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Date Created:December 18, 2013
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FOR PUBLICATION UNITED STATES COURT APPEALS FOR THE NINTH CIRCUIT ABD RAHIM HUSSEIN ALNASHIRI, Plaintiff-Appellant, No. 12-35475 D.C. No. 3:11-cv-05907RJB BRUCE MACDONALD; PAUL OOSTBURG SANZ, Defendant-Appellee. OPINION Appeal from the United States District Court for the Western District Washington Robert Bryan, Senior District Judge, Presiding Argued and Submitted June 2013 Seattle, Washington Filed December 20, 2013 Before: Arthur Alarc Margaret McKeown, and Sandra Ikuta, Circuit Judges. Opinion Judge McKeown AL-NASHIRI MACDONALD SUMMARY* Military Commissions Act The panel affirmed the district court dismissal action brought plaintiff non-citizen enemy combatant challenging ongoing proceedings against him before military commission the United States Naval Base Guantanamo Bay, Cuba. The panel held that, pursuant Hamad Gates, 732 F.3d 990 (9th Cir. 2013), Section the Military Commissions Act 2006 deprived the district court subject matter jurisdiction over plaintiff claims, which were non-habeas claims. The panel rejected plaintiff claims challenging the constitutionality the Military Commissions Act. COUNSEL Michel Paradis (argued), Office the Chief Defense Counsel, Washington, D.C.; Richard Kammen, Gilroy, Kammen, Maryan Moudy, Indianapolis, Indiana; Robert Gombiner, Law Offices Robert Gombiner, Seattle, Washington, for Plaintiff-Appellant. Sydney Foster (argued) and Robert Loeb, Attorneys, Appellate Staff, and Stuart Delery, Principal Deputy Assistant Attorney General, United States Department This summary constitutes part the opinion the court. has been prepared court staff for the convenience the reader. AL-NASHIRI MACDONALD Justice, Civil Division, Washington, D.C.; Jenny Durkan, United States Attorney, Seattle, Washington, for DefendantAppellee. James Brosnahan, Somnath Raj Chatterjee, and Megan Kiefer, Morrison Foerster LLP, San Francisco, California, for Amici Curiae Retired Military Admirals, Generals, and Colonels. David Remes, Appeal for Justice, Silver Spring, Maryland; John Parry, Portland, Oregon; William Aceves, San Diego, California, for Amicus Curiae Physicians for Human Rights. OPINION McKEOWN, Circuit Judge: Abd Rahim Hussein Al-Nashiri noncitizen enemy combatant undergoing proceedings before military commission the United States Naval Base Guantanamo Bay, Cuba. The charges against Al-Nashiri arose from his alleged role three terrorist plots: the 2000 attempted bombing the U.S.S. The Sullivans; the 2000 bombing the U.S.S. Cole, which killed seventeen U.S. military personnel; and the 2002 bombing the M/V Limburg, which killed one civilian. Al-Nashiri seeks declaratory judgment that the military commission lacks jurisdiction hear the charges against him because the alleged acts occurred Yemen, where argues war hostilities existed 2000 2002. More specifically, claims that Vice Admiral Bruce MacDonald (Ret.), then the Convening Authority for the Office Military Commissions, over-stepped his AL-NASHIRI MACDONALD authority because [t]he President and Congress uniformly declined confer [war-time] status events Yemen during that period. Consistent with our recent decision Hamad Gates, 732 F.3d 990 (9th Cir. 2013), hold that Section the Military Commissions Act MCA 2006 deprived the district court subject matter jurisdiction over Al-Nashiri claims. U.S.C. 2241(e). BACKGROUND MILITARY COMMISSION AUTHORITY Congress, authorizing the use military force following the September 11, 2001 terrorist attacks, gave the President the power detain certain individuals fundamental and accepted incident war. Boumediene Bush, 553 U.S. 723, 733 (2008) (quoting Hamdi Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion)). Shortly thereafter, President Bush issued order providing for military commission trials noncitizens had reason believe had been currently were members al-Qaida had otherwise participated terrorist activities directed the United States. Detention, Treatment, and Trial Certain Non-Citizens the War Against Terrorism, Fed. Reg. 57,833 (Nov. 13, 2001). 