Case 3:11-cv RJB Document 22 Filed 03/02/12 Page 1 of 33 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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1 Case :-cv-00-rjb Document Filed 0/0/ Page of The Honorable Robert J. Bryan 0 ABD AL-RAHIM HUSSEIN MUHAMMED ABDU AL-NASHIRI, v. BRUCE MACDONALD, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA Plaintiff, Defendant DEFENDANT S MOTION TO DISMISS Noted for Consideration: April, 0 ORAL ARGUMENT REQUESTED Defendant Vice Admiral (Ret.) Bruce MacDonald, by and through undersigned counsel, respectfully moves this Court to dismiss this action for lack of subject-matter jurisdiction under Fed. R. Civ. P. (b)(), or, in the alternative, for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. (b)(). INTRODUCTION Plaintiff Abd Al-Rahim Hussein Muhammed Abdu Al-Nashiri ( Al-Nashiri ) is an alien detained at the U.S. Naval Station at Guantanamo Bay, Cuba. He is currently facing trial before a military commission on numerous charges, including murder in violation of the law of war, for his role in several al Qaeda terrorist attacks, among them the 000 bombing of the USS Cole in which American sailors died. He contests the military commission s jurisdiction to try him on both statutory and constitutional grounds, claiming that his alleged offenses are not triable by U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

2 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 military commission because they did not occur at a time or in a theater of declared hostilities. If accepted by the commission or, on appeal, by the U.S. Court of Appeals for the District of Columbia Circuit Al-Nashiri s claims would require that the commission charges against him be dismissed. Despite the fact that Al-Nashiri has the right to raise his objection to the military commission s jurisdiction at any time during the commission s proceedings, and thereafter to seek review of the commission s determination of jurisdiction on appeal to the D.C. Circuit, he has not pursued this argument within the commission itself. Instead, Al-Nashiri filed this lawsuit against Vice Admiral (Ret.) Bruce MacDonald (the Defense Department official who convened the commission to try Al-Nashiri), seeking a declaration that because of the alleged defect in the commission s jurisdiction, Admiral MacDonald acted in excess of his statutory authority, and in violation of the Constitution, when he ordered that Al-Nashiri be tried by a military court. It is unclear for what purpose Al-Nashiri might use such a declaration, except perhaps as support for a motion to be filed with the commission to dismiss the charges against him. It is clear, however, that Congress meant for these claims to be heard in the first instance by the military commission and on appeal in the D.C. Circuit not in federal district court. Not only has Congress expressly vested the commission with the competence and responsibility to determine matters of its own jurisdiction, and vested exclusive jurisdiction in the D.C. Circuit to review the commission s judgments, it has also expressly provided that no court, justice, or judge shall have jurisdiction to hear or consider any... action against the United States or its agents relating to any aspect of the... trial of a detained enemy combatant such as Al-Nashiri. U.S.C. (e)(). Even if (e)() did not expressly bar this action, the Court would still lack subject-matter jurisdiction, as no waiver of sovereign immunity allows Al-Nashiri to litigate his claims in this forum instead of in the commission itself, as Congress intended. Even if this Court possessed subject-matter jurisdiction to hear Al-Nashiri s claims, it would nonetheless have to decline his request to short-circuit the congressionally mandated military commission process. Well-established principles of comity articulated by the Supreme U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

3 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 Court in Schlesinger v. Councilman, 0 U.S. (), instead require that this Court abstain from exercising equitable jurisdiction in this case. First, the injury Al-Nashiri has alleged, the burden of defending himself in a forum whose jurisdiction he contests, is no different or greater than the rigors of trial faced by any criminal defendant, and is insufficient as a matter of law to justify a federal court s intervention in an ongoing criminal prosecution. Second, Congress designed the military commission system so as to ensure the vindication of Al-Nashiri s rights, through procedural protections that guarantee the fundamental fairness of the proceedings, and appellate review in the D.C. Circuit if Al-Nashiri is convicted. Finally, the subject-matter jurisdictional issues that Al-Nashiri asks this Court to resolve concern matters, falling within the expertise of the military commission, that Congress intended the commission to address in the first instance and the D.C. Circuit to address on appeal a legislative allocation of responsibility that a federal court is bound in equity to respect. Abstention under Councilman is therefore required. For these reasons, which are explained further below, the Court must dismiss this case under Fed. R. Civ. P. (b)() for lack of subject-matter jurisdiction. Alternatively, the case must be dismissed under Fed. R. Civ. P. (b)() for failure to state a claim upon which relief can be granted by this Court. STATUTORY AND FACTUAL BACKGROUND The Military Commissions Act of 00 The Military Commissions Act of 00, Pub. L. No. -, Stat. (codified at U.S.C. a et seq) ( 00 MCA or MCA ), which supersedes but substantially reenacts the Military Commissions Act of 00, Pub. L. No. -, Stat. 00 ( 00 MCA ), authorizes the President to establish military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military courts, U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

