistan to meet with bin Laden and other high-ranking members of al Qaeda and to receive explosives training from an al Qaeda expert.
By the summer of 2000, Al-Nashiri had returned to Yemen to carry out prepara
Adhering to Al-Nashiri’s instructions, in October 2000 the suicide bombers launched the boat — again filled with explosives — and piloted it toward the Cole, which was refueling in Aden Harbor. The bombers gave friendly gestures to crew members and steered their boat alongside the Cole, where they detonated the explosives. The blast killed 17 crew members and injured at least 37, and left a hole in the Cole’s side measuring about 30 feet in diameter.
After the attack, Al-Nashiri began planning another bombing. He and his co-conspirators acquired another boat and explosives, with Al-Nashiri directing the transfer of money to fund the attack. In October 2002, suicide bombers under Al-Nashiri’s direction drew their explosive-filled boat alongside the French supertanker the Limburg near the port of A1 Mukallah, Yemen. The explosion blasted a hole in the ship’s hull, killing one crew member and injuring 12. Some 90,000 barrels of oil also spilled from the tanker into the Gulf of Aden.
Local authorities arrested Al-Nashiri in Dubai in 2002 and turned him over to U.S. custody. He was transferred to the Guantanamo Bay Naval Base in 2006. A year later, a Combatant Status Review Tribunal determined that Al-Nashiri was detainable as an “enemy combatant” under the Authorization for Use of Military Force that Congress had passed and the President had signed in response to the attacks of September 11, 2001. Al-Nashiri v. MacDonald,
B
The current system of military commissions at Guantanamo Bay “is the product of an extended dialogue among the President, the Congress, and the Supreme Court.” Al-Nashiri,
In response, Congress passed the Military Commissions Act (MCA), which established a system of military commissions and largely exempted them from the requirements of the UCMJ and the Geneva Conventions. The MCA created the Court of Military Commission Review (CMCR) and empowered it to review judgments of military commissions. Al-Nashiri,
The MCA provides that military commissions have jurisdiction to try “alien unprivileged enemy belligerents],” id. § 948c, for “any offense made punishable” by the MCA, “whether such offense was committed before, on, or after September 11, 2001.” Id. § 948d. The statute then lists 32 offenses that are “triable by military commission.” Id. § 950t. It further provides that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” Id. § 950p(c). Hostilities are defined as “any conflict subject to the laws of war.” Id. § 948a(9).
Al-Nashiri’s military-commission proceedings were placed on hold in early 2015, when the presiding military judge granted Al-Nashiri’s motion to abate the commission’s proceedings while the government pursued interlocutory appeals of two rulings. By statute, the government may take an interlocutory appeal of any ruling by a military judge that terminates commission proceedings on a charge or that “excludes evidence that is substantial proof of a fact material in the proceeding.” 10 U.S.C. § 950d(a)(l)-(2).
In the first interlocutory appeal, the government contested the military judge’s dismissal in 2014 of the charges stemming from the bombing of the Limburg. Al-Nashiri,
Al-Nashiri sought a writ of mandamus from our court in late 2014 to halt the first of these interlocutory appeals. He argued in part that because the two military judges on his CMCR appellate panel were “principal” officers, they should have been appointed to the CMCR by the President and confirmed by the Senate. See U.S. Const. art. II, §2, cl. 2; Al-Nashiri,
The Senate confirmed two military judges in April 2016, and the CMCR lifted its stay at the government’s request, even though Al-Nashiri asked the CMCR to continue the stay. See Order, United States v. Al-Nashiri, No. 14-001, — F.Supp.3d -,
C
In the present case, Al-Nashiri does not challenge the structural or procedural features of the military commissions created by Congress. He does not assert that the commissions are unconstitutional or that he was improperly classified as an “alien unprivileged enemy belligerent” subject to their jurisdiction. 10 U.S.C. § 948c. Instead, he argues that the offenses for which he has been charged are not triable by a military commission under the MCA because they were not “committed in the context of and associated with hostilities.” Id. § 950p(c). Because his alleged offenses had no nexus to hostilities, he contends, they are not war crimes, the only type of crime over which a military commission has jurisdiction under the Constitution.
Al-Nashiri first advanced these arguments in a motion to dismiss in 2012, but the military judge denied the motion without prejudice. According to the military judge, the existence of hostilities was a mixed question of law and fact. To the extent that it was a pure question of law, he deferred to what he called the “implicit” determinations of the political branches that hostilities existed at the time of Al-Nashiri’s alleged offenses. To the extent that the existence of hostilities was a question of fact, the government would need to prove that at trial.
Before us, Al-Nashiri advances his claims in two separate actions, which are consolidated here. The first began in 2014, when Al-Nashiri received permission from our district court to amend the habeas petition he filed in 2008. His amended petition asked the district court to enjoin his trial by the military commission and enter a declaratory judgment that his conduct did not occur in the context of hostilities. He also moved for a preliminary injunction to prevent his trial before the military commission until the district court ruled on his habeas petition. The government opposed this motion and moved to hold the habeas action in abeyance to allow the commission proceedings and corresponding appeals to run their course. To support its motion to hold the case in abeyance, the government relied upon Schlesinger v. Councilman,
The district court found that adjudicating Al-Nashiri’s habeas petition would unduly interfere with the proceedings of the military commission and accordingly granted the government’s motion to hold the case in abeyance pending the resolution of his military-commission trial and any subsequent appeals. Al-Nashiri v. Obama,
The second action before us is a petition for a writ of mandamus. Al-Nashiri asks us to dissolve the military commission convened to try him, also on the ground that his conduct did not take place in the context of hostilities.
We have jurisdiction to review the district court’s denial of preliminary injunc-tive relief under 28 U.S.C. § 1292(a)(1).
II
We first consider Al-Nashiri’s claim that the district court erred in denying his motion to preliminarily.enjoin his trial before the military commission pending the resolution of his habeas petition. The district court denied the motion based on its decision to hold Al-Nashiri’s habeas petition in abeyance pending the resolution of his case in the commission. Thus, to determine whether this denial was proper, we must examine whether the district court erred in staying Al-Nashiri’s habeas case.
