In Re: Abd Al-Rahim Hussein Al-Nashir

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2016 Decided August 30, 2016

No. 15-1023

IN RE: ABD AL-RAHIM HUSSEIN MUHAMMED AL-NASHIRI,
PETITIONER

On Petition for Writ of Mandamus
and Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01207)
______

Consolidated with 15-5020

Michel D. Paradis, Counsel, Office of the Chief Defense
Counsel, argued the cause for petitioner-appellant. With him
on the briefs was Richard Kammen. Nancy Hollander entered
an appearance.

Somnath Raj Chatterjee was on the brief for amici curiae
Retired Military Admirals and Generals in support of
appellant.

Robert Barton was on the brief for amicus curiae
Professor David W. Glazier, Loyola Law School of Los
Angeles, in support of petitioner-appellant.
 2

David H. Remes and John T. Parry were on the brief for
amicus curiae Physicians for Human Rights in support of
petitioner.

Eric S. Montalvo was on the brief for amicus curiae
National Institute of Military Justice in support of petitioner.

Joseph F. Palmer, Attorney, U.S. Department of Justice,
argued the cause for respondent-appellee. With him on the
brief were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Matthew M. Collette, Sonia K. McNeil,
Michael Shih, and John F. De Pue, Attorneys, and Steven M.
Dunne, Chief, Appellate Unit.

Before: TATEL and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge TATEL.

GRIFFITH, Circuit Judge: Abd Al-Rahim Hussein
Muhammed Al-Nashiri is the alleged mastermind of the
bombings of the U.S.S. Cole and the French supertanker the
M/V Limburg, as well as the attempted bombing of the U.S.S.
The Sullivans. Together, the completed attacks killed 18 crew
members and injured dozens more. The government charged
Al-Nashiri with nine offenses for his role in the attacks and
convened a military commission to try him. His trial, and any
subsequent appeals, will be governed by the Military
Commissions Act, in which Congress strengthened the
procedural protections and review mechanisms for military
commissions in response to the Supreme Court’s guidance in
 3

Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Al-Nashiri now
seeks to avoid the structure Congress has created. He petitions
for a writ of mandamus to dissolve the military commission
convened to try him and appeals the district court’s denial of
his motion to preliminarily enjoin that trial. We deny the
petition for mandamus relief and affirm the district court.

I

A

At this pretrial stage, we recount the details of Al-
Nashiri’s alleged offenses based on the information provided
in the government’s charges. Al-Nashiri, a Saudi national, is a
member of al Qaeda who orchestrated the attempted bombing
of The Sullivans in January 2000 and the successful bombings
of the Cole in October 2000 and the Limburg in October
2002.

Al-Nashiri met with Osama bin Laden and other senior
members of al Qaeda in 1997 or 1998 to plan a “boats
operation” that would attack ships in the Arabian Peninsula.
The government argues that while bin Laden was planning the
“boats operation,” he was also coordinating the “planes
operation” that would unfold on September 11, 2001. At bin
Laden’s direction, Al-Nashiri and his alleged co-conspirator,
Walid bin Attash, traveled to Yemen around 1998 to prepare
for the boats operation. Al-Nashiri scouted the region and
monitored ship traffic. He and his co-conspirators ultimately
focused on Aden Harbor and bought and stored explosives to
carry out an attack there. In 1999, after bin Attash was
arrested, bin Laden instructed Al-Nashiri to take control of the
operation. Al-Nashiri and his co-conspirators recruited others
to the cause, bought a boat, and obtained false identification
documents.
 4

Under Al-Nashiri’s direction, his co-conspirators steered
an explosive-filled boat toward The Sullivans in January 2000
while the warship was refueling. But the boat carrying the
explosives foundered in Yemen’s Aden Harbor, thwarting the
plan. Al-Nashiri and his co-conspirators recovered the boat
and confirmed that the explosives could be used in future
attacks. Sometime after the failed attack, Al-Nashiri returned
to Afghanistan to meet with bin Laden and other high-ranking
members of al Qaeda and to receive explosives training from
an al Qaeda expert.

By the summer of 2000, Al-Nashiri had returned to
Yemen to carry out preparations for a second attack in Aden
Harbor. He and his co-conspirators rented a house from which
they could surveil the harbor, repaired and tested the attack
boat, filled it with explosives, and arranged for the attack to
be videotaped. Sometime around September 2000, Al-Nashiri
reported to bin Attash—who by then had been released from
jail and was in Afghanistan—that the operation was ready and
that he had chosen suicide bombers to carry it out. Before the
attack, Al-Nashiri returned to Afghanistan at bin Laden’s
direction and told him the bombing was imminent.

Adhering to Al-Nashiri’s instructions, in October 2000
the suicide bombers launched the boat—again filled with
explosives—and piloted it toward the Cole, which was
refueling in Aden Harbor. The bombers gave friendly gestures
to crew members and steered their boat alongside the Cole,
where they detonated the explosives. The blast killed 17 crew
members and injured at least 37, and left a hole in the Cole’s
side measuring about 30 feet in diameter.

After the attack, Al-Nashiri began planning another
bombing. He and his co-conspirators acquired another boat
 5

and explosives, with Al-Nashiri directing the transfer of
money to fund the attack. In October 2002, suicide bombers
under Al-Nashiri’s direction drew their explosive-filled boat
alongside the French supertanker the Limburg near the port of
Al Mukallah, Yemen. The explosion blasted a hole in the
ship’s hull, killing one crew member and injuring 12. Some
90,000 barrels of oil also spilled from the tanker into the Gulf
of Aden.

Local authorities arrested Al-Nashiri in Dubai in 2002
and turned him over to U.S. custody. He was transferred to
the Guantanamo Bay Naval Base in 2006. A year later, a
Combatant Status Review Tribunal determined that Al-
Nashiri was detainable as an “enemy combatant” under the
Authorization for Use of Military Force that Congress had
passed and the President had signed in response to the attacks
of September 11, 2001. Al-Nashiri v. MacDonald, 741 F.3d
1002, 1005 (9th Cir. 2013). The AUMF permits the President
to use “all necessary and appropriate force” against the
“nations, organizations, or persons” he determines were
responsible for the 9/11 attacks. Pub. L. No. 107-40, § 2(a),
115 Stat. 224, 224 (2001). Al-Nashiri filed a petition for a
writ of habeas corpus in the United States District Court for
the District of Columbia in 2008, challenging various aspects
of his detention at Guantanamo. Three years later, with Al-
Nashiri’s habeas petition still pending, the Defense
Department convened a military commission to try him for
offenses including terrorism, murder in violation of the law of
war, and attacking civilians. In re Al-Nashiri, 791 F.3d 71, 75
(D.C. Cir. 2015). The government is seeking the death
penalty.
 6

B

The current system of military commissions at
Guantanamo Bay “is the product of an extended dialogue
among the President, the Congress, and the Supreme Court.”
Al-Nashiri, 791 F.3d at 73. After the passage of the AUMF in
September 2001, the President began detaining enemy
combatants and trying them by military commission at
Guantanamo. The Supreme Court considered the legality of
the commissions established by the President in Hamdan v.
Rumsfeld, 548 U.S. 557 (2006), and held that they exceeded
certain limits Congress had previously imposed on the
President’s authority. Specifically, the Court concluded that
the President’s commissions did not comply with procedural
protections set out in the Uniform Code of Military Justice
(UCMJ) and the Geneva Conventions. See id. at 613, 620-28.
But four Justices explained that “[b]ecause Congress []
prescribed these limits [on presidential authority], Congress
can change them, requiring a new analysis consistent with the
Constitution and other governing laws.” Id. at 653 (Kennedy,
J., concurring).

In response, Congress passed the Military Commissions
Act (MCA), which established a system of military
commissions and largely exempted them from the
requirements of the UCMJ and the Geneva Conventions. The
MCA created the Court of Military Commission Review
(CMCR) and empowered it to review judgments of military
commissions. Al-Nashiri, 791 F.3d at 74. Under the current
version of the MCA, as revised in 2009, the CMCR is
composed of military and civilian judges who sit in panels of
at least three. See 10 U.S.C. §§ 950d, 950f. It reviews
questions of both fact and law. See id. § 950f. Our court has
authority under the MCA to review military-commission
 7

convictions, as approved by the CMCR. Id. § 950g(a). We
may review the CMCR’s legal conclusions, including the
sufficiency of the evidence supporting the verdict. Id.
§ 950g(d).

The MCA provides that military commissions have
jurisdiction to try “alien unprivileged enemy belligerent[s],”
id. § 948c, for “any offense made punishable” by the MCA,
“whether such offense was committed before, on, or after
September 11, 2001.” Id. § 948d. The statute then lists 32
offenses that are “triable by military commission.” Id. § 950t.
It further provides that “[a]n offense specified in this
subchapter is triable by military commission under this
chapter only if the offense is committed in the context of and
associated with hostilities.” Id. § 950p(c). Hostilities are
defined as “any conflict subject to the laws of war.” Id.
§ 948a(9).

Al-Nashiri’s military-commission proceedings were
placed on hold in early 2015, when the presiding military
judge granted Al-Nashiri’s motion to abate the commission’s
proceedings while the government pursued interlocutory
appeals of two rulings. By statute, the government may take
an interlocutory appeal of any ruling by a military judge that
terminates commission proceedings on a charge or that
“excludes evidence that is substantial proof of a fact material
in the proceeding.” 10 U.S.C. § 950d(a)(1)-(2).

In the first interlocutory appeal, the government
contested the military judge’s dismissal in 2014 of the charges
stemming from the bombing of the Limburg. Al-Nashiri, 791
F.3d at 75. The military judge dismissed these charges
because the government had not introduced evidence to
support its claim that the military commission had jurisdiction
 8

over offenses related to an attack on a French vessel. Two
military judges and one civilian judge were assigned to hear
this appeal. In the second interlocutory appeal, the
government challenged a 2015 ruling by the military judge
that forbade it from introducing evidence that Al-Nashiri’s
actions endangered the lives of foreign nationals not onboard
the Cole.