2004 Department Defense order created the Combatant Status Review Tribunal determine whether the Executive Branch had properly designated noncitizen detainees enemy combatants. Memorandum from Deputy Secretary Defense Paul Wolfowitz Order Establishing Combatant Status Review Tribunal (July 2004), available http://www.defense.gov/news/Jul2004/d20040707review.pdf. Absent such designation, military commissions lack authority over detainees. U.S.C. 948b (providing that AL-NASHIRI MACDONALD the MCA purpose establish procedures governing the use military commissions try alien unlawful enemy combatants engaged hostilities against the United States cf. Hamdi Rumsfeld, 542 U.S. 507, 509 (2004) (stating that citizen held the United States enemy combatant [must] given meaningful opportunity contest the factual basis for that detention, i.e. his designation enemy combatant). After legal challenges multiple fronts, Hamdan Rumsfeld, the Supreme Court invalidated, violations the Uniform Code Military Justice and the Geneva Conventions, number the commission procedures authorized statute and executive order. 548 U.S. 557, 625 (2006). response Hamdan, Congress enacted the Military Commissions Act 2006. Pub. No. 109 366, 120 Stat. 2600 (2006) 2006 MCA U.S.C. 2241(e) (2006); see Boumediene, 553 U.S. 735. The 2006 MCA authorized trial military commission for alien unlawful enemy combatant[s]. 2006 MCA 2009, Congress largely superseded the 2006 MCA and provided detainees certain additional procedural safeguards. Military Commissions Act 2009, Pub. No. 111 84, 123 Stat. 2574 (2009) 2009 MCA U.S.C. 948a seq. Relevant these proceedings, the 2009 MCA authorized the President establish military commissions try alien unprivileged enemy belligerents, opposed the earlier designation, enemy combatants, for violations the law war and other offenses triable military commissions. U.S.C. 948b(a) (b), 948c. The offenses specified the 2009 MCA are triable military commission only the offense committed the context and associated with hostilities. Id. 950p(c). Under the 2009 MCA, AL-NASHIRI MACDONALD hostilities are any conflict subject the laws war. Id. 948a(9). II. AL-NASHIRI PROCEEDINGS1 Al-Nashiri, Saudi national, was arrested Dubai 2002 and held U.S. custody. September 2006, AlNashiri was transferred Guantanamo Bay, where remains detention. The following year, Combatant Status Review Tribunal determined that Al-Nashiri was enemy combatant. Charges against Al-Nashiri alleging nine violations the MCA were referred the Military Commission Convening Authority 2011. The charges included the three referenced al-Qaida terrorist plots, conspiring with Osama bin Laden and others between 1996 and 2002 commit Terrorism and Murder Violation the Law War, and other related charges. Following referral these charges, Al-Nashiri formally requested that MacDonald not convene military commission. Al-Nashiri principally argued that the commission could not try him for the alleged offenses because they did not occur the context and were not associated with hostilities. This argument was based statement President Clinton response the U.S.S. Cole bombing suggesting that was peacetime attack; Congress failure declare war pass any other reviewing novo the government motion dismiss, accept true the factual allegations Al-Nashiri Complaint. See Ashcroft Iqbal, 556 U.S. 662, 678 (2009). Under the 2009 MCA, Al-Nashiri now classified alien unprivileged enemy belligerent. U.S.C. 948c. AL-NASHIRI MACDONALD authorization for the use military force response the U.S.S. Cole bombing; President Bush failure certify the existence hostilities Yemen until his War Powers Resolution report Congress September 2003; and the fact that Congress first recognized armed conflict Yemen 2009 Senate resolution.3 MacDonald issued orders convening commission try Al-Nashiri for the charges associated with the three terrorist plots. response, Al-Nashiri filed suit the Western District Washington naming MacDonald, the sole defendant, his individual capacity. The Complaint alleges that MacDonald military commission referral violated U.S.C. 950p(c); Article III the Constitution; and the Fifth, Sixth, and Eighth Amendments because the alleged offenses did not occur, matter law, the context and [were] not associated with hostilities. requested declaratory judgment stating that neither the President nor Congress certified the existence armed conflict subject the laws war Yemen prior September 2003 and See, e.g., The President