We emphasize at the outset that the question in this case is not whether Al-Nashiri will be able to make his “hostilities” argument to an Article III court. The MCA provides an appeal as of right to our
A
The district court did not err, as a matter of law, in extending the principles announced in Councilman to Al-Nashiri’s case.
i
Federal courts generally “have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co.,
In Councilman, the Supreme Court extended this basic doctrine to a new context: courts-martial. The case involved a court-martial convened to try an Army officer for selling and possessing marijua
The Court grounded its decision in the corresponding abstention doctrine for state criminal prosecutions announced four years earlier in Younger v. Harris,
The Councilman Court acknowledged that the “peculiar demands of federalism” were not applicable to courts-martial, but it explained that “factors equally compelling” justified its decision to allow courts-martial to run their course without interference by the federal courts.
First, military discipline and, therefore, the efficient operation of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts. Second, federal courts should respect the balance that Congress struck between military preparedness and fairness to individual service members when it created “an integrated system of military courts and review procedures, a critical element of which is the Court of Military Appeals consisting of civilian judges completely removed from all military influence or persuasion....”
Id. at 586,
In Hamdan, the Supreme Court considered whether to extend the principles set out in Councilman to abstain from adjudicating a Guantanamo detainee’s challenge
The Hamdan Court instead determined that Ex parte Quirin,
ii
Much has changed since Hamdan. Within four months of the Supreme Court’s opinion — and in direct response to it— Congress passed the MCA, which established enhanced procedural protections and rigorous review mechanisms for military commissions. The committee report accompanying the House version of the MCA indicated that the legislation was an effort to respond to Hamdan, in which “[t]he Court [ ] suggested that the President could ask the United States Congress to authorize commission rules that diverge from the UCMJ, provided that they were consistent with the Constitution and other laws.” H.R. Rep. No. 109-664, pt. 1, at 4-5 (2006). And when signing the 2006 MCA, President Bush explained that the Supreme Court had ruled that the military commissions he had established after September 11 “needed to be explicitly authorized by the United States Congress.” See Statement by President George W. Bush upon Signing S. 3930, 2006 U.S.C.C.A.N. S61 (Oct. 17, 2006). The President explained that he “asked Congress for that authority, and they [] provided it” by passing the MCA. Id.
Al-Nashiri and amici urge that despite the significant changes enacted in the MCA, abstention remains as inappropriate here as it was in Hamdan. They argue that Al-Nashiri, like Hamdan, is not a
To determine whether “equally compelling” factors exist here, we must identify the precise role played by Councilman’s two comity considerations. Evaluating those considerations, we conclude that 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. The comity consider- ' ations in Councilman established both of these elements. With respect to adequacy, the Court did not evaluate the on-the-ground performance of courts-martial in protecting service members’ rights. Instead, it “assumed” the sufficiency of the structure Congress created, with its substantial procedural protections and provision for appellate review by judges insulated from military influence. Id. at 758,
The Court’s emphasis on these two considerations made sense in light of its abstention jurisprudence, developed in the context of state-court proceedings. That precedent made clear that abstention was appropriate only (1) where the petitioner would have an adequate remedy in the alternative forum, see Kugler v. Helfant,
Taking our cue from Councilman, then, we ask two questions to determine whether any sufficiently “compelling” factors justified the district court’s decision to abstain. First, we consider whether the system enacted to adjudicate Al-Nashiri’s guilt will adequately protect his rights. And second, we examine whether an “important countervailing interest” justifies the decision to avoid the district court adjudicating a pretrial challenge to the subject matter jurisdiction of a military commission created under the MCA.
iii
To answer the first question, we are convinced that the MCA’s review structure is adequate because it is virtually identical to the review system for courts-martial approved by the Court in Councilman. In the MCA, Congress established an “integrated” scheme dictating how enemy belligerents are to be tried and obtain appellate review, Councilman,
These review structures “closely (and intentionally) mirror[] the current structure for ... review of courts-martial.” Stephen I. Vladeck, Exceptional Courts and the Structure of American Military Justice, in Guantanamo and Beyond 163, 175 (Fionnuala Ni Aolain & Oren Gross eds., 2013). Not only does the composition of the commission itself closely mirror that of a court-martial — both have twelve members in capital cases and a presiding military judge — but the structure of appellate review is virtually identical across the two systems. The “scope of the CMCR’s post-conviction review is a word-for-word copy” of the portion of the UCMJ that sets out the authority of each service’s Court of Criminal Appeals, the military body that reviews court-martial convictions. Id. Compare 10 U.S.C. § 950f, with id. § 866. Similarly, the authority given to this court to review the CMCR’s decision is as broad as the authority that the UCMJ gives the Court of Appeals for the Armed Forces, the tribunal that Councilman approved as sufficiently “removed from [] military influence or persuasion,”
The similarity of the two systems’ review mechanisms strongly suggests that, if the review procedure for courts-martial is considered adequate to protect defendants’ rights, the same should be true of the review procedure for military commissions. Indeed, in one sense the review structure for military commissions is more insulated from military influence than is the structure for courts-martial. The judges on our court, unlike those on the Court of Appeals for the Armed Forces, enjoy Article Ill’s guarantees of life tenure and salary protection, further assuring that our review is not swayed by political pressures. See Hamdan,
We do not overlook the fact that although the review structures are virtually identical, the evidentiary and procedural rules in a military-commission trial differ in some regards from those in courts-martial. Even so, Al-Nashiri’s trial before a military commission will include a number of significant procedural and evidentiary safeguards. Among other things, he will have the right to be represented by counsel, 10 U.S.C. § 949c, be presumed innocent, id. § 949Í, obtain and offer exculpatory evidence, id. § 949j, call witnesses on his behalf, id. and challenge for cause any of the members of the military commission and the military judge, id. § 949f. In fact, Al-Nashiri does not argue before us that any evidentiary or procedural defects will prevent the military commission and various appellate bodies from fully adjudicating his defense that his conduct occurred outside the context of hostilities. Cf. JMM Corp.,
Al-Nashiri argues against this conclusion by identifying various features of military commissions that, in his view, suggest that they are deficient as compared to the court-martial system. According to Al-Nashiri, the commissions established by the MCA lack the established track record that courts-martial" had at the time of Councilman. He also points to two instances in which our court overturned military-commission judgments on appeal. But Al-Nashiri does not argue that these features render military commissions unlawful or will prevent him from presenting a full defense. Instead, by pointing to these alleged shortcomings, Al-Nashiri asks us to do what the Supreme Court notably did not do in Councilman: determine whether pretrial intervention is warranted by examining the on-the-ground performance of the system that Congress and the Executive have established. See
We next ask whether an “important countervailing interest” permits a federal court to decline to adjudicate a defendant’s pretrial claim that a military commission lacks subject matter jurisdiction to try his offense. It does. By providing for direct Article III review of Al-Nashiri’s jurisdictional challenge on appeal from any conviction in the military system, Congress and the President implicitly instructed that judicial review should not take place before that system has completed its work. And where this judgment was made out of concern for national security needs — an arena in which the political branches receive wide deference — we must follow their directive. We turn now to examining the vital interest we identify: 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.