Al-Nashiri sought a writ of mandamus from our court in
late 2014 to halt the first of these interlocutory appeals. He
argued in part that because the two military judges on his
CMCR appellate panel were “principal” officers, they should
have been appointed to the CMCR by the President and
confirmed by the Senate. See U.S. CONST. art. II, § 2, cl. 2;
Al-Nashiri, 791 F.3d at 82. Their assignment to the CMCR by
the Secretary of Defense violated the Constitution, Al-Nashiri
asserted. See Al-Nashiri, 791 F.3d at 82. We denied his
petition because Al-Nashiri had not shown he was clearly and
indisputably entitled to mandamus relief, but we observed that
the President and Senate could “put to rest any Appointments
Clause questions regarding the CMCR’s military judges” by
nominating and confirming them. Id. at 86. The President
chose to take that tack. At the government’s request—which
Al-Nashiri did not oppose—the CMCR stayed its proceedings
in both interlocutory appeals in June 2015 while the
confirmation process was underway.

The Senate confirmed two military judges in April 2016,
and the CMCR lifted its stay at the government’s request,
even though Al-Nashiri asked the CMCR to continue the stay.
See Order, United States v. Al-Nashiri, No. 14-001
(U.S.C.M.C.R. May 18, 2016). The CMCR then ruled on Al-
Nashiri’s interlocutory appeals in June and July 2016,
reversing the military judge’s dismissal of the charges related
 9

to the Limburg and its order excluding evidence. After the
resolution of these appeals, the government asked the military
commission to proceed. The commission granted that request,
and the government states that commission proceedings will
resume in September 2016. See Rule 28(j) Letter of Resp’t
(filed Aug. 5, 2016).

C

In the present case, Al-Nashiri does not challenge the
structural or procedural features of the military commissions
created by Congress. He does not assert that the commissions
are unconstitutional or that he was improperly classified as an
“alien unprivileged enemy belligerent” subject to their
jurisdiction. 10 U.S.C. § 948c. Instead, he argues that the
offenses for which he has been charged are not triable by a
military commission under the MCA because they were not
“committed in the context of and associated with hostilities.”
Id. § 950p(c). Because his alleged offenses had no nexus to
hostilities, he contends, they are not war crimes, the only type
of crime over which a military commission has jurisdiction
under the Constitution.

Al-Nashiri first advanced these arguments in a motion to
dismiss in 2012, but the military judge denied the motion
without prejudice. According to the military judge, the
existence of hostilities was a mixed question of law and fact.
To the extent that it was a pure question of law, he deferred to
what he called the “implicit” determinations of the political
branches that hostilities existed at the time of Al-Nashiri’s
alleged offenses. To the extent that the existence of hostilities
was a question of fact, the government would need to prove
that at trial.
 10

Before us, Al-Nashiri advances his claims in two separate
actions, which are consolidated here. The first began in 2014,
when Al-Nashiri received permission from our district court
to amend the habeas petition he filed in 2008. His amended
petition asked the district court to enjoin his trial by the
military commission and enter a declaratory judgment that his
conduct did not occur in the context of hostilities. He also
moved for a preliminary injunction to prevent his trial before
the military commission until the district court ruled on his
habeas petition. The government opposed this motion and
moved to hold the habeas action in abeyance to allow the
commission proceedings and corresponding appeals to run
their course. To support its motion to hold the case in
abeyance, the government relied upon Schlesinger v.
Councilman, 420 U.S. 738 (1975), where the Supreme Court
directed federal courts to generally refrain from enjoining
ongoing courts-martial. See id. at 756-58. According to the
government, Councilman likewise supports abstaining from
interfering with ongoing proceedings in a military
commission.

The district court found that adjudicating Al-Nashiri’s
habeas petition would unduly interfere with the proceedings
of the military commission and accordingly granted the
government’s motion to hold the case in abeyance pending
the resolution of his military-commission trial and any
subsequent appeals. Al-Nashiri v. Obama, 76 F. Supp. 3d 218,
221-23 (D.D.C. 2014). The district court then denied as moot
Al-Nashiri’s motion to preliminarily enjoin his military-
commission trial pending the resolution of his habeas petition.
Id. at 222 n.3. On appeal, Al-Nashiri challenges the district
court’s denial of preliminary injunctive relief, arguing
primarily that abstention was inappropriate and that the
 11

district court therefore should have decided his motion on the
merits.

The second action before us is a petition for a writ of
mandamus. Al-Nashiri asks us to dissolve the military
commission convened to try him, also on the ground that his
conduct did not take place in the context of hostilities.

We have jurisdiction to review the district court’s denial
of preliminary injunctive relief under 28 U.S.C. § 1292(a)(1). 1
We have jurisdiction to issue a writ of mandamus to a military
commission under the All Writs Act, 28 U.S.C. § 1651(a),
and the 2009 MCA, 10 U.S.C. § 950g(a). See Al-Nashiri, 791
F.3d at 76-78 (“[T]his Court has jurisdiction to issue a writ of
mandamus in aid of our appellate jurisdiction of military
commissions and the CMCR.”). We affirm the district court
and deny Al-Nashiri’s petition for mandamus relief.

1
We need not weigh in on whether the district court had
subject matter jurisdiction to adjudicate Al-Nashiri’s motion for
preliminary injunctive relief. Although the government suggests in
its briefing before us that Al-Nashiri’s claim does not sound in
habeas—a claim that calls into question the district court’s statutory
jurisdiction, see 28 U.S.C. § 2241(e)(2)—we affirm the denial of
that motion for reasons we explain below. Because the motion was
properly denied on threshold grounds, we need not consider the
district court’s subject matter jurisdiction any further. See Sinochem
Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
(“[A] federal court has leeway ‘to choose among threshold grounds
for denying audience to a case on the merits.’” (quoting Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999))).
 12

II

We first consider Al-Nashiri’s claim that the district court
erred in denying his motion to preliminarily enjoin his trial
before the military commission pending the resolution of his
habeas petition. The district court denied the motion based on
its decision to hold Al-Nashiri’s habeas petition in abeyance
pending the resolution of his case in the commission. Thus, to
determine whether this denial was proper, we must examine
whether the district court erred in staying Al-Nashiri’s habeas
case. 2

We emphasize at the outset that the question in this case
is not whether Al-Nashiri will be able to make his “hostilities”
argument to an Article III court. The MCA provides an appeal
as of right to our court. The question in this case is when that
argument to us may occur. The district court decided that
Article III review should occur at the time that Congress
contemplated: after any conviction and accompanying appeal
in the military system. We generally review such decisions to
stay a case “in favor of an ongoing proceeding” for abuse of
discretion. Handy v. Shaw, Bransford, Veilleux & Roth, 325
F.3d 346, 349 (D.C. Cir. 2003). “Whether the lower court

2
Finality principles would normally prevent us from
reviewing a decision to stay a case. But when the denial of a
preliminary injunction—which is a reviewable final judgment, see
28 U.S.C. § 1292(a)(1)—is based on the decision to stay a case, we
can review the propriety of the stay. See Privitera v. Cal. Bd. of
Med. Quality Assurance, 926 F.2d 890, 892-93 (9th Cir. 1991). To
treat a stay as unreviewable under such circumstances “would mean
that the denial of the preliminary injunction would be effectively
unappealable because a reversal on that issue would have no
effect.” Id. at 892.
 13

applied the proper legal standard in exercising that discretion,
however, is a question of law reviewed de novo.” Id. We
assume these standards apply here. We first ask whether the
district court “applied the proper legal standard” in deciding
to abstain from hearing Al-Nashiri’s habeas petition. In other
words, did the district court commit legal error in extending
the abstention principles established in Schlesinger v.
Councilman, 420 U.S. 738 (1975), which dealt with courts-
martial, to Al-Nashiri’s pretrial challenge to the subject matter
jurisdiction of a military commission? 3 Concluding that the
district court did not err as a matter of law, we then ask
whether its ultimate decision to abstain based on any
circumstances unique to Al-Nashiri’s case was appropriate.
Because we conclude that it was, we affirm the district court.

A

The district court did not err, as a matter of law, in
extending the principles announced in Councilman to Al-
Nashiri’s case.

3
As an initial matter, we note that Al-Nashiri and the
government disagree about the role that the hostilities requirement
plays in the MCA. Al-Nashiri argues that the existence of hostilities
is a legal question that does not hinge on the facts proved at trial.
For its part, the government contends that the hostilities
requirement is a “necessary element of the offense with which he
has been charged” that the government must prove at trial. We
assume Al-Nashiri is correct that the hostilities requirement is a
legal question going to the commission’s subject matter
jurisdiction. Even so, as we will explain, the district court did not
err in permitting the military commission to resolve the question in
the first instance.
 14

i

Federal courts generally “have a strict duty to exercise
the jurisdiction that is conferred upon them by Congress.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996).
This duty “is not, however, absolute.” Id. In the context of
criminal prosecutions, federal courts routinely decline to
adjudicate petitions that seek collateral relief to prevent a
pending prosecution. See, e.g., Henry v. Henkel, 235 U.S.
219, 228-30 (1914) (petition seeking habeas relief); JMM
Corp. v. District of Columbia, 378 F.3d 1117, 1120 (D.C. Cir.
2004) (petition seeking injunctive and declaratory relief). This
practice stems in part from a “basic doctrine of equity
jurisprudence,” which provides that courts should not exercise
their equitable discretion to enjoin criminal proceedings, as
long as the defendant has an adequate legal remedy in the
form of trial and direct appeal. Jarkesy v. SEC, 803 F.3d 9, 26
(D.C. Cir. 2015); see also Deaver v. Seymour, 822 F.2d 66,
68-69 (D.C. Cir. 1987). Thus, where the issue the petitioner
challenges can be litigated in pretrial motions and raised as a
defense at trial, federal courts typically require the petitioner
to navigate that process instead of skirting it. See Jarkesy, 803
F.3d at 26.

In Councilman, the Supreme Court extended this basic
doctrine to a new context: courts-martial. The case involved a
court-martial convened to try an Army officer for selling and
possessing marijuana. At the time, Supreme Court precedent
required that an alleged offense be “service connected” to be
constitutionally triable by court-martial. See O’Callahan v.
Parker, 395 U.S. 258, 272-73 (1969) (establishing “service
connection” rule), overruled by Solorio v. United States, 483
U.S. 435 (1987). Councilman filed suit in district court to
enjoin the court-martial from proceeding, arguing that the
 15

military lacked jurisdiction to try him because his alleged
offense was not connected to his service in the army. See
Councilman, 420 U.S. at 741. The district court granted the
injunction, and the Tenth Circuit affirmed. Id. at 739-40. But
the Supreme Court reversed, holding that “when a serviceman
charged with crimes by military authorities can show no harm
other than that attendant to resolution of his case in the
military court system, the federal district courts must refrain
from intervention, by way of injunction or otherwise.” Id. at
758.

