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Al-Nashiri v. Obama

United States District Court, D. Columbia.

December 29, 2014

ABD AL-RAHIM HUSSAIN MOHAMMED AL-NASHIRI, Petitioner,
v.
BARACK OBAMA, et al., Respondents

Page 219

For ABD AL-RAHIM HUSSAIN MOHAMMED AL-NASHIRI, Petitioner: Paul G. Turner, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER, Las Vegas, NV.

For BARACK HUSSEIN OBAMA, II, President of the United States, Defendant: Andrew I. Warden, LEAD ATTORNEY, Terry Marcus Henry, Kristina Ann Wolfe, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, DC; Julia A. Berman, Ronald James Wiltsie, LEAD ATTORNEYS, Jonathan S. Needle, Kathryn Celia Davis, Patrick D. Davis, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Jean Lin, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

For RICHARD B. CHENEY, Vice President of the United States, CONDELEEZA RICE, Secretary of State of the United States, MICHAEL V. HAYDEN, Director, Central Intelligence Agency, Respondents: Ronald James Wiltsie, LEAD ATTORNEY, Jonathan S. Needle, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Jean Lin, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Kristina Ann Wolfe, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, DC.

For GEORGE TENET, DONALD RUMSFELD, DAVID M. THOMAS, Navy Rear Admiral, Commander, Joint Task Force - GTMO, BRUCE VARGO, Army Col., Commander, Joint Detention Operations Group-JTF-GTMO, Respondents: Judry Laeb Subar, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Ronald James Wiltsie, LEAD ATTORNEY, Jonathan S. Needle, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Jean Lin, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Kristina Ann Wolfe, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, DC.

For ROBERT M. GATES, Secretary of Defense of the United States, Respondent: Judry Laeb Subar, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Ronald James Wiltsie, LEAD ATTORNEY, Jonathan S. Needle, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Andrew I. Warden, Kristina Ann Wolfe, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, DC; Jean Lin, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

For JOHN DOE, et al., persons acting under actual or apparent authority, or color of law, of foreign nations, Respondent: Judry Laeb Subar, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Julia A. Berman, Ronald James Wiltsie, LEAD ATTORNEYS, Kathryn Celia Davis, Patrick D. Davis, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Jean Lin, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Kristina Ann Wolfe, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, DC.

Page 220

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, Chief Judge.

Guantá namo detainee Abd Al Rahim Hussayn Muhammad Al Nashiri submitted an amended petition[1] seeking a writ of habeas corpus, arguing that the respondents' attempts to try him by military commission would exceed the limits imposed by Congress and the Constitution on the military's authority to act in lieu of courts of law because none of the crimes alleged against Al Nashiri occurred in the context of a recognized war. Al Nashiri moves for a preliminary injunction preventing the respondents from trying him by military commission before the merits of his habeas petition are decided. The respondents oppose Al Nashiri's motion, and move to hold his habeas petition in abeyance during the duration of his military commission trial. Because traditional principles of comity and judicial economy support abstaining from exercising equitable jurisdiction over Al Nashiri's habeas petition during the pendency of his military commission trial, the respondents' motion to hold in abeyance will be granted, and Al Nashiri's motion for a preliminary injunction will be denied.

BACKGROUND

Al Nashiri is a Saudi national who was seized in October 2002 by local authorities in the United Arab Emirates. Petr.'s Supp. Pet. for Habeas (" Petr.'s Supp. Pet." ) ¶ ¶ 5, 13. He was eventually taken into the custody of the Central Intelligence Agency (" CIA" ) in 2002. Id. ¶ 13. In May 2003, while Al Nashiri was in CIA custody, the United States named him as an unindicted co-conspirator in a criminal indictment in the Southern District of New York. That indictment alleges that he was part of a terrorist group in Yemen that conspired to bomb marine vessels, including the U.S.S. Cole and U.S.S. The Sullivans. In September 2006, Al Nashiri was publicly transferred to the U.S. Naval Station at Guantanamo Bay. Id. In December 2008, a Department of Defense civil servant referred to as the " Convening Authority," [2] drafted eight charges against Al Nashiri for trial by military commission in February 2009 under the version of the Military Commissions Act in force at the time. In January 2009, however, President Obama issued an executive order to review the military commission system in Guantanamo, and the charges filed in December 2008 were withdrawn without prejudice in January 2009. Id. ¶ 14.

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


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