United States v. Al-Nashiri

191 F.Supp.3d 1308

UNITED STATES of America, Appellant

v.Abd Al Rahim Hussayn Muhammad AL-NASHIRI, Appellee

CMCR 14-001

United States Court of Military Commission Review.

June 9, 2016

Brigadier General Mark S. Martins, U.S. Army, argued the cause for appellant. With him on the briefs was Danielle S. Tarin.

Richard Kammen argued the cause for appellee. With him on the briefs were Commander Brian L. Mizer, JAGC, U.S. Navy, and Lieutenant Commander Jennifer Pollio, JAGC, U.S. Navy.

BEFORE THE COURT Mitchell, Presiding Judge, Silliman, Deputy Chief Judge, and King, Appellate Judge

PUBLISHED OPINION OF THE COURT

SILLIMAN, Deputy Chief Judge:

On August 11, 2014, the military commission judge (military judge) dismissed Specification 2 of Charge IV (Terrorism), Charge VII (Attacking Civilians), Charge VIII (Attacking Civilian Objects), and Charge IX (Hijacking or Hazarding a Vessel or Aircraft) ("the charges") after appellee moved to dismiss the charges for lack of jurisdiction. App. 241-45, see id . at 465-71. Appellant filed an interlocutory appeal of that ruling. We reverse the military judge's decision and reinstate the charges.

Statement of the Case

On August 18, 2014, appellant filed a notice of interlocutory appeal under 10 U.S.C. § 950d(a)(1) of the decision to dismiss the charges. On October 10, 2014, we held that the appeal was timely filed under 10 U.S.C. § 950d(e). United States v. Al – Nashiri , 62 F.Supp.3d 1305 (USCMCR 2014) (per curiam). On October 14, 2014, appellee filed a petition for a writ of mandamus and prohibition in the Court of Appeals for the District of Columbia Circuit seeking disqualification of the two military appellate judges then on the panel assigned to hear the appeal. Appellee contended their assignment by the Secretary of Defense to the USCMCR violated the Commander-in-Chief Clause and the Appointments Clause of the U.S. Constitution. See Appellee's Pet. for Writ of Mandamus & Prohibition, In re Al – Nashiri , No. 14–1203 (D.C.Cir. Oct. 14, 2014). On that same day, appellee filed a motion in our court urging that we stay further proceedings in his case until such time as the Court of Appeals took action on his petition. On October 14, 2014, we denied appellee's motion to stay proceedings and on October 16, 2014, ordered oral argument on appellant's interlocutory appeal to be held on November 13, 2014. However, on the eve of the oral argument, the Court of Appeals granted a stay in the proceedings for the purpose of giving it sufficient opportunity to consider appellee's mandamus petition. Order, In re Al – Nashiri , No. 14–1203 (D.C.Cir. Nov. 12, 2014).

On June 23, 2015, the Court of Appeals for the District of Columbia Circuit denied the appellee's mandamus petition, remanded the case back to our court, and lifted its stay on our proceedings. In re Al – Nashiri , 791 F.3d 71 (D.C.Cir.2015) ; Order, In re Al – Nashiri , 791 F.3d 71 (D.C.Cir.2015). On June 26, 2015, we granted appellant's unopposed request to hold this case in abeyance pending possible presidential nomination and Senate confirmation of the military appellate judges. See In re Al – Nashiri, 791 F.3d at 86 (suggesting such nomination and confirmation would "put to rest any Appointments Clause questions"). On March 14, 2016, the Senate received the nominations of Judges Mitchell and King to our court.¹ The Senate confirmed Judges Mitchell and King on April 28, 2016,² and they were sworn as USCMCR judges on May 2, 2016. On May 18, 2016, we lifted our stay of the proceedings and appellant's interlocutory appeal, and on June 2, 2016, we heard oral argument.

Issue Presented

Appellant appeals the military judge's pretrial decision to dismiss the charges because of a lack of subject-matter jurisdiction; that is, the military judge found that the government failed to establish that the offenses were committed in the context of and associated with hostilities. We have jurisdiction because the military judge's ruling "terminates proceedings of the military commission with respect to a charge or specification." Rule for Military Commissions (R.M.C.) 908(a)(1), 2012 Manual for Military Commissions (M.M.C.).

Military commission jurisdiction has two components, personal and subject matter. Personal jurisdiction relates to whether an accused is an alien unprivileged enemy belligerent (AUEB)³ and therefore a person subject to the Military Commissions Act (MCA) who may be prosecuted by a military commission, see 10 U.S.C. §§ 948d, 948a(7) ; whereas subject-matter jurisdiction relates to whether the charged offenses are made punishable in MCA Subchapter VIII, see 10 U.S.C. §§ 948d, 950p -t. The parties disagree as to which was the predicate for the military judge's dismissal of the charges.