The Court grounded its decision in the corresponding
abstention doctrine for state criminal prosecutions announced
four years earlier in Younger v. Harris, 401 U.S. 37 (1971).
Abstention in favor of ongoing state criminal proceedings in
Younger was based on two considerations: the traditional rule
that courts of equity should not enjoin criminal prosecutions
where an adequate remedy at law exists, see id. at 43-44, and
interests of “comity,” perhaps better described in that case as
“federalism,” id. at 44-45. Interference in ongoing state
proceedings would disrupt the careful balance between state
and federal power. See id.

The Councilman Court acknowledged that the “peculiar
demands of federalism” were not applicable to courts-martial,
but it explained that “factors equally compelling” justified its
decision to allow courts-martial to run their course without
interference by the federal courts. 420 U.S. at 757. As the
Supreme Court explained in Hamdan v. Rumsfeld, 548 U.S.
557 (2006), Councilman relied on two “comity” factors other
than federalism, focusing on the military interests advanced
by allowing courts-martial to proceed uninterrupted and on
the adequacy of the court-martial system in protecting service
members’ rights:
 16

First, military discipline and, therefore, the efficient
operation of the Armed Forces are best served if the
military justice system acts without regular interference
from civilian courts. Second, federal courts should
respect the balance that Congress struck between military
preparedness and fairness to individual service members
when it created “an integrated system of military courts
and review procedures, a critical element of which is the
Court of Military Appeals consisting of civilian judges
completely removed from all military influence or
persuasion . . . .”

Id. at 586 (quoting Councilman, 420 U.S. at 758) (internal
citations omitted). As the Court later explained, “abstention in
the face of ongoing court-martial proceedings is justified by
our expectation that the military court system established by
Congress—with its substantial procedural protections and
provision for appellate review by independent civilian
judges—‘will vindicate servicemen’s constitutional rights.’”
Id. (quoting Councilman, 420 U.S. at 758).

In Hamdan, the Supreme Court considered whether to
extend the principles set out in Councilman to abstain from
adjudicating a Guantanamo detainee’s challenge to his trial
before a military commission. To reiterate, the commission
set to try Hamdan was convened by the President without
specific congressional authorization. In that context, the Court
declined to abstain, concluding that neither of Councilman’s
comity considerations was present. As to the first, the Court
said simply that Hamdan was “not a member of our Nation’s
Armed Forces, so concerns about military discipline do not
apply.” Id. at 587. And as to the second, the Court explained
that the military commission trying Hamdan was “not part of
the integrated system of military courts, complete with
 17

independent review panels, that Congress has established.” Id.
Unlike Councilman, the Court emphasized, Hamdan had no
right to appeal a conviction to a review body that was
“structural[ly] insulat[ed] from military influence.” Id. Rather,
any conviction would be reviewed only by Executive Branch
officials: first a panel of three military members selected by
the Secretary of Defense, then the Secretary himself, and
finally the President. Id. And because these review bodies
lacked the structural independence of the Court of Appeals for
the Armed Forces, whose civilian judges review court-martial
convictions, they bore “insufficient conceptual similarity to
state courts to warrant invocation of abstention principles.” Id.
at 588. The Court further explained that the government had
not identified any other “important countervailing interest”
that justified abstaining. Id. at 589 (quoting Quackenbush,
517 U.S. at 716).

The Hamdan Court instead determined that Ex parte
Quirin, 317 U.S. 1 (1942), was the most relevant precedent.
In Quirin, rather than decline to intervene in ongoing
proceedings of a military commission, the Court convened a
special Term to hear the case and expedited its review,
explaining that the issues were of great public importance. See
id. at 19. The Hamdan Court closed its discussion by noting:
“While we certainly do not foreclose the possibility that
abstention may be appropriate in some cases seeking review
of ongoing military commission proceedings (such as military
commissions convened on the battlefield), the foregoing
discussion makes clear that, under our precedent, abstention is
not justified here.” 548 U.S. at 590.
 18

ii

Much has changed since Hamdan. Within four months of
the Supreme Court’s opinion—and in direct response to it—
Congress passed the MCA, which established enhanced
procedural protections and rigorous review mechanisms for
military commissions. The committee report accompanying
the House version of the MCA indicated that the legislation
was an effort to respond to Hamdan, in which “[t]he Court []
suggested that the President could ask the United States
Congress to authorize commission rules that diverge from the
UCMJ, provided that they were consistent with the
Constitution and other laws.” H.R. REP. NO. 109-664, pt. 1, at
4-5 (2006). And when signing the 2006 MCA, President Bush
explained that the Supreme Court had ruled that the military
commissions he had established after September 11 “needed
to be explicitly authorized by the United States Congress.”
See Statement by President George W. Bush upon Signing S.
3930, 2006 U.S.C.C.A.N. S61 (Oct. 17, 2006). The President
explained that he “asked Congress for that authority, and they
[] provided it” by passing the MCA. Id.

Al-Nashiri and amici urge that despite the significant
changes enacted in the MCA, abstention remains as
inappropriate here as it was in Hamdan. They argue that Al-
Nashiri, like Hamdan, is not a member of the Armed Forces,
and commissions are fundamentally different from courts-
martial. By contrast, the government contends that the MCA
established the rigorous system of review found lacking in
Hamdan and that the district court was warranted in allowing
the military commission to proceed. It insists that while
Councilman does not directly control, it is the closest
analogue in our jurisprudence, because comity considerations
 19

“equally compelling” as those in Councilman, 420 U.S. at
757, point in favor of abstention here.

To determine whether “equally compelling” factors exist
here, we must identify the precise role played by
Councilman’s two comity considerations. Evaluating those
considerations, we conclude that 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. The comity considerations in
Councilman established both of these elements. With respect
to adequacy, the Court did not evaluate the on-the-ground
performance of courts-martial in protecting service members’
rights. Instead, it “assumed” the sufficiency of the structure
Congress created, with its substantial procedural protections
and provision for appellate review by judges insulated from
military influence. Id. at 758; see also Hamdan, 548 U.S. at
586 (characterizing Councilman’s reasoning as such). 4 And as

4
Although the Court in Councilman assumed that the
alternative judicial system at issue would adequately protect
defendants’ rights, we doubt that it would have reached the same
result if the plaintiff had identified flaws in that system that would
prevent him from fully litigating his defenses. Indeed, case law
indicates that abstention is appropriate only where a plaintiff has “a
full and fair opportunity to litigate” his claims in the alternative
forum. JMM Corp. v. District of Columbia, 378 F.3d 1117, 1127
(D.C. Cir. 2004) (quoting Ohio Civil Rights Comm’n v. Dayton
Christian Sch., Inc., 477 U.S. 619, 627 (1986)); see also Browder v.
City of Albuquerque, 787 F.3d 1076, 1084 (10th Cir. 2015)
(Gorsuch, J., concurring) (explaining that abstention is
inappropriate where state processes will not remedy the plaintiff’s
injury because they are inadequate either on their face or in
practice).
 20

for importance, the Court explained that abstention would
serve a vital interest by permitting the military to discipline
soldiers without immediate interference by federal courts.
Councilman, 420 U.S. at 757.

The Court’s emphasis on these two considerations made
sense in light of its abstention jurisprudence, developed in the
context of state-court proceedings. That precedent made clear
that abstention was appropriate only (1) where the petitioner
would have an adequate remedy in the alternative forum, see
Kugler v. Helfant, 421 U.S. 117, 124 (1975) (“The policy of
equitable restraint [in favor of state criminal proceedings] is
founded on the premise that ordinarily a pending state
prosecution provides the accused a fair and sufficient
opportunity for vindication of federal constitutional rights.”);
Younger, 401 U.S. at 45 (“The accused should first set up and
rely upon his defense in the state courts . . . unless it plainly
appears that this course would not afford adequate
protection.” (quoting Fenner v. Boykin, 271 U.S. 240, 243-44
(1926))), and (2) where abstention would “clearly serve an
important countervailing interest,” Allegheny Cty. v. Frank
Mashuda Co., 360 U.S. 185, 189 (1959), such as reducing
friction between federal and state governments, see Younger,
401 U.S. at 44 (emphasizing the need to “respect [] state
functions” by avoiding pretrial intervention in state criminal
prosecutions). The Councilman Court simply applied these
central considerations to the context of courts-martial.

Taking our cue from Councilman, then, we ask two
questions to determine whether any sufficiently “compelling”
factors justified the district court’s decision to abstain. First,
we consider whether the system enacted to adjudicate Al-
Nashiri’s guilt will adequately protect his rights. And second,
we examine whether an “important countervailing interest”
 21

justifies the decision to avoid the district court adjudicating a
pretrial challenge to the subject matter jurisdiction of a
military commission created under the MCA.

iii

To answer the first question, we are convinced that the
MCA’s review structure is adequate because it is virtually
identical to the review system for courts-martial approved by
the Court in Councilman. In the MCA, Congress established
an “integrated” scheme dictating how enemy belligerents are
to be tried and obtain appellate review, Councilman, 420 U.S.
at 758, and two Presidents sanctioned this approach—
President Bush in 2006, when the MCA was first enacted, and
President Obama in 2009, when it was revised. Pursuant to
that structure, Al-Nashiri faces a trial with a military judge
presiding and a “jury” that, in capital cases, generally consists
of twelve military officers known as “members” of the
military commission. 10 U.S.C. §§ 948m, 949m(c). If he is
convicted, the convening authority—the Defense Department
official who initially referred the case to trial—may review
the guilty finding and set it aside, or reduce it to a finding of
guilty of a lesser-included offense. Id. § 950b. The convening
authority must review a sentence to approve, disapprove,
commute, or suspend it in whole or in part. Id. A final guilty
finding, as modified by the convening authority, will then be
reviewed by the CMCR unless the defendant properly waives
this right of review. Id. §§ 950f, 950c. The CMCR is
composed of both military and civilian judges and has the
power to review factual and legal questions alike. Id. § 950f.
The defendant may appeal the CMCR’s decision to our court,
and we are empowered to review all questions of law,
including the sufficiency of the evidence. Id. § 950g. Finally,
 22

our ruling can be challenged via petition for writ of certiorari
in the Supreme Court. Id. § 950g(e).