Congress — with the approval of two Presidents — exercised its legitimate prerogatives when it decided, in response to Hamdan, that the ordinary federal court process was not suitable for trying certain enemy belligerents. Therefore, Congress crafted a separate-scheme under which they would be tried and potentially convicted. Longstanding historical practice supports trying such enemy belligerents by military commission, see, e.g., Quirin,
Crucially, while the scheme Congress created in the MCA incorporates Article III review, it also delays it until a specific point. Before an Article III appellate court may step in, a defendant must first be tried and convicted in the military system,
We are particularly confident that Congress did not intend to allow a defendant to halt the workings of a military commission by challenging in federal court an issue that could just as easily be considered by the commission and reviewed by a federal appellate court: the commission’s own subject matter jurisdiction. The structure of the MCA makes this clear. For starters, the MCA explicitly empowers military commissions to make findings sufficient to determine their own jurisdiction, see 10 U.S.C. § 948d, and permits a presiding military judge to “hear[] and determine motions raising defenses or objections which are capable of determination without trial of the issues” bearing on guilt or innocence, id. § 949d. These provisions suggest “[b]y implication” that jurisdictional challenges are not ordinarily to be raised pretrial in district court. Deaver,
Moreover, a military judge’s order denying a motion to dismiss charges on jurisdictional grounds cannot be appealed to us until after final judgment. See Khadr v. United States,
Heeding the political branches’ instruction as to the timing of Article III review qualifies as an “important countervailing interest” warranting abstention, at least where that instruction is based on those branches’ assessment of national security needs. In the realm of national security, the expertise of the political branches is at its apogee. See Hamdi v. Rumsfeld,
Al-Nashiri and amici raise several counterarguments, asserting that the interests supporting abstention in the military-commission context are less significant than those in the court-martial context. Al-Nashiri contends initially that Councilman does not apply because he is not a service member; and, as the dissent likewise points out, concerns of military discipline are therefore inapplicable. True enough. But nothing in the Supreme Court’s case law requires the interests justifying the district court’s decision to be identical to those in Councilman-, it is enough that they are “equally compelling.” Councilman,
To be sure, the Court in Hamdan did not consider interests other than military discipline in determining that it would hear the habeas petition before it. It noted simply that Hamdan was not a member of the Armed Forces, and that concerns of military discipline therefore did not apply. But the Court did not hold that abstention is appropriate only where concerns of military discipline are present. To the contrary, it left open the possibility that some other “important countervailing interest” might justify abstention in a future case. Hamdan,
Al-Nashiri and amici further assert that abstention applies only to court systems that are wholly separate from the federal judicial establishment. They note that decisions of courts-martial and state courts are not directly reviewed by federal courts; moreover, these alternative judicial systems have a long history of operating undisturbed by federal intervention. Therefore, they argue, while the Court in Councilman was concerned with Article III courts intruding where they as a whole had no place, no similar concern is at play here, where Congress built Article III
Our role in reviewing military-commission convictions does, of course, distinguish the MCA’s review structure from that of state courts and courts-martial. But this distinction points away from pretrial intervention rather than toward it. For starters, while courts often invoke the term “comity” to refer to respect for separate judicial systems such as state courts, the term is more capacious than that. As we have explained, we have invoked inter-branch comity to avoid exercising our equitable discretion to interfere with the prerogatives of coordinate branches of government. Comity can also justify a district court’s discretionary decision to “transfer, stay, or dismiss a case that is duplicative of a case filed in another federal [district] court,” even though both courts are part of the same judicial system. Federal-Comity Doctrine, Black’s Law DictionaRY (10th ed. 2014); see, e.g., Pacesetter Sys., Inc. v. Medtronic, Inc.,
Moreover, the eventual involvement of an Article III appellate court lessens the need for immediate intervention because an Article III court can remedy any errors on appeal. Indeed, before cases like Younger and Councilman, the traditional rule that equity should not interfere with a criminal prosecution generally applied only to cases in which a defendant had an adequate non-equitable remedy in a federal court. See Trainor v. Hernandez,
Al-Nashiri and the dissent also contend that the military possesses no special expertise in addressing questions related to the laws of war. Thus, both argue, while part- of the reason for abstaining in Councilman was to defer to the military’s expertise in handling criminal matters connected to military service, no similar interest exists here. We are not convinced. For one thing, Councilman set out a rule that applies broadly — even to those claims that implicate military expertise to a lesser degree. See Solorio,
As in Councilman, then, an important countervailing interest supported the dis
B
Having determined that the district court applied the proper legal standard when it decided that it could abstain in favor of ongoing military-commission proceedings, we next examine whether .its ultimate decision to abstain was appropriate, in light of any features unique to Al-Nashi-ri’s case. Al-Nashiri advances three arguments for why abstention was inappropriate here; none has merit.