4 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 U.S.C. b(a)-(b). The statute defines unprivileged enemy belligerent as an individual (other than someone qualifying under the Geneva Conventions as a prisoner of war) who: (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense. Id. a(). An alien is an individual who is not a citizen of the United States. Id. a(). When the Government seeks to try an individual before a military commission under the MCA, the first step is the swearing of charges and specifications against the individual by a member of the armed forces having knowledge or reason to believe that the matters alleged are true. U.S.C. q. Upon receipt of the charges, the Secretary of Defense or his designee known as the Convening Authority considers the charges and evidence provided by the prosecution in support thereof and decides the proper disposition of the charges. See id. h. Only when the Convening Authority receives written advice from his legal advisor and, subsequently, independently concludes that there are reasonable grounds to believe an offense triable by military commission has been committed and that the accused committed it may the Convening Authority refer the charge and specification to trial by military commission. See R.M.C. 0, 0, 0(d). A military commission is composed of at least five commissioned officers of the armed forces, except in capital cases, where in all but extraordinary circumstances the number may be no less than twelve. U.S.C. i(a), m(a), m(c). The commission is presided over by an appointed military judge, who must also be a commissioned officer. Id. j(a)-(b). The jurisdiction of an MCA commission extends to trials for any of the offenses codified in the MCA (e.g., murder in violation of the law of war, terrorism, etc.), see U.S.C. Rules of procedure for military commissions are set forth in the Rules for Military Commissions, Part II of the Manual for Military Commissions (0) (published pursuant to U.S.C. a), available at Documents/CurrentDocuments.aspx, hereinafter referred to as R.M.C.. U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

5 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 0t; offenses under U.S.C. 0 (aiding the enemy) and 0 (espionage); or any offense made punishable by the law of war, id. d. Jurisdiction is limited to offenses committed in the context of and associated with hostilities, id. 0p(c), with hostilities defined as any conflict subject to the laws of war, id. a(). However, the MCA provides that jurisdiction exists to try persons for these offenses whether such offense was committed before, on, or after September, 00. Id. d. A defendant in a commission case can challenge the commission s jurisdiction at any stage of the proceedings. See U.S.C. d(a) (A), (B) (providing that, at any time, the military judge may call the commission into session for the purpose of hearing and determining motions raising defenses or objections which are capable of determination without trial and hearing and ruling upon any matter which may be ruled upon by the military judge under [the MCA] ); R.M.C. 0 (permitting motions relating to [a]ny... objection[ ] or request which is capable of determination without the trial of the general issue of guilt, including objections based on defects... in the swearing, forwarding, investigation, or referral of charges ; providing that motions attacking jurisdiction need not be raised before entering a plea; and, [i]n the case of a motion to dismiss for lack of jurisdiction, stating that the burden of persuasion shall be upon the prosecution ); R.M.C. 0 (stating that [n]onwaivable grounds for a motion to dismiss include that the military commission lacks jurisdiction to try the accused for the offense ). Furthermore, the MCA expressly provides that [a] military commission is a competent tribunal to make a finding sufficient for jurisdiction. U.S.C. d; see also R.M.C. 0(b) ( A military commission always has jurisdiction to determine whether it has jurisdiction. ). In addition to these provisions regarding jurisdiction, the MCA provides defendants a panoply of procedural protections to ensure the fundamental fairness of the proceedings, including, for example: the right to have military defense counsel appointed, U.S.C. k; the right to retain private civilian counsel, id. c; the right to an impartial judge and trier of fact, see id. f(a) (allowing the accused to challenge for cause the military judge and the U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

6 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 members of the military commission); the presumption of innocence until proven guilty beyond a reasonable doubt, id. l; the right to be present during trial, id. a(b)()(b); and rights to discovery, to disclosure of exculpatory evidence, and to call witnesses, id. j. If convicted by a military commission, a defendant may invoke an extensive appellate review process. First, the Convening Authority is granted discretion to dismiss any charge on which an accused was found guilty, to convict the accused instead of a lesser included offense, and to approve, disapprove, suspend, or commute (but not enhance) the sentence rendered by the commission in whole or in part. U.S.C. 0b(c). After review by the Convening Authority, cases are automatically referred, absent an express waiver by the accused, for review by a panel of no less than three appellate military judges of the United States Court of Military Commission Review (USCMCR). Id. 0c, 0f. (USCMCR review is not waivable in capital cases. Id. 0c(b)()). The USCMCR may affirm only such findings of guilt and sentences as it finds correct in law and fact... on the basis of the entire record, and in doing so is authorized to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact.... Id. 0f(d). Thereafter, appeal as of right is available to the accused in the U.S. Court of Appeals for the District of Columbia Circuit, to which Congress has extended exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority and, where applicable, the [USCMCR]). Id. 0g(a), (c) (emphasis added). The scope of the D.C. Circuit s review encompasses all matters of law, including the sufficiency of the evidence to support the verdict. Id. 0g(d). Beyond the D.C. Circuit, review is available in the Supreme Court by writ of certiorari. Id. 0g(e). U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