These review structures “closely (and intentionally)
mirror[] the current structure for . . . review of courts-
martial.” Stephen I. Vladeck, Exceptional Courts and the
Structure of American Military Justice, in GUANTANAMO AND
BEYOND 163, 175 (Fionnuala Ni Aolain & Oren Gross eds.,
2013). Not only does the composition of the commission itself
closely mirror that of a court-martial—both have twelve
members in capital cases and a presiding military judge—but
the structure of appellate review is virtually identical across
the two systems. The “scope of the CMCR’s post-conviction
review is a word-for-word copy” of the portion of the UCMJ
that sets out the authority of each service’s Court of Criminal
Appeals, the military body that reviews court-martial
convictions. Id. Compare 10 U.S.C. § 950f, with id. § 866.
Similarly, the authority given to this court to review the
CMCR’s decision is as broad as the authority that the UCMJ
gives the Court of Appeals for the Armed Forces, the tribunal
that Councilman approved as sufficiently “removed from []
military influence or persuasion,” 420 U.S. at 758 (citing
Noyd v. Bond, 395 U.S. 683, 694-95 (1969)). Compare 10
U.S.C. § 950g(d), with id. § 866(c).

The similarity of the two systems’ review mechanisms
strongly suggests that, if the review procedure for courts-
martial is considered adequate to protect defendants’ rights,
the same should be true of the review procedure for military
commissions. Indeed, in one sense the review structure for
military commissions is more insulated from military
influence than is the structure for courts-martial. The judges
on our court, unlike those on the Court of Appeals for the
Armed Forces, enjoy Article III’s guarantees of life tenure
 23

and salary protection, further assuring that our review is not
swayed by political pressures. See Hamdan, 548 U.S. at 675-
76 (Scalia, J., dissenting).

We do not overlook the fact that although the review
structures are virtually identical, the evidentiary and
procedural rules in a military-commission trial differ in some
regards from those in courts-martial. Even so, Al-Nashiri’s
trial before a military commission will include a number of
significant procedural and evidentiary safeguards. Among
other things, he will have the right to be represented by
counsel, 10 U.S.C. § 949c, be presumed innocent, id. § 949l,
obtain and offer exculpatory evidence, id. § 949j, call
witnesses on his behalf, id., and challenge for cause any of the
members of the military commission and the military judge,
id. § 949f. In fact, Al-Nashiri does not argue before us that
any evidentiary or procedural defects will prevent the military
commission and various appellate bodies from fully
adjudicating his defense that his conduct occurred outside the
context of hostilities. Cf. JMM Corp., 378 F.3d at 1127 (“For
Younger abstention to be appropriate in the face of pending
state proceedings, the federal plaintiff must ‘have a full and
fair opportunity to litigate’ its constitutional claims in those
proceedings.” (quoting Ohio Civil Rights Comm’n, 477 U.S.
at 627)). We therefore conclude that, at least where a
defendant identifies no such defect, the MCA’s “integrated
system of military courts and review procedures,”
Councilman, 420 U.S. at 758, is sufficiently adequate to point
in favor of abstention.

Al-Nashiri argues against this conclusion by identifying
various features of military commissions that, in his view,
suggest that they are deficient as compared to the court-
martial system. According to Al-Nashiri, the commissions
 24

established by the MCA lack the established track record that
courts-martial had at the time of Councilman. He also points
to two instances in which our court overturned military-
commission judgments on appeal. But Al-Nashiri does not
argue that these features render military commissions
unlawful or will prevent him from presenting a full defense.
Instead, by pointing to these alleged shortcomings, Al-Nashiri
asks us to do what the Supreme Court notably did not do in
Councilman: determine whether pretrial intervention is
warranted by examining the on-the-ground performance of
the system that Congress and the Executive have established.
See 420 U.S. at 758 (“[I]mplicit in the congressional scheme
embodied in the [UCMJ] is the view that the military court
system generally is adequate to and responsibly will perform
its assigned task. We think this congressional judgment must
be respected and that it must be assumed that the military
court system will vindicate servicemen’s constitutional
rights.” (emphases added)). In the absence of any claim that
the shortcomings to which Al-Nashiri points render the
congressional scheme unlawful or will prevent Al-Nashiri
from fully defending himself, the district court did not err in
deeming that scheme adequate.

iv

We next ask whether an “important countervailing
interest” permits a federal court to decline to adjudicate a
defendant’s pretrial claim that a military commission lacks
subject matter jurisdiction to try his offense. It does. By
providing for direct Article III review of Al-Nashiri’s
jurisdictional challenge on appeal from any conviction in the
military system, Congress and the President implicitly
instructed that judicial review should not take place before
that system has completed its work. And where this judgment
 25

was made out of concern for national security needs—an
arena in which the political branches receive wide
deference—we must follow their directive. We turn now to
examining the vital interest we identify: 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. 5 Comity
demands restraint in such circumstances, just as it requires
federal courts to avoid interfering with the functions of states
and the military. See, e.g., Wash. Research Project, Inc. v.
Dep’t of Health, Educ. & Welfare, 504 F.2d 238, 253 (D.C.
Cir. 1974) (“Considerations of inter-branch comity impel us
to withhold coercive orders that are not demonstrably
necessary.” (emphasis added)).

Congress—with the approval of two Presidents—
exercised its legitimate prerogatives when it decided, in
response to Hamdan, that the ordinary federal court process
was not suitable for trying certain enemy belligerents.
Therefore, Congress crafted a separate scheme under which
5
Habeas corpus “is, at its core, an equitable remedy,” Schlup
v. Delo, 513 U.S. 298, 319 (1995), as is the injunctive and
declaratory relief that Al-Nashiri’s habeas petition requests, see
Samuels v. Mackell, 401 U.S. 66, 72 (1971). Thus, like the Court in
Councilman, the district court here faced the question whether to
exercise its equitable jurisdiction to intervene in a pending criminal
prosecution. We assume that the form of relief Al-Nashiri seeks—a
writ of habeas corpus—does not affect our analysis of the interests
justifying abstention, and Al-Nashiri does not argue otherwise. Cf.
In re Justices of the Superior Court Dep’t of the Mass. Trial Court,
218 F.3d 11, 17-18 (1st Cir. 2000) (collecting cases for the
principle that “the federal courts have routinely rejected petitions
for pretrial habeas relief” on Younger grounds, even though
Younger dealt with a motion for injunctive relief).
 26

they would be tried and potentially convicted. Longstanding
historical practice supports trying such enemy belligerents by
military commission, see, e.g., Quirin, 317 U.S. at 28-29, and
the scheme Congress crafted in the MCA contains substantial
additional protections as compared to the commissions used
in past conflicts. One key difference, as we have explained, is
that the MCA allows defendants an appeal as of right to our
court. Article III courts therefore play a far more robust role
in overseeing the actions of modern military commissions
than they did in the past. See, e.g., Johnson v. Eisentrager,
339 U.S. 763, 787 (1950) (“Correction of [military
commissions’] errors of decision is not for the courts but for
the military authorities which are alone authorized to review
their decisions.” (quoting In re Yamashita, 327 U.S. 1, 8
(1946))). They also play a much larger part than they do in the
review structure for courts-martial, which provides no appeal
as of right to an Article III court.

Crucially, while the scheme Congress created in the
MCA incorporates Article III review, it also delays it until a
specific point. Before an Article III appellate court may step
in, a defendant must first be tried and convicted in the military
system, the convening authority must have approved the
conviction, and the defendant must appeal the conviction to
the CMCR or affirmatively waive his right to do so.
Ordinarily, when Congress instructs that adjudication of
certain types of cases should begin in specialized, non-Article
III tribunals and end with review in an Article III court, we
suppose that Congress intended for litigants to proceed
exclusively through that scheme. See City of Rochester v.
Bond, 603 F.2d 927, 931 (D.C. Cir. 1979). In other words, by
providing for Article III involvement at a particular point,
Congress “implicitly” signals that Article III courts should get
involved no sooner. Jarkesy, 803 F.3d at 15. Litigants may
 27

not ordinarily seek to prevent the proper operation of the
congressional scheme by pursuing equitable relief in district
court.

We are particularly confident that Congress did not
intend to allow a defendant to halt the workings of a military
commission by challenging in federal court an issue that
could just as easily be considered by the commission and
reviewed by a federal appellate court: the commission’s own
subject matter jurisdiction. The structure of the MCA makes
this clear. For starters, the MCA explicitly empowers military
commissions to make findings sufficient to determine their
own jurisdiction, see 10 U.S.C. § 948d, and permits a
presiding military judge to “hear[] and determin[e] motions
raising defenses or objections which are capable of
determination without trial of the issues” bearing on guilt or
innocence, id. § 949d. These provisions suggest “[b]y
implication” that jurisdictional challenges are not ordinarily to
be raised pretrial in district court. Deaver, 822 F.2d at 70; cf.
id. at 69-70 (explaining that the existence of a procedure
allowing defendants to move to dismiss an indictment pretrial
suggests that defendants may not mount a collateral equitable
challenge to the indictment on the same ground).

Moreover, a military judge’s order denying a motion to
dismiss charges on jurisdictional grounds cannot be appealed
to us until after final judgment. See Khadr v. United States,
529 F.3d 1112, 1114-15 (D.C. Cir. 2008). Our court has
“exclusive jurisdiction to determine the validity of a final
judgment rendered by a military commission,” as approved by
the convening authority, once “all other appeals under this
chapter have been waived or exhausted.” 10 U.S.C.
§ 950g(a)-(b). An order denying a motion to dismiss charges
is not a “final judgment” under 10 U.S.C. § 950g(a), not least
 28

because it has not been approved by the convening authority.
See Khadr, 529 F.3d at 1115-16. District courts would
“undermine the final judgment rule” laid out by Congress
were they routinely to entertain motions for equitable relief of
the sort Al-Nashiri seeks, “with [their] attendant rights of
appeal.” Deaver, 822 F.2d at 71.