i
The Supreme Court has instructed that federal courts can intervene in ongoing criminal proceedings in a few narrow and limited circumstances. In particular, a federal court may intervene where a plaintiff shows that “extraordinary circumstances” both present the threat of “great and immediate” injury and render the alternative tribunal “incapable of fairly and fully adjudicating the federal issues before it.” Kugler v. Helfant,
Al-Nashiri’s argument is foreclosed by the Supreme Court’s definition of what constitutes “great, immediate, and irreparable” injury justifying a federal court’s intervention in ongoing criminal proceedings. Moore v. Sims,
Moreover, even setting this clear proscription aside, the dissent’s argument that Al-Nashiri’s case could qualify for the “extraordinary circumstances” exception is unavailing. Focusing on the word “extraordinary,” the dissent makes a sympathetic ease that Al-Nashiri’s harms are different in both kind and magnitude from those that he would experience in a federal court or from the harms experienced by the average criminal defendant. But that alone does not bring those harms under the limited and narrow meaning of the exception. Although the dissent may be correct that Councilman itself had “no occasion to attempt to define those circumstances” that might be sufficiently extraordinary to warrant abstention,
The dissent responds that we need not feel bound by this precedent because Al-Nashiri’s case is different. The cases defining the “extraordinary circumstances” exception arose in the context of Younger abstention, not abstention in favor of courts-martial or military commissions, and therefore, the dissent contends, the definition of extraordinary circumstances articulated in the Younger cases does not apply in the military context.
Before moving on to Al-Nashiri’s other arguments, we again emphasize that Al-Nashiri’s sole claim in this appeal relates to whether the district court erred in declining to hear his challenge to the military commission’s subject matter jurisdiction. Al-Nashiri does not argue that Congress exceeded its constitutional authority in creating the military-commission system under the MCA or in defining “alien unprivileged enemy belligerent” in a manner that includes him. Nor, to repeat, does he contend that any procedures of the system Congress created in the MCA are unconstitutional or will prevent him from fully litigating his jurisdictional defense. He also makes no claim that delaying habeas review in his case amounts to an unlawful suspension of the writ. This is perhaps because the 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.” Gusik v. Schilder,
ii
Al-Nashiri next argues that post-trial Article III review will come too late'to vindicate his constitutional and statutory “right not to be tried” by a military commission that lacks subject matter jurisdiction over his offenses. See Councilman,
In support, he points to the text of the 2009 MCA, which provides that an offense “is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” 10 U.S.C. § 950p(c) (emphasis added). He asserts that the use of the word “triable” instead of “punishable” or “liable” suggests that Congress conferred a right not to be tried by a military commission at all, rather than merely a right not to be subject to a binding judgment by a commission. We understand his constitutional claim to assert something similar: the military commission has jurisdiction under Article I to try only war crimes, which by definition must have a nexus to hostilities. Whether Al-Nashiri locates his alleged right not to be tried in the MCA or the Constitution, the crux of this “right” is that Al-Nashiri is entitled to an initial determination in an Article III court of whether his military commission has jurisdiction over his offense. We disagree.
Some statutory and constitutional provisions indeed provide express guarantees that trial will not occur. In such cases, trial itself creates an injury that cannot be remedied on appeal. But only a handful of such guarantees have been recognized. The key question, then, is whether there is any express statutory or constitutional language that gives Al-Nashiri a right not to be tried, instead of simply a right not to be subject to a binding judgment, should his alleged crimes have taken place outside the context of hostilities. As the Supreme Court has explained it:
There is a crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges. A right not to be tried ... rests upon an explicit statutory or constitutional guarantee that trial will not occur- — as in the Double Jeopardy Clause (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”), or the Speech or Debate Clause (“[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place”).
Midland Asphalt Corp. v. United States,
Particularly instructive is our opinion in Khadr. There, we held that an erroneous jurisdictional ruling against a defendant in the military-commission system can be adequately remedied on appeal from final judgment, despite statutory language in the MCA that might suggest a defendant was not triable by military commission. Khadr,
This court rejected the defendant’s petition, explaining that the CMCR’s “procedural decision, as well as any subsequent jurisdictional decision, will be reviewable if necessary following a final judgment.” Id. at 1118 (emphasis added). We explained that “the denial of a claim of lack of jurisdiction is not an immediately ap-pealable collateral order” as the jurisdictional provisions at issue created a “right not to be subject to a binding judgment,” not a right to be free from trial altogether. Id. (quoting Van Cauwenberghe v. Biard,
Our conclusion holds even if the military commission lacks subject matter jurisdiction not simply under the MCA, but instead under the Constitution. This much is apparent from Councilman. There, Councilman argued that his alleged offense was not constitutionally triable by court-martial because it was not “service connected.” Councilman,
Al-Nashiri nevertheless gleans the existence of a constitutional “right not to be tried” from two cases in which the Supreme Court enjoined pending military trials: Reid v. Covert,
Instead, taking Hamdan first, Al-Nashi-ri observes that according to a plurality of the Justices, “deficiencies in the time and place allegations” against Hamdan signaled that the “offense [alleged] is not triable by law-of-war military commission.” Pet’r’s Br. 45 (quoting Hamdan,
Al-Nashiri is correct, however, that Reid and similar cases suggest abstention is inappropriate where individuals raise “substantial arguments denying the right of the military to try them at all,” arid “the legal challenge turns on the status of the persons as to whom the military asserted its power” — that is, where “there is a substantial question whether a military tribunal has personal jurisdiction over the defendant.” Hamdan,
Whatever the precise scope of this exception to abstention, it does not require that Al-Nashiri’s jurisdictional challenge first be heard by an Article III court. We do not understand Al-Nashiri to challenge his status as an alien unprivileged enemy belligerent who is subject to detention and to trial by military commission for certain types of conduct. Instead, he argues that the nature of his alleged offenses is such that the military lacks the authority to try them. His claim is therefore similar to that presented in Councilman, where the defendant did not challenge his status as a service member, but instead argued that the military could not try his offenses because they were not connected to his service in the Army. See
We recognize that our court’s opinion in Hamdan spoke of the status exception in broad terms. See Hamdan v. Rumsfeld,
iii
Al-Nashiri also contends that intervention is required because his military-commission proceedings have been unreasonably delayed. He points to, the provision of the MCA that eliminates the UCMJ’s speedy trial guarantee, see 10 U.S.C. § 948b(d)(A), and notes that the government’s interlocutory 'appeals before the CMCR — and, as a result, his trial before the military commission — were stayed for nearly a year pending the confirmation of military judges to the CMCR. Al-Nashiri estimated in his briefing that trial will not commence until 2018 at the earliest. The government did not challenge this estimate at oral argument. Now that the CMCR’s stay has been lifted, the government has informed us that military-commission proceedings will resume in September 2016. Al-Nashiri’s counsel further estimated in rebuttal at oral argument that appellate review in this court will not occur until 2024. He provided no information, however, to explain why so much time would pass between trial and appeal.