7 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 Swearing and Referral of Charges against Al-Nashiri Al-Nashiri is a Saudi national, currently detained at the U.S. Naval Station at Guantanamo Bay and facing charges before a military commission convened pursuant to the MCA. See Complaint filed November, 0 (dkt. no. ),,. The charges pending against Al-Nashiri, who faces a maximum penalty of death, were sworn on September, 0, and relate to his alleged role in three terrorist attacks perpetrated by al Qaeda: the 000 attempted bombing of the United States Navy destroyer USS The Sullivans (DDG ) in Yemen; the 000 bombing of the United States Navy destroyer USS Cole (DDG ) in Yemen that killed seventeen American sailors; and the 00 bombing of a French oil tanker in Yemen that killed one crew member. See Compl. Attach. E (Al-Nashiri Charge Sheet, as amended by Convening Authority for referral). The defendant in this case, Vice Admiral (Ret.) Bruce MacDonald, is a former Judge Advocate General of the United States Navy currently serving by appointment of the Secretary of Defense in a civilian capacity as the Convening Authority of Military Commissions. Compl. ; see U.S.C. h. On September, 0, Admiral MacDonald convened a military commission for the trial of Al-Nashiri and referred the sworn charges, as amended, to the commission. Compl. Attachs. B (Military Commission Convening Order No. -0), C & D (Directions of Convening Authority), and E (Charge Sheet, as amended for referral). Although this lawsuit concerns Admiral MacDonald s actions taken in his capacity as the Convening Authority, he is, according to the Complaint, being sued in his individual capacity for actions Al-Nashiri is detained pursuant to the 00 Authorization for the Use of Military Force, which permits the United States to detain persons who were part of or substantially supported al Qaeda, the Taliban, or associated forces. Pub. L. No. -0, (a), Stat. (00); see also National Defense Authorization Act for Fiscal Year 0, Pub. L. No. -, (a), (b)(), Stat., ; Al-Adahi v. Obama, F.d, (D.C. Cir. 0). Al- Nashiri has challenged the legality of his detention in a habeas corpus action that is pending before the U.S. District Court for the District of Columbia. See Al-Nashiri v. Obama, No. :0- cv- (D.D.C.). U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

8 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 taken beyond his statutory authority and in breach of the Constitution of the United States. Id. (emphasis added). The proceedings in Al-Nashiri s military commission case are now underway at Guantanamo. On November, 0, Al-Nashiri was arraigned before the commission, and the military judge presiding over the case has since called the commission into session on January and, 0, to hear a series of motions brought by the prosecution and defense. See United States v. Al-Nashiri, Arraignment Transcript, Nov., 0, and Motions Transcripts, Jan. -, 0. The next pre-trial session is scheduled for April -, 0. Id., Docketing Order, Jan. 0, 0. Although the judge in Al-Nashiri s case has tentatively scheduled trial to begin in November 0, Al-Nashiri has indicated through counsel that he will request a delay of that trial date. Transcript of Motions Hearing, Jan., 0 (PM) at (Defense Counsel: [W]e will be asking to delay the November 0 [trial] date. ). ALLEGATIONS IN THE COMPLAINT According to Al-Nashiri s Complaint, the terrorism offenses with which he is charged having allegedly occurred in Yemen in 000 and 00 predated the existence of any armed conflict and occurred far from any battlefield. Compl., -. Thus, according to Al- Nashiri, they were not committed in the context of and associated with hostilities, and therefore are not triable by a military commission. See Compl.,,,. On this basis, Al-Nashiri maintains that Admiral MacDonald s orders (to convene a military commission and refer the charges against Al-Nashiri for trial) violated the terms of the MCA and the Constitution, Filings in Al-Nashiri s military commission case are available at CASES/MilitaryCommissions.aspx. For purposes of this motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. (b)() and failure to state a claim upon which relief can be granted under Fed. R. Civ. P. (b)(), the allegations in Al-Nashiri s Complaint must be assumed to be true. See Wolfe v. Strankman, F.d, (th Cir. 00) (Rule (b)()); Keniston v. Roberts, F.d, 0 (th Cir. ) (Rule (b)()). The Defendant reserves the right to contest the facts alleged by Al-Nashiri as may later be necessary and appropriate. U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

9 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 and are thus ultra vires and void. Compl. ; see also id. Attachs. B through E (orders). Specifically, Al-Nashiri first claims that Admiral MacDonald s orders violate the MCA s limitation of triable offenses to those committed in the context of and associated with hostilities, U.S.C. 0p(c). See Compl.. He next maintains that Admiral MacDonald s orders encroach upon the exclusive jurisdiction of Article III courts over the trial of crimes, arguing that an exception for military trials that is, military trials of offenses occurring in the context of and associated with an armed conflict subject to the laws of war does not apply here. Id.. For that reason as well, Al-Nashiri also asserts that Admiral MacDonald s orders unconstitutionally subject him to trial on capital charges without benefit of the safeguards afforded by the Fifth, Sixth, and Eighth Amendments. Id. -. Al-Nashiri describes his alleged injury in this matter as the burden of defending himself in the military commission despite the supposedly unauthorized nature of Admiral MacDonald s orders. Id.,,. He invokes the Declaratory Judgment Act, U.S.C. 0-0, and the general federal question statute, U.S.C., as the bases for the Court s subject-matter jurisdiction. Compl.. And, as for relief, Al-Nashiri asks this Court for a declaration that [Admiral] MacDonald acted beyond his authority and in violation of the [C]onstitution by issuing orders to convene a military commission with the power to recommend the sentence of death for his alleged offenses, because they did not occur, as a matter of law, in the context of and [were] not associated with hostilities. Compl. at ( Prayer for Relief ). Al-Nashiri does not explicitly seek an injunction or order of any kind to prevent his military commission case from proceeding. ARGUMENT Al-Nashiri s attempt to litigate the jurisdiction of his military commission in this Court must be rejected for two separate and independent reasons. First, this Court lacks subject-matter jurisdiction over this action because Al-Nashiri s claims are expressly barred by U.S.C. (e)(), and, even if that were not the case, no waiver of the Government s sovereign U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

