United States District Court, District of Columbia
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE.
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”). 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. The habeas corpus proceedings in this
Court will be stayed pending completion of the military
commissions trial and appeal.
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].
Allegations and Detention
al-Baluchi is a Pakistani national detained at the United
States Naval Base in Guantanamo Bay, Cuba
(“Guantanamo”). The United States is prosecuting
Mr. al-Baluchi before a military commission for his alleged
role in financing the terrorist attacks of September 11,
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.
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.
The Military Commission
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
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. 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
The Habeas Corpus Proceedings and the Instant Motions
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.
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. 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.
Principles of Councilman Abstention
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)).
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 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).
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.
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.
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.
Exceptions to Councilman Abstention
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 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.
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. The Court agrees with respondents that
it should abstain from ...