To be clear, we are troubled by the estimate of Al-Nashiri’s counsel that appellate review in this court might not occur until 2024. But counsel offered this prediction for the first time during rebuttal at oral argument, providing no information on the cause of this anticipated lag between trial and appeal to our court, and no opportunity for the government to respond. We are therefore not prepared at this juncture to forecast that any such delay will occur or be excessive as a matter of law. Should an unreasonable delay materialize, Al-Nashiri may pursue available remedies at that time.
Relatedly, Al-Nashiri suggests that where it is “plain” that the law of war does not apply, a district court should not abstain from adjudicating a military-commission defendant’s pretrial challenge, because requiring the defendant to first proceed through the military system “would serve no purpose other than delay.” Reply Br. 25 (quoting Strate v. A-1 Contractors,
Moreover, because the district court did not err in abstaining, we reject Al-Nashi-ri’s arguments that the court was obligated to rule on the merits of his petition for preliminary injunctive relief and that it abused its discretion by issuing a stay that mooted the request for injunctive relief. Abstention permits a court to decline to reach the merits of a petitioner’s claim. “It would be illogical for a federal court to preliminarily enjoin a [parallel] court proceeding when it [will] abstain from reviewing [that] proceeding altogether.” Phelps v. Hamilton,
Ill
We turn finally to Al-Nashiri’s mandamus petition. As we emphasized in
According to Al-Nashiri, it is “clear and indisputable” that his conduct did not take place in the context of hostilities, and therefore that he is entitled to mandamus relief. He contends that hostilities exist only when the political, branches say so in a “contemporaneous public act”; the existence of hostilities cannot be determined after the fact. And in his view, no contemporaneous public act established that hostilities existed either before September 11, 2001, or in Yemen, where his alleged offenses took place.
In fact, Al-Nashiri asserts, public acts at the time of his offenses suggested that America was at peace. He points to the President’s public statement, in response to the Cole bombing, that the nation was not at war. And while the President reported to Congress under the War Powers Resolution that he had introduced forces “equipped for combat” into Yemen after the Cole attack, he did not report that he had introduced forces “into hostilities.” Compare 50 U.S.C. § 1543(a)(1) (requiring the President to provide a written report to Congress if he introduces troops “into hostilities”), with id. § 1543(a)(3) (same if he introduces troops “in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation”). Further, the Federal Bureau of Investigation led the investigation of the Cole bombing, treating it as a crime scene rather than a combat zone. In Al-Nashiri’s view, these facts suggest that' the President did not believe “hostilities” existed around the time of the Cole bombing.
The government responds that the existence of hostilities is established by looking not merely to the contemporaneous acts of the political branches, but to a totality of the circumstances, including al Qaeda’s conduct. Implicit in this argument is the notion that the existence of hostilities can be assessed after the fact, at trial. Applying this totality-of-the-circumstanees standard, the government argues that the Cole attack was part of al Qaeda’s larger strategy to wage war against the United States, which culminated in the attacks of September 11. It notes that al Qaeda publicly declared jihad against the United States in 1996 and attacked the U.S. embassies in Kenya and Tanzania in 1998, and that after these bombings, the President ordered, missile strikes on al Qaeda training camps in Afghanistan and a chemical weapons facility in Sudan, and invoked the right to self-defense undér the United Nations Charter. The government also points to the MCA, which authorizes military commission jurisdiction for conduct occurring “before, on, or after” September 11, 2001. See 10 U.S.C. § 948d. To the government, this language suggests that Congress believed hostilities existed before September 11, even if no public act was taken until the passage of the AUMF on September-14, 2001.
Whatever the answers to these questions, they are not clear and indisputable, as the Supreme Court’s opinions in Ham-dan make clear. There, a four-justice plurality suggested that the conflict against al Qaeda began only after September 11, 2001, and the enactment of the AUMF. Hamdan v. Rumsfeld,
By contrast, in a dissent for three members of the Court, Justice Thomas argued that the judiciary cannot “second-guess” the Executive Branch’s view' expressed in its charging documents that an accused acted within the context of an armed conflict. Id. at 684,
The debate in Hamdan indicates that whether hostilities against al Qaeda existed at the time of Al-Nashiri’s alleged offenses, and whether Al-Nashiri’s conduct in Yemen took place in the context of those hostilities, are open questions. And open questions are “the antithesis of the ‘clear and indisputable’ right needed for mandamus relief.” Al-Nashiri,
The authority Al-Nashiri cites does not clear up this uncertainty. He points to cases emphasizing that the determination of when hostilities end is left to the political branches. See Ludecke v. Watkins,
Because Al-Nashiri cannot show that his conduct clearly and indisputably took place outside the context of hostilities, we deny his petition for mandamus relief.
IV
We deny Al-Nashiri’s petition for a writ of mandamus and affirm the district court’s denial of his motion for a preliminary injunction.
Notes
. We need not weigh in on whether the district court had subject matter jurisdiction to adjudicate Al-Nashiri's motion for preliminary injunctive relief. Although the government suggests in its briefing before us that Al-Nashiri’s claim does not sound in habeas — a claim that calls into question the district court's statutory jurisdiction, see 28 U.S.C. § 2241 (e)(2) — we affirm the denial of that motion for reasons we explain below. Because the motion was properly denied on threshold grounds, we need not consider the district court's subject matter jurisdiction any further. See Sinochem Int'l Co. v. Malay. Int’l Shipping Corp.,
. Finality principles would normally prevent us from reviewing a decision to stay a case. But when the denial of a preliminary injunction — which is a reviewable final judgment, see 28 U.S.C. § 1292(a)(1) — is based on the decision to stay a case, we can review the propriety of the stay. See Privitera v. Cal. Bd. of Med. Quality Assurance,
. As an initial matter, we note that Al-Nashiri and the government disagree about the role that the hostilities requirement plays in the MCA. Al-Nashiri argues that the existence of hostilities is a.legal question that does not hinge on the facts proved at trial. For its part, the government contends that the hostilities requirement is a “necessary element of the offense with which he has been charged” that the government must prove at trial. We assume Al-Nashiri is correct that the hostilities requirement is a legal question going to the commission’s subject matter jurisdiction. Even so, as we will explain, the district court did not err in permitting the military commission to resolve the question in the first instance.