10 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 immunity authorizes this suit. Second, even if the Court had subject-matter jurisdiction, principles of comity articulated by the Supreme Court in Schlesinger v. Councilman, 0 U.S. (), require that it abstain from exercising equitable jurisdiction. Instead, Al-Nashiri must present his jurisdictional objections to the military commission itself, which Congress has expressly vested with competence to consider matters of its own jurisdiction, and whose judgment on that matter is subject to plenary review in the D.C. Circuit, and, ultimately, the Supreme Court. I. THE COURT LACKS SUBJECT-MATTER JURISDICTION TO HEAR THIS CASE A. Al-Nashiri s Claims Are Barred by U.S.C (e)(). This suit is barred by U.S.C. (e)() and must be dismissed for lack of subjectmatter jurisdiction. Although Al-Nashiri can press his statutory and constitutional objections to the commission s jurisdiction within the context of his military commission case, and, if convicted, in federal court under the appeal provisions of the MCA, he cannot press those claims in a suit of this kind, because Congress has affirmatively stripped courts of jurisdiction to hear such actions. Section of the 00 MCA (codified at U.S.C. (e)()) provides that: Except as provided in paragraphs () and () of section 0(e) of the Detainee Treatment Act of 00 ( U.S.C. 0 note) [an exception not applicable here] no court, justice, or judge shall have jurisdiction to hear or consider any... action [other than a petition for a writ of habeas corpus] against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. U.S.C. (e)() (emphasis added); see also Kiyemba v. Obama, F.d 0, (D.C. Cir. 00). This action falls squarely within the prohibition of (e)(). In his Complaint, Al- Nashiri acknowledges that he is an alien (a Saudi national) detained by the United States, Compl., and does not dispute that he has been determined by the United States to be properly U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

11 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 detained as an enemy combatant or, at a minimum, is awaiting such determination. U.S.C. (e)(). Indeed, Al-Nashiri has been classified by a Combatant Status Review Tribunal ( CSRT ) to be an enemy combatant, see Declaration of Frank Sweigart (attached), a finding that constitutes a determination by the United States within the meaning of (e)(). See Al Janko v. Gates, --- F. Supp. d ---, 0 WL 00, at * (D.D.C. Dec., 0) (finding that determinations of two separate CSRTs that plaintiff was an enemy combatant more than satisfy the statutory requirements of [ (e)()] ), appeal filed Jan., 0 (D.C. Cir. No. -0); see also In re Pet rs Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay, 00 F. Supp. d, - (D.D.C. 0) ( In [ [(e)()], the term United States unmistakably refers to the Executive Branch, not the judiciary, and the determination by the United States [that a detainee was an enemy combatant] is not subject to court review. ). In addition, the statutory and constitutional challenges in this lawsuit plainly relat[e] to aspect[s] of his military commission trial. See U.S.C. (e)(). On its face, Al- Nashiri s suit relates entirely to the convening of the military commission and the referral of charges on which he will be tried. Compl.,,, -,, - & Prayer for Relief. Indeed, at the core of Al-Nashiri s lawsuit is his assertion that the charged offenses, as alleged, were not committed in the context of and associated with hostilities (i.e., a conflict subject to the laws of war) and, therefore, are not triable by a military commission. See Compl.,,,. This assertion is nothing more (or less) than an attack on the commission s subject-matter jurisdiction, undeniably an aspect of his trial. See U.S.C. d (delineating offenses within a commission s jurisdiction), 0p(c) (limiting jurisdiction to trial of offenses In support of a motion to dismiss under [Fed. R. Civ. P.] (b)(), the moving party may submit affidavits or any other evidence properly before the court.... It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. Colwell v. Dep t of Health and Human Servs., F.d, (th Cir. 00) (quoting St. Clair v. City of Chico, 0 F.d, 0 (th Cir. )). U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