Heeding the political branches’ instruction as to the
timing of Article III review qualifies as an “important
countervailing interest” warranting abstention, at least where
that instruction is based on those branches’ assessment of
national security needs. In the realm of national security, the
expertise of the political branches is at its apogee. See Hamdi
v. Rumsfeld, 542 U.S. 507, 531 (2004) (plurality opinion)
(“Without doubt, our Constitution recognizes that core
strategic matters of warmaking belong in the hands of those
who are best positioned and most politically accountable for
making them.”); Al-Bihani v. Obama, 590 F.3d 866, 875
(D.C. Cir. 2010) (noting “the wide deference the judiciary is
obliged to give to the democratic branches with regard to
questions concerning national security”); Hamad v. Gates,
732 F.3d 990, 1006 (9th Cir. 2013) (“Congress’s decisions
with respect to [Guantanamo] detainees are at the core of
Congress’s authority with respect to ‘the conduct of foreign
relations [and] the war power.’” (quoting Mathews v. Diaz,
426 U.S. 67, 81 n.17 (1976))). Acting on the guidance set out
in Hamdan, the President sought authority for the military-
commission trials that “he believe[d] necessary,” 548 U.S. at
636 (Breyer, J., concurring), and Congress gave it to him,
deciding in the process that Article III courts should not step
in before the military system has issued a final decision. The
district court did not err by declining to disturb this joint
determination.
 29

Al-Nashiri and amici raise several counterarguments,
asserting that the interests supporting abstention in the
military-commission context are less significant than those in
the court-martial context. Al-Nashiri contends initially that
Councilman does not apply because he is not a service
member; and, as the dissent likewise points out, concerns of
military discipline are therefore inapplicable. True enough.
But nothing in the Supreme Court’s case law requires the
interests justifying the district court’s decision to be identical
to those in Councilman; it is enough that they are “equally
compelling.” Councilman, 420 U.S. at 757; see also Hamdan,
548 U.S. at 589. To require identical interests would be to
suggest that abstention principles developed in the context of
criminal proceedings in one forum can never be extended to
another. But this cannot be correct. Indeed, Councilman itself
was an outgrowth of Younger abstention, which dealt with
ongoing criminal proceedings in state courts and had nothing
to do with military discipline.

To be sure, the Court in Hamdan did not consider
interests other than military discipline in determining that it
would hear the habeas petition before it. It noted simply that
Hamdan was not a member of the Armed Forces, and that
concerns of military discipline therefore did not apply. But the
Court did not hold that abstention is appropriate only where
concerns of military discipline are present. To the contrary, it
left open the possibility that some other “important
countervailing interest” might justify abstention in a future
case. Hamdan, 548 U.S. at 589 (quoting Quackenbush, 517
U.S. at 716). The Court had no occasion in Hamdan to
consider whether the vital interest we have identified here
would point in favor of abstention, because Congress had not
specifically authorized Hamdan’s military commission—
much less incorporated Article III courts into the applicable
 30

review scheme. Indeed, the Supreme Court in Hamdan
expressly declined to consider whether Congress’s provision
of “limited” Article III review in the Detainee Treatment Act
of 2005 pointed in favor of abstention, because Hamdan had
no right to such review under that Act. Id. at 588 n.19. That
Hamdan did not consider interests other than military
discipline, therefore, does not preclude us from doing so.

Al-Nashiri and amici further assert that abstention applies
only to court systems that are wholly separate from the federal
judicial establishment. They note that decisions of courts-
martial and state courts are not directly reviewed by federal
courts; moreover, these alternative judicial systems have a
long history of operating undisturbed by federal intervention.
Therefore, they argue, while the Court in Councilman was
concerned with Article III courts intruding where they as a
whole had no place, no similar concern is at play here, where
Congress built Article III courts into the review mechanism.
Comity interests are not implicated by such a structure,
according to Al-Nashiri and amici.

Our role in reviewing military-commission convictions
does, of course, distinguish the MCA’s review structure from
that of state courts and courts-martial. But this distinction
points away from pretrial intervention rather than toward it.
For starters, while courts often invoke the term “comity” to
refer to respect for separate judicial systems such as state
courts, the term is more capacious than that. As we have
explained, we have invoked inter-branch comity to avoid
exercising our equitable discretion to interfere with the
prerogatives of coordinate branches of government. Comity
can also justify a district court’s discretionary decision to
“transfer, stay, or dismiss a case that is duplicative of a case
filed in another federal [district] court,” even though both
 31

courts are part of the same judicial system. Federal-Comity
Doctrine, BLACK’S LAW DICTIONARY (10th ed. 2014); see,
e.g., Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-
95 (9th Cir. 1982).

Moreover, the eventual involvement of an Article III
appellate court lessens the need for immediate intervention
because an Article III court can remedy any errors on appeal.
Indeed, before cases like Younger and Councilman, the
traditional rule that equity should not interfere with a criminal
prosecution generally applied only to cases in which a
defendant had an adequate non-equitable remedy in a federal
court. See Trainor v. Hernandez, 431 U.S. 434, 441 (1977)
(explaining that “the existence of an adequate remedy at law
barring equitable relief normally would be determined by
inquiring into the remedies available in the federal rather than
in the state courts,” but Younger “broadened” the inquiry “to
focus on the remedies available in the pending state
proceeding”). If the availability of legal remedies in Article
III courts has historically barred criminal defendants from
receiving pretrial equitable relief, we do not see why in this
case the availability of such remedies would counsel in favor
of permitting pretrial relief.

Al-Nashiri and the dissent also contend that the military
possesses no special expertise in addressing questions related
to the laws of war. Thus, both argue, while part of the reason
for abstaining in Councilman was to defer to the military’s
expertise in handling criminal matters connected to military
service, no similar interest exists here. We are not convinced.
For one thing, Councilman set out a rule that applies
broadly—even to those claims that implicate military
expertise to a lesser degree. See Solorio, 483 U.S. at 436-37
(holding that courts-martial may try service members even for
 32

crimes unrelated to their military service). For another,
Councilman suggested that expertise can be built over time;
thus, the relative novelty of the military commissions need not
necessarily count against them. See 420 U.S. at 758 (noting
that the civilian judges who reviewed court-martial
convictions “would gain over time thorough familiarity with
military problems”). And finally, Councilman cited military
expertise as just one of several practical benefits of
abstention. In addition to serving the needs of the military,
avoiding pretrial intervention also eliminates “duplicative
proceedings,” potentially “obviate[s] the need for judicial
intervention,” and “inform[s] and narrow[s]” eventual Article
III review. Id. at 756-58. These advantages apply in full force
here.

As in Councilman, then, an important countervailing
interest supported the district court’s decision to abstain from
hearing Al-Nashiri’s petition. 6

B

Having determined that the district court applied the
proper legal standard when it decided that it could abstain in

6
By holding that an important countervailing interest justified
the decision to abstain in this case, we do not suggest that a district
court may always abstain from exercising its equitable jurisdiction
simply because it perceives that some important interest would be
advanced by staying its hand. As the Supreme Court has made
clear, abstention is appropriate outside the criminal context only in
certain enumerated circumstances. See Sprint Commc’ns, Inc. v.
Jacobs, 134 S. Ct. 584, 593 (2013) (holding that Younger
abstention does not extend to state civil proceedings merely
because they implicate “important state interests” and provide an
“adequate opportunity to raise [federal] challenges”).
 33

favor of ongoing military-commission proceedings, we next
examine whether its ultimate decision to abstain was
appropriate, in light of any features unique to Al-Nashiri’s
case. Al-Nashiri advances three arguments for why abstention
was inappropriate here; none has merit.

i

The Supreme Court has instructed that federal courts can
intervene in ongoing criminal proceedings in a few narrow
and limited circumstances. In particular, a federal court may
intervene where a plaintiff shows that “extraordinary
circumstances” both present the threat of “great and
immediate” injury and render the alternative tribunal
“incapable of fairly and fully adjudicating the federal issues
before it.” Kugler v. Helfant, 421 U.S. 117, 123-24 (1975)
(quoting Younger, 401 U.S. at 45, 53); see also Huffman v.
Pursue, Ltd., 420 U.S. 592, 601 (1975) (“[A] movant must
show not merely the ‘irreparable injury’ which is a normal
prerequisite for an injunction, but also must show that the
injury would be ‘great and immediate.’” (quoting Younger,
401 U.S. at 46)). Al-Nashiri contends that this exception to
abstention obligated the district court to intervene in his case
because his proceeding before the military commission will
cause him irreparable psychological harm and will require
him to divulge his defense in advance of a possible retrial in
federal district court. These harms, he asserts, amount to the
sort of “great and immediate” irreparable injury that the Court
has recognized could support a federal court’s decision not to
abstain in his particular case. Councilman, 420 U.S. at 756
(quoting Fenner v. Boykin, 271 U.S. 240, 243 (1926)).

Al-Nashiri’s argument is foreclosed by the Supreme
Court’s definition of what constitutes “great, immediate, and
 34

irreparable” injury justifying a federal court’s intervention in
ongoing criminal proceedings. Moore v. Sims, 442 U.S. 415,
433 (1979); see also Councilman, 420 U.S. at 756. As the
Court explained in Councilman, “certain types of injury, in
particular, the cost, anxiety, and inconvenience of having to
defend against a single criminal prosecution, [cannot] by
themselves be considered ‘irreparable’ in the special legal
sense of that term.” 420 U.S. at 755 (quoting Younger, 401
U.S. at 46). Instead, abstention is appropriate where a plaintiff
“can show no harm other than that attendant to resolution of
his case in the military court system,” even though those
harms are “often of serious proportions.” Id. at 754, 758; see
also McLucas v. DeChamplain, 421 U.S. 21, 33 (1975)
(holding that avoiding the possibility of erroneous
incarceration throughout a court-martial proceeding does not
qualify as “irreparable injury” for purposes of abstention). Put
simply, Al-Nashiri’s alleged harms are “attendant to
resolution of his case in the military court system” and, as a
result, do not render abstention inappropriate here.
Councilman, 420 U.S. at 758.