. Although the Court in Councilman assumed that the alternative judicial system at issue would adequately protect defendants' rights, we doubt that it would have reached the same result if the plaintiff had identified flaws in that system that would prevent him from fully litigating his defenses. Indeed, case law indicates that abstention is appropriate only where a plaintiff has "a full and fair opportunity to litigate” his claims in the alternative forum. JMM Corp. v. District of Columbia,
. Habeas corpus "is, at its core, an equitable remedy,” Schlup v. Delo,
. By holding that an important countervailing interest justified the decision to abstain in this case, we do not suggest that a district court may always abstain from exercising its equitable jurisdiction simply because it perceives that some important' interest would be advanced by staying its hand. As the Supreme Court has made clear, abstention is appropriate outside the criminal context only in certain enumerated circumstances. See Sprint Commc'ns, Inc. v. Jacobs, — U.S.-,
. According to the dissent, Councilmans exception to abstention for "personal jurisdiction” challenges shows that we may consider other factors that the Supreme Court has not yet identified. But it is not clear that Councilman’s "personal jurisdiction” exception is unique to courts-martial, as the dissent suggests. Councilman grounded that exception in a right not to be tried, see
. We take no stance on whether abstention could amount to a suspension of the writ, as this issue is not properly before us. But we observe that federal courts routinely decline to allow claims that can be raised in pretrial motions and addressed on direct appeal to instead be raised via pretrial habeas petition, whether trial is set to take place in federal court, state court, or a court-martial. See, e.g., Henry v. Henkel,
. The Hamdan dissent's suggestion that courts cannot question the Executive’s charging documents also puts to rest AI-Nashiri's argument that the military judge acted in a clearly unlawful manner when it denied Al-Nashiri’s motion to dismiss by, in part, deferring to the Executive Branch’s determination that Al-Nashiri’s conduct occurred in the context of hostilities. "Even if we ultimately agreed with [A]l-Nashiri on the merits," the military judge’s decision was not clearly and indisputably erroneous. Al-Nashiri,
Dissenting Opinion
dissenting:
Since July 2011, Abd Al-Rahim Hussein Muhammed Al-Nashiri has repeatedly sought to challenge the government’s authority to try him in a military commission. In his view, none of the offenses with which he is charged occurred in the context of an armed conflict and thus none is triable outside of a civilian court. In one of his latest attempts to raise the issue, Al-Nashiri petitioned the district court for a writ of habeas corpus. That court ultimately concluded that it was required to stay its hand under Schlesinger v. Councilman,
Whether Councilman’s abstention doctrine should be extended to the military commission context to postpone consideration of a Guantanamo detainee’s habeas claim presents a difficult question. In his opinion for the court, Judge Griffith makes a strong case that, as a matter of inter-branch comity, federal courts should respect Congress’s judgment that Article III review of military commission decisions generally occurs only after the military proceedings have run their course — that is, only after final convictions are rendered and affirmed by military authorities. In my view, however, material differences between criminal prosecutions of non-service-members in military commissions and criminal prosecutions of servicemembers in courts-martial lessen the force of the comity and practical considerations that lie at the heart of cases like Councilman, thus significantly undermining the case for abstention.
For instance, one of the primary considerations' — perhaps the primary consideration — -underlying Councilman’s abstention doctrine is the importance of avoiding judicial interference in the military’s unique relationship with its servicemem-bers, which rests on laws and traditions having no counterpart in civilian life and in which the military has singularly relevant expertise. See id. at 757, 759-60,
Significant structural differences between the. military commission system at issue here and the court-martial system at issue in Councilman further tilt the scales against abstention. For example, in contrast to the court-martial system at issue in Councilman, which has existed since 1950 and which is used in both times of war and times of peace, the present military commission system is temporary and may be utilized only so long as necessary to try those who commit law-of-war offenses during the United States’ current conflict with al Qaeda and its associated forces, see Hamdan v. Rumsfeld,
There are, moreover, strong countervailing reasons for giving habeas claims related to military commissions prompt consideration. Most notably, as the last decade and a half has demonstrated, there is little jurisprudence regarding military commissions and their authority. See, e.g., Order, Al Bahlul v. United States, No. 11-1324 (D.C. Cir. Sept. 25, 2015) (granting rehearing en banc to consider, inter alia, whether the Constitution’s Define and Punish Clause empowers Congress to define inchoate conspiracy as a law-of-war offense subject to trial by military commission); Al Bahlul v. United States,
But even if Councilman-like abstention applies as a general matter to postpone federal courts’ exercise of habeas jurisdiction where it would interfere with active
Significantly, in Councilman — the abstention decision most analogous to this case — the Supreme Court held only that district courts must refrain from exercising their equitable powers to intervene in pending court-martial proceedings when the petitioner is “threatened with no injury other than that incidental to every criminal proceeding brought lawfully and in good faith” — that is, where a petitioner is threatened with nothing more than the usual “cost, anxiety, and inconvenience of having to defend against a single criminal prosecution.” Councilman,
Here, it appears that extraordinary and unusual circumstances may well outweigh whatever equity and inter-branch comity principles might otherwise justify Councilman-like abstention. In petitioning for pretrial review of the military commission’s authority to try him, Al-Nashiri alleges that the government subjected him 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 will be exacerbated — perhaps permanently — by the government’s prosecution of him in a military commission. If there is merit to these allegations, the harms he will suffer are truly extraordinary and are a far cry from the ordinary burdens — even serious ones — that individuals endure in the course of defending against criminal prosecutions.