12 Case :-cv-00-rjb Document Filed 0/0/ Page of committed in the context of and associated with hostilities ), a() (defining hostilities as any conflict subject to the laws of war ). Accordingly, U.S.C. (e)() bars this action, and the suit must be dismissed for lack of jurisdiction. See Al-Zahrani v. Rodriguez, --- F.d ---, 0 WL 0, at *- (D.C. Cir. Feb., 0) (applying (e)() as a bar to damages action against government officials for alleged mistreatment and eventual death of Guantanamo detainees); Al Janko, --- F. Supp. d ---, 0 WL 00, at * (applying (e)() as a bar to former detainee s damages action against government officials for alleged constitutional violations), * (noting that [f]or this Court to circumvent such a clear directive [i.e., U.S.C. (e)()] from our Legislative Branch would be an utter disregard of the limitations of our judicial power ); Khadr v. Bush (Khadr I), F. Supp. d, - (D.D.C. 00) (applying U.S.C. (e)() as a bar to a detainee conditions of confinement challenge); Al-Adahi v. Obama, F. Supp. d, - (D.D.C. 00) (similar). 0 A member of this Court recently concluded that U.S.C. (e)() is no longer in force or effect in light of Boumediene v. Bush, U.S. (00). Hamad v. Gates, No. C- (MJP), 0 WL (W.D.Wash. Dec., 0) (slip opinion) (dismissing on other grounds a constitutional tort suit brought by a Guantanamo detainee). The Government respectfully submits that the conclusion in Hamad was erroneous. Although Boumediene invalidated U.S.C. (e)() (the provision in Section of the 00 MCA withdrawing habeas jurisdiction for detainees) as a violation of the Suspension Clause, Boumediene left (e)() s bar on non-habeas challenges undisturbed. See Boumediene, U.S. at ( In view of our holding [striking down the jurisdictional bar on habeas actions, which is codified in (e)()], we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement, [which are addressed in (e)())] ). Indeed, every other court that has addressed this issue before and after Hamad has determined that (e)() survived Boumediene as a jurisdictional bar to non-habeas suits. See, e.g., Al-Zahrani v. Rodriguez, --- F.d ---, 0 WL 0, at *-* (D.C. Cir. Feb, 0) (holding that the Supreme Court did not declare (e)() unconstitutional in Boumediene and the provision retains vitality to bar... claims ); Kiyemba v. Obama, F.d 0, n. (D.C. Cir. 00) (noting that, although Boumediene referred to [of the 00 MCA] without specifying a particular subsection of (e)[,]... its discussion of the Suspension Clause clearly indicates it was referring only to that part of codified at (e)() ), cert. denied, S. Ct. 0 (0); Al Janko v. Gates, --- F. Supp. d ---, 0 WL 00, at * n. (finding argument that Boumediene struck down (e)() wholly unconvincing ); Al-Adahi v. Obama, F. Supp. d, -0 (D.D.C. 00) (concluding that the Supreme Court s direct disavowal of reaching any conclusion about the validity of (e)() overcomes any ambiguity); Khadr v. Bush, F. Supp. d, - (D.D.C. 00) ( Boumediene invalidated only section (e)(), but not section (e)() ); In re Guantanamo Bay Detainee Litig., F. Supp. d, - (D.D.C. 00) ( Cognizant of the long-standing rule of severability, this Court, therefore, holds that [ (e)()] remains U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

13 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 Al-Nashiri cannot evade this bar on the pretext that he is suing Admiral MacDonald in his individual rather than his official capacity. See Compl.. By its terms the jurisdictional bar of (e)() applies to suits against the United States or its agents, and courts have recognized that the bar applies to suits against officials in their individual capacities. See, e.g., Al Janko, --- F. Supp. d ---, 0 WL 00, at *-*. In any event, the Supreme Court has explained that individual (also referred to as personal) capacity suits are those seek[ing] to impose personal liability upon a government official for actions he takes under color of... law. Kentucky v. Graham, U.S., (). The general rule, however, is that relief nominally against an officer is in fact against the sovereign if the decree would operate against the latter. Pennhurst State Sch. & Hosp. v. Halderman, U.S., () (quoting Hawaii v. Gordon, U.S., () (per curiam)); see also Palomar Pomerado Health Sys. v. Belshe, 0 F.d, (th Cir. ). A suit of that nature is one against the officer in his official capacity, for the real party in interest is the sovereign, not the individual officeholder. Graham, U.S. at ; see also Karcher v. May, U.S., (). And the suit is, in all respects other than name, to be treated as a suit against the sovereign. Graham, U.S. at. Although Al-Nashiri purports to sue Admiral MacDonald in his individual capacity, the relief Al-Nashiri seeks a judgment declaring that the military commission convened by Admiral MacDonald is without jurisdiction to try him would impose no liability on Admiral MacDonald of a personal nature and would be of no consequence to him individually. Rather, Al-Nashiri manifestly envisions that the hoped-for judgment will operate against the Government as support for an effort, to be mounted in his military commission case, to bring that valid. ); In re Guantanamo Bay Detainee Litig., 0 F. Supp. d, (D.D.C. 00) ( [T]his court interprets Boumediene to invalidate only U.S.C. (e)(). ). The opposite conclusion reached by this Court in Hamad is contrary to the bedrock principle that a court should invalidate as little of an unconstitutional statute as necessary to bring it into conformity with the Constitution. See Ayotte v. Planned Parenthood of N. New Eng., U.S. 0, (00); see also Regan v. Time, Inc., U.S., () (applying presumption favoring severability); Stormans, Inc. v. Selecky, F.d, (th Cir. 00) (same). U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