Appellee argues the military judge did not abuse his discretion when he dismissed the charges and urges us to dismiss the appellant's appeal. See Appellee's Br. (Oct. 14, 2014); Appellee's Reply Br. (Oct. 24, 2014). Appellee contends that the basis of the dismissal was subject-matter jurisdiction and defines the scope of the issue to be "the ostensible nexus of the bombing of the MV Limburg to United States interests and whether that bombing fell within the scope of ‘hostilities' against the United States within the meaning of the Military Commissions Act and the law of war." Appellee's Br. 17 n.55. Appellant argues three points. First, the military judge "concluded that the government failed to request an evidentiary hearing or otherwise prove specific facts to support its assertion of jurisdiction, one of which was that hostilities, as that term is defined in 10 U.S.C. § 948a(9), against the United States existed." Appellant's Br. 12 (Sept. 29, 2014) (internal quotation marks and citation omitted). Second, appellant asserts that "[a]lthough unclear, [the military judge] also suggested he dismissed the charges, at least in part, because he concluded the government failed to establish personal jurisdiction." Id . Appellant argues that it has previously offered and continues to welcome an evidentiary hearing to establish personal jurisdiction. See id . at 37–40. Third, appellant contends that, with regard to subject-matter jurisdiction, the military judge improperly required appellant to prove an element of the charges, i.e., that the offenses were committed in the context of and associated with hostilities, at a pretrial session. See id . at 20–24.

Based upon our review of the record, the parties' briefs, and the applicable case law we conclude that the military judge improperly required appellant to offer pretrial evidence to establish that the offenses were committed in the context of and associated with hostilities and thus erred when he dismissed the affected charges.

The Military Judge's Findings

The military judge found that appellant proffered the existence of eighteen facts to establish jurisdiction, without offering any evidence in support of the proffer, and appellee acknowledged five facts that tended to support jurisdiction. See App. 243-44. The military judge concluded:

The Commission need not reach any conclusions of law based on both parties' legal arguments raised in their written filings and oral arguments. While the facts argued by the Prosecution may be easily susceptible of proof, the Prosecution failed to request an evidentiary hearing and offer any documentary or testimonial evidence into the record to factually support their assertion of jurisdiction as to the charges and specification involving the MV Limburg. ⁴ The Prosecution has thus failed to meet its burden of persuasion in this interlocutory matter. (See R.M.C. 905c(2)(B).) Accordingly, AE 168 and AE 241 are GRANTED [and the charges are dismissed].

App. 245.

After granting the government's subsequent motion for reconsideration of his dismissal of the charges, the military judge ruled that the charges remained dismissed without prejudice, and further explained his decision to dismiss the charges as follows:

[T]he Prosecution must establish by a preponderance of the evidence the last statutory element for each offense, which is whether "the conduct took place in the context of and was associated with hostilities."

The Prosecution was given multiple opportunities with the filing of two sets of pleadings and during two separate oral arguments to provide a factual basis for the Government's assertion of subject matter jurisdiction over the charged offenses. The Prosecution continually declined the opportunity, instead informing the Commission it would provide the factual basis in its presentation of evidence to the panel on the merits. These decisions were fatal as to the charged offenses, which are the subject of AE 168 and AE 241.

The Prosecution's request for oral argument is DENIED . The Prosecution's request for reconsideration of the Commission's order in AE 168G/AE 241C is GRANTED . Upon reconsideration, the Prosecution's request to conduct an evidentiary hearing for the purpose of establishing subject matter and personal jurisdiction over the Accused as to [the charges] is DENIED .

App. 469-71 (footnotes and paragraph numbers omitted).

Standard of Review

We review de novo whether the military judge had authority to dismiss the charges without holding an evidentiary hearing or accepting appellant's proffers, or without a stipulation from the parties; however, "we are nonetheless mindful that the trial court's subsidiary factual findings are to be upheld unless clearly erroneous." United States v. Yunis , 859 F.2d 953, 958 (D.C.Cir.1988), aff'd , 924 F.2d 1086 (D.C.Cir.1991).

Subject-Matter Jurisdiction Not Implicated

Appellee asserts that the issue of the nexus of the charged conduct to hostilities with the United States is jurisdictional, and, as such, this threshold determination affects the timing of his motion to dismiss for lack of such nexus and shifts the burden of proof from appellee to the appellant.⁵ See Appellee's Br. "Because the consequences that attach to the jurisdictional...