According to the unclassified version of Al-Nashiri’s brief, local authorities in the United Arab Emirates seized him in October 2002 and transferred him to United States custody. Pet’r’s Br. 5. The CIA then detained him at secret locations, commonly referred to as black sites, as part of its “newly-formed Rendition, Detention, and Interrogation (‘RDI’) Program.” Id. Al-Nashiri asserts that this program employed extreme interrogation tactics with the hopes of inducing “learned helplessness” among the detainees. Id. Dr. Sondra S. Crosby, a Department of Defense-appointed expert and a board-certified physician who specializes in treating victims of torture, explains that “learned helplessness” is a concept first introduced in the 1960s by experimental psychologist Dr. Martin Seligman. Crosby Deck ¶ 11. Selig-man’s work, which “consisted of restraining dogs and subjecting them to random and repeated electric shocks,” found that “[djogs that could not control or influence their'suffering in any way ‘learned’ to become helpless, collapsing into a state of passivity.” Id. According to Al-Nashiri, the CIA’s RDI program sought to induce
Describing his treatment at the hands of the CIA from 2002 to 2006, Al-Nashiri, in the unclassified version of his brief, which I quote at length, asserts the following:
The first records of Al-Nashiri[’s] treatment [redacted]. He was not allowed to sleep, was regularly beaten, and hung by his hands. After a month, he was transferred to CIA custody and taken to a location codenamed COBALT. In transit to COBALT, ice was put down his shirt. This appears to have been done as part of a broader policy of using transportation between black sites to induce anxiety and helplessness.
Virtually no documentation of Al-Nashiri’s time at COBALT exists. Certain facts can be ascertained from then-prevailing standard operating procedures. The chief of interrogations described COBALT as “good for interrogations because it is the closest thing he has seen to a dungeon, facilitating the displacement of detainee expectations.” COBALT operated in total darkness and the guard staff wore headlamps. [Redacted]. Detainees were subjected to loud continuous noise, isolation, and dietary manipulation.
According to one CIA interrogator, detainees at COBALT “[‘]literally looked like [dogs] that had been kenneled.’ When the doors to their cells were opened, ‘they cowered.’ ” At COBALT, [redacted]. Detainees were fed on an alternating schedule of one meal on one day and two meals the next day. They were kept naked, shackled to the wall, and given buckets for their waste. On one occasion, Al-Nashiri was forced to keep his hands on the wall and not given food for three days. To induce sleep deprivation, detainees were shackled to a bar on the ceiling, forcing them to stand with their arms above their heads. [Redacted].
[Redacted] use of improvised interrogation methods, such as water dousing, wherein a detainee was doused with cold water and rolled into a carpet, which would then be soaked with water in order to induce suffocation.
[Redacted].
[Redacted] Al-Nashiri was kept continually naked and the temperature was kept, in his words, “cold as ice cream.” [Redacted].
The documentation of conditions at [redacted] lacks specificity. Most summaries of interrogation^] say simply [redacted]. There is no question, however, that Al-Nashiri was “waterboarded” at GREEN. This entailed being tied to a slanted table, with his feet elevated. A rag was then placed over his forehead and eyes, and water poured into his mouth and nose, inducing choking and water aspiration. The rag was then lowered, suffocating him with water still in his throat and sinuses. Eventually, the rag was lifted, allowing him to “take 3-4 breaths” before the process was repeated.
[Redacted]
After interrogators questioned Al-Nashiri’s intelligence value, CIA Headquarters sent an untrained, unqualified, uncertified, and unapproved officer to be Al-Nashiri’s new interrogator at BLUE. [Redacted]. Al-Nashiri was kept continually hooded, shackled, and naked. He was regularly strung up on the wall overnight. Al-Nashiri was regularly forced into “stress positions” prompting a Physician’s Assistant to express con*142 cern that Al-Nashiri’s arms might be dislocated.
While prone, this [redacted] interrogator menaced Al-Nashiri with a handgun. The interrogator racked the handgun “once or twice” close to Al-Nashiri’s head. [Redacted].
The [redacted] interrogator also threatened to “get your mother in here,” in an Arabic dialect implying he was from a country where it was common to rape family members in front detainees [sic], [Redacted]. These threats were coupled with “forced bathing” with a wire brush to abrade the skin, [redacted]. There is also evidence Al-Nashiri was, in fact, forcibly sodomized, possibly under the pretext of a cavity search that was done with “excessive force.”
Id. at 9-19 (internal citations and footnote omitted).
In his unclassified brief, Al-Nashiri further claims that at one point
[t]he CIA’s Chief of Interrogations, a person whose presence had previously caused Al-Nashiri to tremble in fear, threatened to resign if further torture was ordered. He wrote that torturing Al-Nashiri is “a train wreak [sic] waiting to happen and I intend to get the hell off the train before it happens.” He then wrote a cable to be “entered for the record” that “we have serious reservations with the continued use of enhanced techniques with [Al-Nashiri] and its long term impact on him. [Al-Nashiri] has been held for three months in very difficult conditions, both physically and mentally. ... [Al-Nashiri] has been mainly truthful and is not withholding significant information. To continue to use enhanced technique[s] without clear indications that he [is] withholding important info is excessive.... Also both C/CTC/RG and HVT interrogator who departed [BLUE] in [REDACTED] January, believe continued enhanced methods may push [al-Nashiri] over the edge psychologically.” Headquarters ordered Al-Nashiri to be tortured further.
Id. at 20 (internal citations omitted) (alterations in original).
According to Al-Nashiri, several years after he was detained as part of the RDI program, the government requested that a competency board evaluate him. “Two psychologists and one psychiatrist conducted interviews with [him] and reviewed numerous documents including summaries of his interrogations, medical assessment notes, and psychological assessment notes from 2002 through 2006.” Id. at 6. They concluded that he suffers from posttraumatic stress disorder (PTSD) and major depressive disorder. Id. at 7.