14 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 proceeding to a halt and relieve him of the burden of defending himself, Compl., before he can be tried or convicted. Otherwise this suit would have no purpose other than to seek an impermissible advisory opinion of past wrongs committed by Admiral MacDonald, see Lee v. Int l Boundary Comm n, 0 F.d, - (th Cir. 0), and Al-Nashiri would lack standing to maintain this action. See McConnell v. Fed. Election Comm n, 0 U.S., (00) (finding plaintiff lacked Article III standing to sue where the asserted injury could remain unchanged even if the requested relief was granted). The real party in interest, therefore, is not Admiral MacDonald but the entity, the United States, that seeks to bring Al- Nashiri to trial for his alleged crimes and whose intentions Al-Nashiri means to thwart. Hence, this suit is in all respects other than name a suit against the United States, and must be treated as such. Graham, U.S. at. That being so, it is barred by (e)() and must be dismissed. B. Even if U.S.C. (e)() Did Not Apply, the Court Would Lack Jurisdiction Based on the Doctrine of Sovereign Immunity The United States may not be sued without its consent, and consent is a prerequisite for jurisdiction. United States v. Mitchell, U.S. 0, (); see also McGuire v. United States, 0 F.d 0, (th Cir. 00). Although Congress may waive the Government s immunity, such a waiver cannot be implied but must be unequivocally expressed in statutory text and strictly construed in... in favor of the sovereign. Lane v. Pena, U.S., (). In sovereign immunity analysis, any lawsuit against... an officer of the United States in his or her official capacity is considered an action against the United States. Balser v. Dep t of Justice, F.d 0, 0 (th Cir. 00). And the well-settled principle that, absent waiver, federal officers are immune from suit in their official capacity holds true regardless of whether plaintiffs seek monetary or equitable relief and compels dismissal even where constitutional violations are alleged. Desarrollo Economicode Mexicali, A.C. v. United States, F.d, (th Cir. 00). Al-Nashiri bears the burden of establishing that sovereign immunity has been unequivocally waived. United States v. Park Place Assoc., Ltd., F.d 0, (th U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

15 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 Cir. 00). Because he has not done so, sovereign immunity provides an additional basis upon which to dismiss this suit for lack of jurisdiction. Al-Nashiri asserts that this Court has subject-matter jurisdiction over this action pursuant to the Declaratory Judgment Act, U.S.C. 0-0 ( DJA ), and the general federal question jurisdiction statute, U.S.C.. Neither of these provisions, however, contains a waiver of sovereign immunity. North Side Lumber Co. v. Block, F.d, (th Cir. ) (Section contains no waiver of sovereign immunity for an action against the United States in district court); State of Calif. ex rel. Calif. Dept. of Fish and Game. v. Quechan Tribe of Indians, F.d, (th Cir. ) (DJA does not waive sovereign immunity). The Administrative Procedure Act contains a limited waiver of sovereign immunity, U.S.C. 0, but that waiver is not applicable here for several reasons. First, 0 s waiver applies only to suits challenging conduct by an agency or an officer or employee thereof, and, for purposes of the APA s judicial review provisions (including 0), the definition of agency explicitly excludes military commissions: (b) For purposes of this chapter () agency means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include: Indeed, the DJA, which merely provides a remedy, is not even a proper source of subject-matter jurisdiction, let alone a waiver of sovereign immunity. As this Circuit has noted, it is imprecise to describe the discretion provided by the DJA in terms of jurisdiction because [a] court s jurisdiction is distinct from its remedial powers. Countrywide Home Loans Inc.v. Mortg. Guar. Ins. Corp., F.d, (th Cir. 0) (citing Steel Co. v. Citizens for a Better Env t, U.S., 0 ()). The DJA gives district courts the discretion to decline to exercise the conferred remedial power but in no way modifies the district court s jurisdiction, which must properly exist independent of the DJA. Id. at (internal citation omitted). Section 0 provides, in relevant part: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

16 Case :-cv-00-rjb Document Filed 0/0/ Page of *** (F) courts martial and military commissions[.] U.S.C. 0 (emphasis added). Thus, in waiving sovereign immunity for certain nonmonetary suits against the United States, Congress explicitly reserved immunity for suits involving the conduct of military commissions, of which Al-Nashiri s suit is clearly an example. Section 0 s waiver is thus unavailable here. See McKinney v. White, F.d, - (D.C. Cir. 00) (APA claim dismissed based on courts-martial exclusion in U.S.C. 0(b)()(F)). Even if U.S.C. 0(b)()(F) did not exclude military commissions from the operative definition of agency, 0 s waiver of sovereign immunity would remain inapplicable because the APA s provisions on judicial review (including 0) also do not apply where another statute[ ] preclude[s] judicial review. U.S.C. 0(a)(). As discussed above, U.S.C. (e)() precludes this action, but even apart from that express prohibition, judicial review may also be impliedly precluded where a statutory scheme, through the establishment of formal administrative remedies, and a detailed mechanism for judicial consideration of particular issues, reflects an intent by Congress to confine judicial review to the terms provided thereunder. Block v. Cmty. Nutrition Inst., U.S. 0, - (). The MCA, which provides for review of a commission s judgment by both the Convening Authority, U.S.C. 0b(c), and the USCMCR, id., 0f, and vests exclusive jurisdiction in the D.C. Circuit to 0 determine the validity of final commission judgments, is such a statute. Because preclusion Whether and to what extent a particular statute precludes judicial review [under the APA] is determined not only from [the statute s] express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved. Block v. Cmty. Nutrition Inst., U.S. at. [C]ongressional intent to preclude judicial review need only be fairly discernible in the detail of the legislative scheme. Id. at. As summarized above, the MCA s extensive and detailed provisions prescribing each step of administrative and judicial review of a commission s determination of guilt (and sentence) amply evinces an intent by Congress to preclude suits such as Al-Nashiri s. Id. at -; U.S.C. 0(a)(). To hold otherwise and license suits of this kind would severely disrupt this [statutory] scheme and effectively nullify Congress intent in enacting it, whereas [p]reclusion of [this suit] does not pose any threat to realization of the [MCA s] U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