Moreover, even setting this clear proscription aside, the
dissent’s argument that Al-Nashiri’s case could qualify for the
“extraordinary circumstances” exception is unavailing.
Focusing on the word “extraordinary,” the dissent makes a
sympathetic case that Al-Nashiri’s harms are different in both
kind and magnitude from those that he would experience in a
federal court or from the harms experienced by the average
criminal defendant. But that alone does not bring those harms
under the limited and narrow meaning of the exception.
Although the dissent may be correct that Councilman itself
had “no occasion to attempt to define those circumstances”
that might be sufficiently extraordinary to warrant abstention,
420 U.S. at 761, several subsequent cases have clarified the
 35

scope of this exception. See Kugler, 421 U.S. at 124; Trainor
v. Hernandez, 431 U.S. 434, 441-42, 442 n.7 (1977); Moore,
442 U.S. at 433. For a plaintiff to come within the exception,
he must show both that he will suffer a “great and immediate”
harm absent federal-court intervention and that the alternative
tribunal is “incapable of fairly and fully adjudicating the
federal issues before it.” Kugler, 421 U.S. at 123-24. Al-
Nashiri’s allegations regarding his treatment during his
detention, while deeply troubling, do not provide any reason
to fear that he will not be given a fair hearing in the military
commission. See id. at 124. Instead, Al-Nashiri’s allegations
are about his particular vulnerabilities to a trial by a military
commission at Guantanamo Bay. Because they say nothing
about the competence of the military commission itself, those
harms do not meet the requirements of the “extraordinary
circumstances” exception.

The dissent responds that we need not feel bound by this
precedent because Al-Nashiri’s case is different. The cases
defining the “extraordinary circumstances” exception arose in
the context of Younger abstention, not abstention in favor of
courts-martial or military commissions, and therefore, the
dissent contends, the definition of extraordinary
circumstances articulated in the Younger cases does not apply
in the military context. 7 But Councilman is not as far removed

7
According to the dissent, Councilman’s exception to
abstention for “personal jurisdiction” challenges shows that we may
consider other factors that the Supreme Court has not yet identified.
But it is not clear that Councilman’s “personal jurisdiction”
exception is unique to courts-martial, as the dissent suggests.
Councilman grounded that exception in a right not to be tried, see
420 U.S. at 759, which courts have recognized in other contexts as
an “extraordinary circumstance” under Younger. See Gilliam v.
Foster, 75 F.3d 881, 904 (4th Cir. 1996) (en banc) (holding that
 36

from Younger as the dissent suggests. As we explained above,
Councilman’s abstention discussion is based on the same
principles underlying Younger. See Councilman, 420 U.S. at
757 (determining that Younger principles “apply in equal
measure to the balance governing the propriety of equitable
intervention in pending court-martial proceedings”).
Accordingly, other circuits have concluded that Councilman
is simply an application of the Younger doctrine to the courts-
martial context. McCune v. Frank, 521 F.2d 1152, 1157 (2d
Cir. 1975) (“Younger is not limited to criminal proceedings.”
(citing Councilman)); Bowman v. Wilson, 672 F.2d 1145,
1156-59 (3d Cir. 1982); Lawrence v. McCarthy, 344 F.3d
467, 470 (5th Cir. 2003) (“The Supreme Court has since
applied Younger-abstention in various other contexts,
including that of Schlesinger v. Councilman . . . .”); Hennis v.
Hemlick, 666 F.3d 270, 274 n.5 (4th Cir. 2012) (“[T]he
Supreme Court extended Younger abstention to restrict
federal court intervention into on-going court-martial
proceedings.”). In following the lead of Younger and
Councilman here, we heed the Court’s guidance that the
exceptions it has crafted to abstention in favor of an ongoing
criminal proceeding are narrow. See Huffman, 420 U.S. at 602
(describing the “traditional narrow exceptions” to abstention
doctrine). What the dissent proposes would redefine the scope
of the “extraordinary circumstances” exception and create a
novel free-floating exception for psychological harms. Such
an approach belies the Court’s past treatment of the
exceptions to abstention, and, as a result, we will not expand
the “extraordinary circumstances” exception to include

Younger abstention did not apply where plaintiff alleged potential
Double Jeopardy Clause violations because “a portion of the
constitutional protection [the Clause] affords would be irreparably
lost if Petitioners were forced to endure the second trial before
seeking to vindicate their constitutional rights at the federal level”).
 37

psychological harms that do not implicate the fairness of the
military-commission proceedings.

Before moving on to Al-Nashiri’s other arguments, we
again emphasize that Al-Nashiri’s sole claim in this appeal
relates to whether the district court erred in declining to hear
his challenge to the military commission’s subject matter
jurisdiction. Al-Nashiri does not argue that Congress
exceeded its constitutional authority in creating the military-
commission system under the MCA or in defining “alien
unprivileged enemy belligerent” in a manner that includes
him. Nor, to repeat, does he contend that any procedures of
the system Congress created in the MCA are unconstitutional
or will prevent him from fully litigating his jurisdictional
defense. He also makes no claim that delaying habeas review
in his case amounts to an unlawful suspension of the writ.
This is perhaps because the Supreme Court has explained in
the court-martial context that “a deferment of resort to the
writ until other corrective procedures are shown to be futile”
is “in no sense a suspension of the writ of habeas corpus.”
Gusik v. Schilder, 340 U.S. 128, 132 (1950). 8 Indeed, Al-

8
We take no stance on whether abstention could amount to a
suspension of the writ, as this issue is not properly before us. But
we observe that federal courts routinely decline to allow claims that
can be raised in pretrial motions and addressed on direct appeal to
instead be raised via pretrial habeas petition, whether trial is set to
take place in federal court, state court, or a court-martial. See, e.g.,
Henry v. Henkel, 235 U.S. 219, 229 (1914) (federal prosecution)
(“[T]he hearing on habeas corpus is not in the nature of a writ of
error nor is it intended as a substitute for the functions of the trial
court. . . . [A defendant] cannot, in either case, anticipate the regular
course of proceeding by alleging a want of jurisdiction and
demanding a ruling thereon in habeas corpus proceedings.”); In re
Justices of the Superior Court Dep’t of the Mass. Trial Court, 218
 38

Nashiri does not dispute that the MCA provides substantial
“other corrective procedures,” including the right to appeal a
conviction to our court. Finally, to the extent that Al-Nashiri’s
arguments regarding psychological harm challenge his
treatment while in custody, nothing in our opinion forecloses
him from challenging those conditions by filing a habeas
petition in district court.

ii

Al-Nashiri next argues that post-trial Article III review
will come too late to vindicate his constitutional and statutory
“right not to be tried” by a military commission that lacks
subject matter jurisdiction over his offenses. See Councilman,
420 U.S. at 759. The district court’s decision to abstain
violated this right not to be tried, he contends. And because
this right will be lost at the moment his trial begins, he argues
that appellate review in our court cannot vindicate it.

In support, he points to the text of the 2009 MCA, which
provides that an offense “is triable by military commission
under this chapter only if the offense is committed in the
context of and associated with hostilities.” 10 U.S.C.
§ 950p(c) (emphasis added). He asserts that the use of the
word “triable” instead of “punishable” or “liable” suggests

F.3d 11, 17-19 (1st Cir. 2000) (state prosecution) (“[T]he federal
courts have routinely rejected petitions for pretrial habeas relief
raising any variety of claims and issues. . . . Defendants are not
entitled to consideration of their federal habeas claims until a time
when federal jurisdiction will not seriously disrupt state judicial
processes.” (internal quotation marks omitted)); Dooley v. Ploger,
491 F.2d 608, 610 (4th Cir. 1974) (court-martial prosecution)
(“Before seeking [habeas] relief from a district court, [a defendant]
must first exhaust his military remedies[.]”).
 39

that Congress conferred a right not to be tried by a military
commission at all, rather than merely a right not to be subject
to a binding judgment by a commission. We understand his
constitutional claim to assert something similar: the military
commission has jurisdiction under Article I to try only war
crimes, which by definition must have a nexus to hostilities.
Whether Al-Nashiri locates his alleged right not to be tried in
the MCA or the Constitution, the crux of this “right” is that
Al-Nashiri is entitled to an initial determination in an Article
III court of whether his military commission has jurisdiction
over his offense. We disagree.

Some statutory and constitutional provisions indeed
provide express guarantees that trial will not occur. In such
cases, trial itself creates an injury that cannot be remedied on
appeal. But only a handful of such guarantees have been
recognized. The key question, then, is whether there is any
express statutory or constitutional language that gives Al-
Nashiri a right not to be tried, instead of simply a right not to
be subject to a binding judgment, should his alleged crimes
have taken place outside the context of hostilities. As the
Supreme Court has explained it:

There is a crucial distinction between a right not to be
tried and a right whose remedy requires the dismissal of
charges. A right not to be tried . . . rests upon an explicit
statutory or constitutional guarantee that trial will not
occur—as in the Double Jeopardy Clause (“nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb”), or the Speech or Debate Clause
(“[F]or any Speech or Debate in either House, [the
Senators and Representatives] shall not be questioned in
any other Place”).
 40

Midland Asphalt Corp. v. United States, 489 U.S. 794, 801
(1989) (internal citations and quotation marks omitted). The
statutory language to which Al-Nashiri points might appear at
first blush to create such an explicit guarantee: it describes
when an offense is “triable” by military commission. 10
U.S.C. § 950p(c) (“An offense specified in [the MCA] is
triable by military commission . . . only if the offense is
committed in the context of and associated with hostilities.”).
But our case law demonstrates that the mere use of terms like
“triable” does not transform a right not to be subject to a
binding judgment into a right not to be tried.

Particularly instructive is our opinion in Khadr. There,
we held that an erroneous jurisdictional ruling against a
defendant in the military-commission system can be
adequately remedied on appeal from final judgment, despite
statutory language in the MCA that might suggest a defendant
was not triable by military commission. Khadr, 529 F.3d at
1117-18. The presiding military judge in Khadr had
determined that under the 2006 MCA, neither he nor the
military commission’s members had the power to find the
defendant an “unlawful” enemy combatant, as required for the
military to have jurisdiction over the defendant. Id. at 1114.
The military judge therefore dismissed the charges for lack of
jurisdiction. On appeal, the CMCR held that the military
judge could make the necessary jurisdictional finding and
remanded accordingly. Id. at 1115. The defendant petitioned
for interlocutory review of the CMCR’s decision.

This court rejected the defendant’s petition, explaining
that the CMCR’s “procedural decision, as well as any
subsequent jurisdictional decision, will be reviewable if
necessary following a final judgment.” Id. at 1118 (emphasis
added). We explained that “the denial of a claim of lack of
 41

jurisdiction is not an immediately appealable collateral order”
as the jurisdictional provisions at issue created a “right not to
be subject to a binding judgment,” not a right to be free from
trial altogether. Id. (quoting Van Cauwenberghe v. Biard, 486
U.S. 517, 527 (1988)). And the right not to be subject to a
binding judgment “may be effectively vindicated following
final judgment.” Id. (quoting Van Cauwenberghe, 486 U.S. at
527). Notably, Khadr dealt with language that could be read
to suggest the existence of an express “right not to be tried.”
See id. at 1114 (explaining that under the 2006 MCA, a
military commission had “jurisdiction to try any offense made
punishable by this chapter or the law of war when committed
by an alien unlawful enemy combatant” (quoting former 10
U.S.C. § 948d(a)) (emphasis added)).