Radio Address, Weekly Comp. Pres. Doc. 2176, 2177 (Oct. 14, 2000) (containing President Clinton remarks response the U.S.S. Cole bombing which stated that even when America not war, the men and women our military risk their lives every day and that [n]o one should think for moment that the strength our military less important times peace Letter Congressional Leaders Reporting Efforts the Global War Terrorism, Weekly Comp. Pres. Doc. 1247, 1247 (Sept. 19, 2003) (providing President Bush 2003 War Powers Resolution report Congress which stated that the United States had undertaken military operations against al-Qaida and other international terrorists the Horn Africa region, including Yemen Res. 341, 111th Cong. (2009) (enacted) (expressing concern about conflict between rebel forces and the Government Yemen resulting civilian displacement since 2004 AL-NASHIRI MACDONALD that MacDonald acted beyond his authority and violation the constitution issuing orders convene military commission with the power recommend the sentence death for allegations relating the three bombing incidents. The district court dismissed Al-Nashiri suit for lack subject matter jurisdiction the grounds that MCA and sovereign immunity barred the claims. the alternative, the court reasoned that even had subject matter jurisdiction, principles restraint articulated Schlesinger Councilman, 420 U.S. 738 (1975), counseled favor the court abstention from exercising equitable jurisdiction. DISCUSSION MILITARY COMMISSIONS ACT first consider the threshold question whether MCA stripped the district court subject matter jurisdiction over Al-Nashiri action. The answer, according Hamad, yes. Section the Military Commissions Act provides: (1) court, justice, judge shall have jurisdiction hear consider application for writ habeas corpus filed behalf alien detained the United States who has been determined the United States have been properly detained enemy combatant awaiting such determination. AL-NASHIRI MACDONALD (2) Except provided paragraphs (2) and (3) section 1005(e) the Detainee Treatment Act 2005 (10 U.S.C. 801 note), court, justice, judge shall have jurisdiction hear consider any other action against the United States its agents relating any aspect the detention, transfer, treatment, trial, conditions confinement alien who was detained the United States and has been determined the United States have been properly detained enemy combatant awaiting such determination. U.S.C. 2241(e). Subsection (1) not applicable because Al-Nashiri not seeking writ habeas corpus. Subsection (2), however, plainly applies Al-Nashiri action. See Gross FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) Statutory construction must begin with the language employed Congress and the assumption that the ordinary meaning that language accurately expresses the legislative purpose. (internal quotation marks omitted)). begin, Al-Nashiri seeks equitable relief based upon non-habeas action against agent the United States, MacDonald the Convening Authority. Al-Nashiri, Saudi national, does not contest his designation enemy combatant. Instead, challenges the government authority proceed with his military commission trial, arguing that the alleged offenses did not occur the context hostilities. Finally, Al-Nashiri does not fall under any the exceptions subsection (2) permitting courts hear certain cases under the Detainee Treatment Act. See Detainee Treatment Act 2005, Pub. AL-NASHIRI MACDONALD No. 109 148, div. title 1005(e), 119 Stat. 2680 (providing the D.C. Circuit with jurisdiction over limited challenges, such contesting combatant status review standards and procedures and final decisions military commission). Based the allegations the Complaint and under the plain terms 2241(e)(2), MCA bars the district court from exercising jurisdiction over Al-Nashiri claims. Recognizing the difficulty overcoming the plain language MCA Al-Nashiri nonetheless argues that MCA did not strip the district court subject matter jurisdiction because the Supreme Court Boumediene struck down MCA its entirety, MCA does not apply the claims this suit, and MCA unconstitutional.4 MILITARY COMMISSIONS ACT AFTER BOUMEDIENE Boumediene, the Supreme Court held that MCA operate[d] unconstitutional suspension the writ habeas corpus for military detainees held