17 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 within the meaning of 0(a)() renders 0 s waiver of sovereign immunity inapplicable, its effect is jurisdictional, and bars consideration in this forum of the issues that Al-Nashiri seeks to litigate. See Block v. Cmty. Nutrition Inst., U.S. at n. (noting that preclusion of judicial review is in effect jurisdictional ). In recognition, perhaps, that he must overcome the bar of sovereign immunity (as well as that erected by (e)()), it appears that Al-Nashiri may have (mis-)styled his Complaint as an individual-capacity action, see Compl., in an effort to invoke the exceptions to sovereign immunity described in Larson v. Domestic & Foreign Corp., U.S., (), and related cases. In Larson, the Supreme Court held that a suit against a federal official in his official capacity was a suit against the United States and thus barred by sovereign immunity. Id. at. The Court suggested two situations, however, in which sovereign immunity would not bar suit. Id. at -. Specifically, the Court remarked that sovereign immunity would not bar suits alleging that: () an officer acted beyond his statutory authority (i.e., ultra vires ); and () an officer acted pursuant to authority conferred by an unconstitutional statute, or exercised his authority in an unconstitutional manner. Id. at -0; see also Malone v. Bowdoin, U.S., (); Dugan v. Rank, U.S. 0, - (). statutory objectives; it means only that those objectives must be realized through the specific remedies provided by Congress. Block v. Cmty. Nutrition Inst., U.S. at,. Furthermore, even if the APA s waiver could somehow apply here, it would not eliminate the Court s equitable discretion to deny relief. Declaratory relief is discretionary, Brillhart v. Excess Ins. Co., U.S., (), and the APA specifically provides that its judicial review provision does not affect the power or duty of the court to dismiss any action or deny relief on any... appropriate legal or equitable ground. U.S.C. 0. Indeed, as discussed below, the principles explained in Schlesinger v. Councilman, 0 U.S. (), require that the Court deny equitable relief even if jurisdiction otherwise existed. The Ninth Circuit has abandoned the Larson line of cases, at least with respect to suits that may be brought under the APA s waiver of sovereign immunity, as enacted in. See E.E.O.C. v. Peabody Western Coal Co., F.d 0, (th Cir. 0). Other Circuits have done the same. See, e.g., Geyen v. Marsh, F.d, (th Cir. ) ( The principal purpose of [the enactment of 0 s waiver] was to do away with the... [Larson] fiction[ ] surrounding sovereign immunity. ); Sea-Land Serv., Inc. v. Brown, 00 F.d, (d Cir. ) (observing the APA amendment in effect repealed the Larson exception); Schnapper v. Foley, F.d, (D.C. Cir. ) ( The clarity and force of the legislative history leaves this court with no alternative but to conclude that all questions of U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

18 Case :-cv-00-rjb Document Filed 0/0/ Page of Neither exception is applicable here, however, because the military commission process already ensures that Al-Nashiri will have an opportunity to press his statutory and constitutional claims in Article III courts. Larson was guided by the concern that there be some vindication for a plaintiff aggrieved by ultra vires or unconstitutional executive action. Bartlett v. Bowen, F.d, 0 (D.C. Cir. ) (emphasis in original). Thus, as the Supreme Court concluded in Block v. North Dakota, U.S., - (), where Congress has already provided a judicial remedy for the ultra vires or unconstitutional conduct of federal officials, and does so by means of a precisely drawn, detailed statutory scheme revealing that Congress intended [it] to provide the exclusive means by which judicial review may be had, then invocation of Larson s exceptions to sovereign immunity for the purpose of fashioning alternative remedies is neither necessary nor appropriate. As explained above, the MCA, which establishes a detailed hierarchy for internal executive review of commission judgments and provides for exclusive judicial review in the D.C. Circuit, demonstrates an intent on the part of Congress that the issues raised by Al-Nashiri in this case instead be resolved within the structure of the MCA. Thus, the MCA preempts more general remedies, including suits brought under Larson. See Block v. North Dakota, U.S. at 0- (holding that the Quiet Title Act, and not the device of an officer suit under Larson, provides the exclusive means by which to challenge the United States title to real property); see also Alaska v. Babbitt, F.d, - (th Cir. ) (affirming dismissal on 0 the amenability of a federal officer to a suit for injunctive relief must be decided with reference to section 0 [of the APA], not Larson. ); but see, e.g., Chamber of Commerce v. Reich, F.d, - (D.C Cir. ) (applying the Larson analysis after the amendments). This concern was evident in Larson itself. There, the Court distinguished United States v. Lee, U.S. () a case in which the Supreme Court found sovereign immunity did not bar a constitutional challenge under the Takings Clause as a specific application of the constitutional exception to the doctrine of sovereign immunity. Larson, U.S. at. But Larson noted that when Lee was decided there clearly was no remedy available by which [plaintiff] could have obtained compensation for the taking of his land, id. at n., and noted that the availability of such a remedy would defeat a claim that there was an unconstitutional taking and, thus, sovereign immunity would bar the suit, id. at n.. See also Malone, U.S. at (describing Larson s interpretation of Lee). U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