Our conclusion holds even if the military commission
lacks subject matter jurisdiction not simply under the MCA,
but instead under the Constitution. This much is apparent
from Councilman. There, Councilman argued that his alleged
offense was not constitutionally triable by court-martial
because it was not “service connected.” Councilman, 420
U.S. at 741-42; see also Solorio, 483 U.S. at 440-41
(explaining, in overruling the “service connection” rule, that
the rule was a “constitutional principle” interpreting
Congress’s power under Article I); O’Callahan, 395 U.S. at
272-73 (justifying the “service connection” rule by reference
to Article I and the limits set out by the Fifth and Sixth
Amendments). And when the Supreme Court established the
“service connection” rule, it spoke in terms of trial and not
punishment. See O’Callahan, 395 U.S. at 274 (holding, in
establishing the “service connection” rule, that “since
petitioner’s crimes were not service connected, he could not
be tried by court-martial but rather was entitled to trial by the
civilian courts” (emphases added)). But the Court concluded
 42

in Councilman that any “service connection” deficiency could
be adequately remedied after trial. 420 U.S. at 754.

Al-Nashiri nevertheless gleans the existence of a
constitutional “right not to be tried” from two cases in which
the Supreme Court enjoined pending military trials: Reid v.
Covert, 354 U.S. 1 (1957), and Hamdan. In both Reid and
Hamdan, the Supreme Court heard pretrial habeas petitions
and found that the tribunal at issue—a court-martial in Reid, a
military commission in Hamdan—lacked the authority to
proceed. But we cannot infer from the mere fact of
intervention before trial that a constitutional “right not to be
tried” exists, much less one that extends to Al-Nashiri. And
Al-Nashiri points to no pronouncement in Reid or Hamdan
stating that a defendant has a right to have an Article III court
determine in the first instance whether the military system has
jurisdiction to try his offenses.

Instead, taking Hamdan first, Al-Nashiri observes that
according to a plurality of the Justices, “deficiencies in the
time and place allegations” against Hamdan signaled that the
“offense [alleged] is not triable by law-of-war military
commission.” Pet’r’s Br. 45 (quoting Hamdan, 548 U.S. at
600 (plurality opinion)). Al-Nashiri apparently quotes this
language to suggest that the reason the Court intervened
pretrial was to vindicate a right not to be tried for offenses
that were not “triable” by military commission. But the Court
never said so. Instead, at other points in the opinion, a
majority of the Court explained that it chose to intervene
before the military commission issued a judgment because (1)
no comity considerations justified abstaining under
Councilman; (2) Hamdan “ha[d] no automatic right” to
judicial review of the commission’s “final decision”; and (3)
there was a strong reason to believe unlawful procedures
 43

would actually be used in Hamdan’s trial, because they were
“described with particularity” in a presidential order and
“implementation of some of them ha[d] already occurred.”
Hamdan, 548 U.S. at 616. In other words, the Court
intervened because Article III appellate review was not
available and no compelling considerations counseled in favor
of awaiting the military commission’s judgment.

Al-Nashiri is correct, however, that Reid and similar
cases suggest abstention is inappropriate where individuals
raise “substantial arguments denying the right of the military
to try them at all,” and “the legal challenge turns on the status
of the persons as to whom the military asserted its power”—
that is, where “there is a substantial question whether a
military tribunal has personal jurisdiction over the defendant.”
Hamdan, 548 U.S. at 585 n.16 (citing United States ex rel.
Toth v. Quarles, 350 U.S. 11 (1955) (internal quotation marks
omitted)). The precise contours of this “status” exception are
unclear, but the Supreme Court has offered two examples of
challenges that may come within its scope. First, where the
military attempts to court-martial a defendant who is
“undisputed[ly]” a civilian, the Court has intervened to
prevent trial. New v. Cohen, 129 F.3d 639, 644 (D.C. Cir.
1997); see also Councilman, 420 U.S. at 759 (citing Toth,
Reid, and McElroy v. United States ex rel. Guagliardo, 361
U.S. 281 (1960)). In these cases, the “issue presented
concerned not only the military court’s jurisdiction, but also
whether under Art. I Congress could allow the military to
interfere with the liberty of civilians even for the limited
purpose of forcing them to answer to the military justice
system.” Councilman, 420 U.S. at 759. Requiring civilian
defendants to first proceed through the military system would
be “especially unfair” because of the “disruption caused to
[their] civilian lives” and the accompanying “deprivation of
 44

liberty.” Id. (quoting Noyd, 395 U.S. at 696 n.8). And second,
the Hamdan Court suggested, in dicta, that the status
exception might apply to Hamdan’s challenge, which alleged
that his military commission was not “regularly constituted”
under the Geneva Conventions. An irregularly constituted
court is “ultra vires” and therefore necessarily lacks personal
jurisdiction over any defendant, the Court reasoned. Hamdan,
548 U.S. at 589 n.20.

Whatever the precise scope of this exception to
abstention, it does not require that Al-Nashiri’s jurisdictional
challenge first be heard by an Article III court. We do not
understand Al-Nashiri to challenge his status as an alien
unprivileged enemy belligerent who is subject to detention
and to trial by military commission for certain types of
conduct. Instead, he argues that the nature of his alleged
offenses is such that the military lacks the authority to try
them. His claim is therefore similar to that presented in
Councilman, where the defendant did not challenge his status
as a service member, but instead argued that the military
could not try his offenses because they were not connected to
his service in the Army. See 420 U.S. at 759-60. Like the
Supreme Court in Councilman, then, we conclude that this
type of claim does not fit within an exception to abstention.
Nor does Al-Nashiri argue that the commissions created by
the 2009 MCA generally lack jurisdiction over defendants
because they are so procedurally deficient that they are
wholly ultra vires. The district court therefore did not err in
abstaining from deciding Al-Nashiri’s pretrial challenge to the
commission’s subject matter jurisdiction.

We recognize that our court’s opinion in Hamdan spoke
of the status exception in broad terms. See Hamdan v.
Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d on other
 45

grounds, 548 U.S. 557 (2006). We suggested that the “theory”
behind this exception “is that setting aside the judgment after
trial and conviction insufficiently redresses the defendant’s
right not to be tried by a tribunal that has no jurisdiction.” Id.
at 36. But the Supreme Court’s subsequent opinion in
Hamdan clarified that this exception to abstention applies to
cases in which “the legal challenge turns on the status of the
persons as to whom the military asserted its power.” 548 U.S.
at 585 n.16 (emphasis added) (internal quotation marks
omitted). Thus, despite the broad wording of our statement in
Hamdan, we cannot conclude that the status exception covers
all non-trivial jurisdictional challenges that a military-
commission defendant might raise. Indeed, such a reading
would conflict with Councilman, which allowed a court-
martial to go forward even though the defendant contested the
tribunal’s jurisdiction to try the offense with which he was
charged.

iii

Al-Nashiri also contends that intervention is required
because his military-commission proceedings have been
unreasonably delayed. He points to the provision of the MCA
that eliminates the UCMJ’s speedy trial guarantee, see 10
U.S.C. § 948b(d)(A), and notes that the government’s
interlocutory appeals before the CMCR—and, as a result, his
trial before the military commission—were stayed for nearly a
year pending the confirmation of military judges to the
CMCR. Al-Nashiri estimated in his briefing that trial will not
commence until 2018 at the earliest. The government did not
challenge this estimate at oral argument. Now that the
CMCR’s stay has been lifted, the government has informed us
that military-commission proceedings will resume in
September 2016. Al-Nashiri’s counsel further estimated in
 46

rebuttal at oral argument that appellate review in this court
will not occur until 2024. He provided no information,
however, to explain why so much time would pass between
trial and appeal.

We need not decide whether an unreasonable delay in
military-commission proceedings could come within an
exception to abstention. Cf. Nissan Motor Corp. in USA v.
Harding, 739 F.2d 1005, 1011 (5th Cir. 1984) (explaining that
“excessive delay causing significant impairment of
constitutional rights” can counsel against abstaining in favor
of an ongoing state proceeding). Although the stay before the
CMCR delayed the processing of the government’s
interlocutory appeals—and therefore Al-Nashiri’s trial—for
nearly a year, Al-Nashiri never opposed this postponement.
Indeed, when the government asked the CMCR to lift this
stay after the confirmation of two military judges to that
tribunal in April 2016, Al-Nashiri moved to continue the stay.
We decline to label unreasonable or excessive a delay that Al-
Nashiri has not contested. Cf. Sirva Relocation, LLC v. Richie,
794 F.3d 185, 196 (1st Cir. 2015) (noting that claims that a
state proceeding is inadequate due to adjudicative delay are
“undermine[d]” by a plaintiff’s “failure to pursue potentially
available state judicial remedies”). Nor has Al-Nashiri
explained why the delay caused by the government’s
interlocutory appeals was unreasonable or excessive. In fact,
it was Al-Nashiri himself who argued that, in accordance with
the Rules for Military Commissions and “basic equity,” the
military-commission proceedings should be stayed while the
government pursued its interlocutory appeals. Order, United
States v. Al-Nashiri, AE340J (Apr. 10, 2015).

To be clear, we are troubled by the estimate of Al-
Nashiri’s counsel that appellate review in this court might not
 47

occur until 2024. But counsel offered this prediction for the
first time during rebuttal at oral argument, providing no
information on the cause of this anticipated lag between trial
and appeal to our court, and no opportunity for the
government to respond. We are therefore not prepared at this
juncture to forecast that any such delay will occur or be
excessive as a matter of law. Should an unreasonable delay
materialize, Al-Nashiri may pursue available remedies at that
time.