Al-Nashiri claims that these conditions are “the result — intended result — of the government’s deliberate, years-long campaign to coerce [him] into a state of ‘learned helplessness.’ ” Id. at 9. He further claims that a military trial will greatly aggravate these conditions, with potentially permanent consequences for his mental and physical health. In support, he offers the declaration of his DoD-appointed expert, Dr. Crosby. Based on her examinations of Al-Nashiri, Dr. Crosby believes that he “suffers from complex posttrau-matic stress disorder as a result of extreme physical, psychological, and sexual torture inflicted upon him by the United States.” Crosby Deck ¶¶7, 12. She concludes that the CIA “succeeded in inducing ‘learned helplessness’ ” and that Al-Nashiri is “most likely irreversibly damaged by torture.” Id. Indeed, she writes that in her “many years of experience treating torture victims from around the world,” Al-Nashiri “presents as one of the most severely traumatized individuals [she] ha[s] ever seen.” Id.
Dr. Crosby further believes that, “[a]t present, the military trial process is a principal driver of this instability” and Al-Nashiri’s condition. Id. ¶ 22. She states, for example, that “the ad hoc character of the proceedings,” in which the government seeks to impose death, causes Al-Nashiri “profound anxiety,” id. ¶ 23, and that the “lack of continuity of [his] defense team” due to military personnel rules undermines his ability to build trusting relationships with his attorneys, id. ¶ 24.
While recognizing that a capital trial in any tribunal would be stressful, Dr. Crosby states that her understanding of “the more predictable procedures of federal confinement and trials causes [her] to believe that the contemplated military trial is stressful on a different order of magnitude and, given ... Al-Nashiri’s situation and fragile psychological state induced by torture, exponentially more harmful.” Id. ¶26. She has “serious doubts” about his ability to “remain physically and mentally capable of handling the physical and emotional stress of the military trial process,” and she “fear[s]” that, if forced to undergo a military trial, Al-Nashiri “will eventually decompensate” with “permanently disabling effect[s] on his personality and his capacity to cooperate meaningfully with his attorneys.” Id. ¶ 27.
In its responsive brief, the government contests neither Al-Nashiri’s allegations regarding his past treatment nor the potential consequences of a capital trial in a military commission. Instead, the government insists that those allegations are irrelevant because the burdens attendant to defending against criminal prosecutions are insufficient to overcome the equity and inter-branch comity principles that justify abstention in cases like Councilman. See Resp’t’s Br. 61. But as noted above, Councilman held only that the ordinary burdens of defending against criminal prosecutions, however serious, are insufficient to outweigh such considerations. If there is merit to Al-Nashiri’s allegations regarding his treatment and to Dr. Crosby’s assessment of his current condition and the consequences of proceeding with a military trial, then Al-Nashiri is threatened with far more than the harms “incidental to every criminal proceeding brought lawfully and in good faith.” Councilman,
The district court, in invoking Councilman’s, abstention doctrine, failed to address whether Al-Nashiri’s potential harms involve the kind of extraordinary circumstances that could warrant federal court intervention in pending military commission cases. In an alternative ruling on Al-Nashiri’s motion for a preliminary injunction, the district court did state that Al-Nashiri failed to show the sort of irreparable injury necessary to obtain injunctive relief. Al-Nashiri v. Obama,
In my view, the district court erred in concluding that the types of harms Al-Nashiri asserts are governed by the general rule that federal courts must decline to exercise their equitable powers when individuals face no harms other than those ordinarily involved in defending against criminal prosecutions. Al-Nashiri asserts potential injuries different in both degree and kind from those normally sustained in the course of criminal proceedings. Cf. McLucas v. DeChamplain,
The court dismisses these circumstances as insufficient. Drawing upon cases applying the Younger abstention doctrine, which requires that courts generally refrain from exercising jurisdiction where doing so would interfere with state proceedings im
As an initial matter, I am skeptical that even in the context of Younger abstention, Al-Nashiri’s circumstances could not qualify as the sort of extraordinary circumstances that could outweigh the equity, comity, and federalism principles generally dictating abstention. Although some statements from the Younger line of cases may be read to limit Younger1 s “extraordinary circumstances” exception to situations in which state tribunals cannot be expected to fairly and fully adjudicate litigants’ claims for reasons such as bias and bad faith, see Kugler,
But putting those doubts aside, I am unpersuaded that we must apply the same sort of “extraordinary circumstances” exception as that developed in the Younger line of cases. Contrary to the court’s suggestion, there is no single rule of abstention, with a single “extraordinary circumstances” exception. See Majority Op. at 128-29. Instead, drawing upon similar but distinct principles, the Supreme Court has developed a variety of abstention doctrines that seek to address, in the ordinary case, the appropriate balance between individual interests in federal court adjudication and considerations of equity and comity. In Younger, for instance, the Supreme Court held that absent bad faith, harassment, enforcement of a patently unconstitutional statute, or other “unusual” circumstances, considerations of equity, comity, and federalism demand abstention in cases related to certain state proceedings. See, e.g., Kugler,
Importantly, each of these abstention doctrines balanced different considerations. That much is evident from the fact that Councilman abstention includes an exception that Younger does not — specifically, for challenges to a court-martial’s personal jurisdiction over a litigant. See Councilman,
Because the Supreme Court’s abstention doctrines involve distinct balancing calculations, I am unconvinced'that any limits the Court may have imposed on the sorts of “extraordinary circumstances” that can outweigh the justifications for abstention in cases related to ongoing state proceedings necessarily apply in cases involving Councilman abstention. No decision compels that view. And I certainly do not believe that those conclusions are disposi-tive regarding the sorts of circumstances
Here, we are not confronted with a separate sovereign seeking to vindicate important interests as it sees fit. Instead, we are faced with the federal executive branch’s assertion that it should get the first crack at deciding Al-Nashiri’s substantial constitutional and statutory challenges to a military commission’s authority to try him even though Al-Nashiri may, because of the executive branch’s past actions, suffer severe and permanent injuries from the exercise of its jurisdiction. Further, the military commission has concluded that it will not fully determine its own jurisdiction, in the first instance, until trial. By the time Al-Nashiri has an opportunity for meaningful judicial review, the extraordinary injuries may well have occurred.
When the notions of equity and inter-branch comity articulated by the court are considered against Al-Nashiri’s unusual and extraordinary allegations of harm, as well as the long-established principle that it is the judiciary’s duty to ultimately say what the law is, see Zivotofsky,