19 Case :-cv-00-rjb Document Filed 0/0/ Page of sovereign-immunity grounds where suit was precluded by Quite Title Act); Knight v. State of New York, F.d (d Cir. ) (declining to invoke Larson as a basis for evading sovereign immunity, and find[ing] this course particularly attractive when... plaintiff has an adequate remedy in [state court] ). Accordingly, the Larson line of cases provides no avenue for circumventing the bar of sovereign immunity, even assuming this suit was not already barred under U.S.C. (e)(). 0 II. THE PRINCIPLES OF COMITY ARTICULATED IN SCHLESINGER V. COUNCILMAN REQUIRE THAT THE COURT DECLINE TO EXERCISE EQUITABLE JURISDICTION OVER AL-NASHIRI S CLAIMS. Even if this Court had subject-matter jurisdiction to consider Al-Nashiri s claims, the Court would nevertheless have to abstain from exercising equitable jurisdiction, in accordance with the principles of comity applied by the Supreme Court in Schlesinger v. Councilman, 0 U.S. (). Al-Nashiri alleges no great and immediate harm that, if it exists, warrants judicial intervention in the normal course of proceedings in his military commission. Congress has established a military commission system that grants alien unprivileged enemy belligerents facing trial an array of procedural protections and rights, including appointed military counsel, the right to retain private counsel, the right to seek discovery, and the right to appeal any adverse decision to the D.C. Circuit, a civilian tribunal completely independent of military control or influence. There is no reason to believe that this integrated system of military trial and Article III review is anything less than fully capable of vindicating Al-Nashiri s rights. Moreover, the sole factual issue Al-Nashiri raises here whether the terrorism offenses he is charged with occurred in the context of or were associated with a conflict subject to the laws of war is also central to the charges he faces in the military commission and, as required by the terms of the MCA, will be adjudicated as part of those proceedings. Considerations of comity, including respect for the judgment of Congress that the tribunal it has established is competent both to protect the rights of the accused and to consider questions of its own jurisdiction, and the expertise of military commissions in such matters of armed conflict and the U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

20 Case :-cv-00-rjb Document Filed 0/0/ Page 0 of 0 international law of war, dictate that the commission be allowed to render a final judgment before other courts weigh in on the same issue. Further, while Al-Nashiri contests the commission s jurisdiction over the offenses with which he has been charged, he raises no argument that Congress lacks constitutional power to subject him to the jurisdiction of a military court. Councilman abstention is therefore required here. A. Principles of Councilman Abstention The question of equitable jurisdiction is 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, 0 U.S., (). In Councilman, the Supreme Court addressed that question in the context of a suit brought by an active-duty officer seeking to enjoin ongoing court-martial proceedings arising from his alleged sale and possession of marijuana. 0 U.S. at -0,. Councilman argued that the court-martial lacked jurisdiction to try him because the charges against him were not service connected, and therefore that he would suffer great and irreparable damage, and might be deprived of his liberty without due process, if his court-martial were not enjoined. Id. at -. The Supreme Court rejected Councilman s arguments, holding that the balance of factors governing exercise of equitable jurisdiction by the federal courts normally weighs against intervention, by injunction or otherwise, in pending court-martial proceedings. Id. at 0. The Court first rejected Councilman s argument that he would incur great and irreparable damage if his court-martial proceeded. Id. at. Rather, observing that Councilman might be acquitted of the charges against him, and that a conviction, if any, might In Councilman, the Supreme Court rejected the argument that Congress had intended to bar subject-matter jurisdiction over suits seeking to enjoin court-martial proceedings when it revised Article of the Uniform Code of Military Justice. 0 U.S. at. Here, in contrast, Congress has expressly barred subject-matter jurisdiction in this case pursuant to U.S.C (e)(). See Section I.A, supra. 0 U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0

21 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 be reversed on appeal, the Court concluded that Councilman was threatened with (no) injury other than that incidental to every criminal proceeding brought lawfully and in good faith, which could not by itself be considered irreparable in the special legal sense of that term. Id. at (quoting Douglas v. City of Jeannette, U.S., () (alteration in original), and Younger v. Harris, 0 U.S., ()). The Court next concluded that the same considerations of comity that preclude equitable intervention by federal courts into state criminal prosecutions unless the harm sought to be averted is both great and immediate, and cannot be eliminated by... defense against a single criminal prosecution, Councilman, 0 U.S. at (quoting Fenner v. Boykin, U.S. 0, ()), apply in equal measure to the balance governing the propriety of equitable intervention in pending court-martial proceedings. Id. at. Also applicable, the Court stated, are the considerations that underlie the requirement of exhaustion of administrative remedies, specifically, the need to allow agencies possessed of special competence to develop the facts and apply the law in which they are peculiarly expert. Id. at. Further counseling against intervention, the Court continued, were the specialized laws and traditions developed during the military s long history, and the respect for duty and discipline on which the military must insist in order to perform its vital role. Id. at. Of particular relevance for purposes of this case, the Court observed further that, in enacting the Uniform Code of Military Justice, Congress attempted to balance these military necessities against the equally significant interest of fairness to servicemen charged with military offenses, and to that end created an integrated system of military courts and review procedures, a critical element of which [was] the Court of Military Appeals, consisting of civilian judges completely removed from all military influence or persuasion. Id. at - (internal quotation marks and citations omitted). The Court explained that the judgment of Congress embodied in this scheme, that the military court system generally is adequate to and responsibly will perform its assigned task... must be respected, and accordingly it must be assumed that the military court system will vindicate servicemen s constitutional rights. Id. at. The Court held U.S. Department of Justice P.O. Box Washington, DC 00 (0) -0