Guantanamo Bay. 553 U.S. 733. According the Court, the Suspension Clause had full effect Guantanamo Bay and MCA did not purport formal suspension the writ. Id. 771. holding, the Court did not specify that particular subsection MCA was unconstitutional. Id. light our decision, need not reach Al-Nashiri other arguments regarding abstention under Schlesinger Councilman whether MacDonald can assert sovereign immunity. See Sinochem Int Co. Ltd. Malaysia Int Shipping Corp., 549 U.S. 422, 431 (2007) [A] federal court has leeway choose among threshold grounds for denying audience case the merits. (internal quotation marks and citation omitted)). AL-NASHIRI MACDONALD 795. The Court Appeals for the D.C. Circuit later held that Boumediene applied only the stripping habeas jurisdiction, the first section the statute, leaving force 2241(e)(2). Al-Zahrani Rodriguez, 669 F.3d 315, 319 (D.C. Cir. 2012). Hamad, agreed with the D.C. Circuit, holding that the logic and context [Boumediene] make clear that the Supreme Court was addressing only 2241(e)(1). 732 F.3d 1000. Reasoning that 2241(e)(2) capable functioning independently, and consistent with Congress basic objectives enacting the MCA, concluded that 2241(e)(2) severable from 2241(e)(1) and remains effect, provided that constitutional. Id. 1003. Hamad forecloses Al-Nashiri argument that Boumediene struck down MCA whole. APPLICABILITY MCA THIS SUIT Even MCA survives Boumediene, Al-Nashiri argues that MCA does not apply this suit for three reasons: suing MacDonald his individual capacity, not agent the United States; not objecting any aspect trial, but rather the creation the military commission itself; and the legislative history the 2009 MCA counsels against reading MCA apply his suit. disagree. are unpersuaded Al-Nashiri claim that his suit against MacDonald individual and not agent the United States his official capacity. The language the Complaint belies this assertion. The declaratory relief that Al-Nashiri seeks only meaningful binds the U.S. government and its agents. seeks declaration that AL-NASHIRI MACDONALD neither the President nor Congress certified the existence armed conflict subject the laws war Yemen prior September 2003 and that MacDonald acted beyond his authority and violation the constitution issuing orders convene military commission with the power recommend the sentence death for allegations relating the three bombing incidents. This requested relief aimed either invalidating the referral order convincing the Convening Authority that does not have jurisdiction over Al-Nashiri, and would futile not directed against the United States its agents within the meaning MCA Cf. Wolfe Strankman, 392 F.3d 358, 367 n.2 (9th Cir. 2004) (holding U.S.C. 1983 action that the plaintiff sought declaratory and injunctive relief only available against defendants their official capacities). Because this official capacity suit, grant the government motion substitute MacDonald with Paul Oostburg Sanz, who replaced MacDonald the Convening Authority March 2013. See Fed. App. 43(c)(2) When public officer who party appeal official capacity ceases hold office [t]he public officer successor automatically substituted party. Al-Nashiri citation Larson Domestic Foreign Commerce Corporation, 337 U.S. 682 (1949), unavailing. Larson, the Supreme Court held that sovereign immunity does not bar suit for specific relief against government official when, for example, the official purports act individual and acts ultra vires, the official commits unconstitutional act because the statute order conferring power upon the officer take action claimed unconstitutional. Id. 689 90. Not only MCA constitutional, the only action MacDonald took issuing AL-NASHIRI MACDONALD orders convene military commission was his official capacity. Congress also impliedly sought limit judicial review here enacting alternative remedial scheme. the Supreme Court explained, [individual] relief can granted, without impleading the sovereign, only because the officer lack delegated power. claim error the exercise that power therefore not sufficient. Id. 690. Al-Nashiri cannot simply convert his suit individual action invoking that magic word his Complaint. need not address whether his suit barred sovereign immunity because falls squarely within the jurisdictionstripping provisions