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Al-Baluchi v. Esper

United States District Court, District of Columbia

July 29, 2019

AMMAR AL-BALUCHI a/k/a Ali Abdul Aziz Ali, Petitioner,
MARK T. ESPER, Secretary of Defense, et al., Respondents.



         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 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 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 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 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]

         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 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.


         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)).

         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 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 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 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 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 ...

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