MCA Al-Nashiri effort sidestep the jurisdictional bar the ground that not objecting the creation the military commission itself fares better. urges that his challenge the military commission authority over the charges against him does not constitute any aspect trial. The broad phrase relating any aspect trial naturally includes the threshold question whether the tribunal has jurisdiction over the parties and claims. MCA 7(2). Indeed, Congress expressly provided the military commissions with this authority, stating that military commission competent tribunal make finding sufficient for jurisdiction. U.S.C. 948d. note that after briefing this appeal, the Military Commissions Trial Judiciary, Guantanamo Bay, Cuba, denied without prejudice Al-Nashiri motion dismiss based his claim that the Convening Authority exceeded his authority. Order, No. AE104 (Jan. 13, 2013). The military judge held that [w]hether hostilities existed between Qaeda and the United States the dates the accused alleged acts question fact and element proof, which must carried the government. Order The tribunal further AL-NASHIRI MACDONALD held that, matter law, owed judicial deference the political branches collective determination the existence hostilities. Order Al-Nashiri also points the legislative history the 2009 MCA, claiming that undermines the application MCA his claims. The 2009 MCA omits U.S.C. 950j(b), statutory provision from the 2006 MCA that barred courts from hearing any claim cause action whatsoever relating the prosecution, trial, judgment military commission. Al-Nashiri thus argues that, effectively repealing this provision, Congress could not have intended maintain such broad jurisdiction-stripping language MCA for non-habeas claims. return the plain language the statute, which controls unless its application leads unreasonable impracticable results. Valladolid Pac. Operations Offshore, LLP, 604 F.3d 1126, 1133 (9th Cir. 2010) (internal quotation marks omitted). discussed above, the plain language MCA controls all judicial jurisdiction barred for non-habeas action. This result both reasonable and practicable. The history 950j(b) points exception for non-habeas claims. Nor was the section singled out for omission. Rather, Congress replaced the entire chapter which was part. See Pub. No. 111 84, div. tit. XVIII, 1802, 123 Stat. 2574 612. revised the language governing military commissions and granted the D.C. Circuit exclusive authority determine the validity final judgment rendered military commission when other review procedures had been exhausted. U.S.C. 950g(a). Nothing the text suggests that Congress intended exempt non-habeas claims from the requirements MCA AL-NASHIRI MACDONALD CONSTITUTIONALITY MCA Al-Nashiri also claims that MCA violates his right equal protection under the Fifth Amendment5 and constitutes bill attainder. Both arguments were rejected Hamad, where held that Congress decision 2241(e)(2) preclude only alien detainees captured part the war terror from bringing damages actions easily passes rational basis review. 732 F.3d 1006. concluded that the classification served legitimate foreign policy concern ensuring that members the armed forces are not unduly chilled conducting the war terror concerns about foreign nationals targeting them with damages claims. Id. (internal citation and quotation marks omitted). Hamad also addressed identical bill attainder challenge. Our rejection was swift: does not violate the Bill Attainder Clause, U.S. Const. art. cl. because does not inflict legislative punishment historically understood. Hamad, 732 F.3d 1004. Congress enacted 2241(e) limit and channel federal court review detention and military commission decisions, Although Al-Nashiri did not raise this Fifth Amendment argument the district court, consider here because question law that easily disposed Hamad. United States Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) While issues not raised the district court normally are deemed waived, have recognized three narrow exceptions this general rule, including where the issue presented purely one law and the opposing party will suffer prejudice result the failure raise the issue the trial court (internal quotation marks omitted)). AL-NASHIRI MACDONALD not impose any particular punishment military detainees. Id. AFFIRMED.