Relatedly, Al-Nashiri suggests that where it is “plain”
that the law of war does not apply, a district court should not
abstain from adjudicating a military-commission defendant’s
pretrial challenge, because requiring the defendant to first
proceed through the military system “would serve no purpose
other than delay.” Reply Br. 25 (quoting Strate v. A-1
Contractors, 520 U.S. 438, 459 n.14 (1997)). But, as we
explain below in rejecting Al-Nashiri’s mandamus petition,
there is nothing “plain[ly]” erroneous about applying the law
of war here. As a result, we take no stance on whether pretrial
intervention would be appropriate—or, indeed, required—in
such a case. Rather, we simply hold that in this case, the
district court was not required, as a matter of law, to
intervene.

Moreover, because the district court did not err in
abstaining, we reject Al-Nashiri’s arguments that the court
was obligated to rule on the merits of his petition for
preliminary injunctive relief and that it abused its discretion
by issuing a stay that mooted the request for injunctive relief.
Abstention permits a court to decline to reach the merits of a
petitioner’s claim. “It would be illogical for a federal court to
preliminarily enjoin a [parallel] court proceeding when it
[will] abstain from reviewing [that] proceeding altogether.”
 48

Phelps v. Hamilton, 122 F.3d 885, 891 (10th Cir. 1997).
Accordingly, we affirm the district court’s treatment of Al-
Nashiri’s request for injunctive relief.

III

We turn finally to Al-Nashiri’s mandamus petition. As
we emphasized in rejecting his prior mandamus petition,
mandamus is a “drastic remedy” that is appropriate only if
three conditions are met. In re Al-Nashiri, 791 F.3d 71, 78
(D.C. Cir. 2015). First, the party seeking mandamus must
have “no other adequate means to attain the relief he desires.”
Id. (quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S.
367, 380 (2004)). Second, he must show that “his right to
issuance of the writ is clear and indisputable.” Id. (quoting
Cheney, 542 U.S. at 381). And even if the first two conditions
are satisfied, the court must believe “the writ is appropriate
under the circumstances.” Id. We deny Al-Nashiri’s petition
because he has not met the high bar of showing a “clear and
indisputable” right to issuance of the writ.

According to Al-Nashiri, it is “clear and indisputable”
that his conduct did not take place in the context of hostilities,
and therefore that he is entitled to mandamus relief. He
contends that hostilities exist only when the political branches
say so in a “contemporaneous public act”; the existence of
hostilities cannot be determined after the fact. And in his
view, no contemporaneous public act established that
hostilities existed either before September 11, 2001, or in
Yemen, where his alleged offenses took place.

In fact, Al-Nashiri asserts, public acts at the time of his
offenses suggested that America was at peace. He points to
the President’s public statement, in response to the Cole
bombing, that the nation was not at war. And while the
 49

President reported to Congress under the War Powers
Resolution that he had introduced forces “equipped for
combat” into Yemen after the Cole attack, he did not report
that he had introduced forces “into hostilities.” Compare 50
U.S.C. § 1543(a)(1) (requiring the President to provide a
written report to Congress if he introduces troops “into
hostilities”), with id. § 1543(a)(3) (same if he introduces
troops “in numbers which substantially enlarge United States
Armed Forces equipped for combat already located in a
foreign nation”). Further, the Federal Bureau of Investigation
led the investigation of the Cole bombing, treating it as a
crime scene rather than a combat zone. In Al-Nashiri’s view,
these facts suggest that the President did not believe
“hostilities” existed around the time of the Cole bombing.

The government responds that the existence of hostilities
is established by looking not merely to the contemporaneous
acts of the political branches, but to a totality of the
circumstances, including al Qaeda’s conduct. Implicit in this
argument is the notion that the existence of hostilities can be
assessed after the fact, at trial. Applying this totality-of-the-
circumstances standard, the government argues that the Cole
attack was part of al Qaeda’s larger strategy to wage war
against the United States, which culminated in the attacks of
September 11. It notes that al Qaeda publicly declared jihad
against the United States in 1996 and attacked the U.S.
embassies in Kenya and Tanzania in 1998, and that after these
bombings, the President ordered missile strikes on al Qaeda
training camps in Afghanistan and a chemical weapons
facility in Sudan, and invoked the right to self-defense under
the United Nations Charter. The government also points to the
MCA, which authorizes military commission jurisdiction for
conduct occurring “before, on, or after” September 11, 2001.
See 10 U.S.C. § 948d. To the government, this language
 50

suggests that Congress believed hostilities existed before
September 11, even if no public act was taken until the
passage of the AUMF on September 14, 2001.

The disagreement between the parties thus boils down to
two central questions: Should the existence of hostilities be
determined based on the totality of the circumstances, or only
on the understanding of the political branches? And may it be
based on a retrospective analysis, or only on what
decisionmakers believed at the time of the events? Al-Nashiri
and amici believe the judgments of the political branches at
the time are what matters; the government takes a broader
view.

Whatever the answers to these questions, they are not
clear and indisputable, as the Supreme Court’s opinions in
Hamdan make clear. There, a four-Justice plurality suggested
that the conflict against al Qaeda began only after September
11, 2001, and the enactment of the AUMF. Hamdan v.
Rumsfeld, 548 U.S. 557, 598-600 & n.31 (plurality opinion)
(questioning the legality of a charge encompassing acts from
1996 until 2001, since “the offense alleged must have been
committed both in a theater of war and during, not before, the
relevant conflict,” id. at 600). The plurality may therefore
have believed that some kind of contemporaneous public act
of the political branches is needed to establish hostilities,
although it did not expressly say so.

By contrast, in a dissent for three members of the Court,
Justice Thomas argued that the judiciary cannot “second-
guess” the Executive Branch’s view expressed in its charging
documents that an accused acted within the context of an
armed conflict. Id. at 684 (Thomas, J., dissenting). He further
contended that the Executive’s “determination that the present
 51

conflict dates at least to 1996 is supported by overwhelming
evidence.” Id. at 687. In support, Justice Thomas cited much
of the same evidence that the government relies upon here,
including the 1996 declaration of jihad against the United
States and the 1998 embassy bombings. See id. at 687-88. The
dissenting opinion therefore implies that a contemporaneous
public act is not needed: al Qaeda’s actions, rather than only
those of our political branches, could be considered in
determining when hostilities began. Id. at 685, 687-88. Justice
Thomas’s argument that the Executive could determine when
hostilities began in its charging documents is also inconsistent
with the view that a contemporaneous act is needed. 9

The debate in Hamdan indicates that whether hostilities
against al Qaeda existed at the time of Al-Nashiri’s alleged
offenses, and whether Al-Nashiri’s conduct in Yemen took
place in the context of those hostilities, are open questions.
And open questions are “the antithesis of the ‘clear and
indisputable’ right needed for mandamus relief.” Al-Nashiri,
791 F.3d at 86.

The authority Al-Nashiri cites does not clear up this
uncertainty. He points to cases emphasizing that the
determination of when hostilities end is left to the political
branches. See Ludecke v. Watkins, 335 U.S. 160, 170 (1948);
Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010).

9
The Hamdan dissent’s suggestion that courts cannot question
the Executive’s charging documents also puts to rest Al-Nashiri’s
argument that the military judge acted in a clearly unlawful manner
when it denied Al-Nashiri’s motion to dismiss by, in part, deferring
to the Executive Branch’s determination that Al-Nashiri’s conduct
occurred in the context of hostilities. “Even if we ultimately agreed
with [A]l-Nashiri on the merits,” the military judge’s decision was
not clearly and indisputably erroneous. Al-Nashiri, 791 F.3d at 86.
 52

These cases do not, however, clearly establish that this
political determination must be made in the form of a “public
act” such as a proclamation or report to Congress. Nor do
these cases speak directly to when hostilities begin. Al-
Nashiri also relies on The Protector, 79 U.S. (12 Wall.) 700
(1871), which explained that it was “necessary . . . to refer to
some public act of the political departments of the
government to fix the dates” of the Civil War. Id. at 702; see
also Masterson v. Howard, 85 U.S. (18 Wall.) 99, 105 (1873)
(citing The Protector). But The Protector spoke only of the
Civil War, 79 U.S. (12 Wall.) at 700; it did not purport to lay
down a rule to govern future conflicts. As the Supreme Court
later held, the terms “at war” and “at peace” may change
meanings across contexts. Lee v. Madigan, 358 U.S. 228, 231
(1959). The Protector’s reliance on a “public act” is therefore
not clearly and indisputably applicable here. As a result, it
cannot be grounds for mandamus relief.

Because Al-Nashiri cannot show that his conduct clearly
and indisputably took place outside the context of hostilities,
we deny his petition for mandamus relief.

IV

We deny Al-Nashiri’s petition for a writ of mandamus
and affirm the district court’s denial of his motion for a
preliminary injunction.
 TATEL, Circuit Judge, dissenting: Since July 2011, Abd
Al-Rahim Hussein Muhammed Al-Nashiri has repeatedly
sought to challenge the government’s authority to try him in a
military commission. In his view, none of the offenses with
which he is charged occurred in the context of an armed
conflict and thus none is triable outside of a civilian court. In
one of his latest attempts to raise the issue, Al-Nashiri
petitioned the district court for a writ of habeas corpus. That
court ultimately concluded that it was required to stay its hand
under Schlesinger v. Councilman, 420 U.S. 738 (1975), a case
in which the Supreme Court held that equity and inter-branch
comity considerations generally require that federal courts
refrain from interfering in ongoing court-martial proceedings
against American military personnel.

Whether Councilman’s abstention doctrine should be
extended to the military commission context to postpone
consideration of a Guantanamo detainee’s habeas claim
presents a difficult question. In his opinion for the court,
Judge Griffith makes a strong case that, as a matter of inter-
branch comity, federal courts should respect Congress’s
judgment that Article III review of military commission
decisions generally occurs only after the military proceedings
have run their course—that is, only after final convictions are
rendered and affirmed by military authorities. In my view,
however, material differences between criminal prosecutions
of non-servicemembers in military commissions and criminal
prosecutions of servicemembers in courts-martial lessen the
force of the comity and practical considerations that lie at the
heart of cases like Councilman, thus significantly
undermining the case for abstention.

For instance, one of the primary considerations—perhaps
the primary consideration—underlying Councilman’s
abstention doctrine is the importance of avoiding judicial
interference in the military’s unique relationship with its
servicemembers, which rests on laws and traditions having no
 2
counterpart in civilian life and in which the military has
singularly relevant expertise. See id. at 757, 759–60; see also,
e.g., Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality
opinion) (“[T]he rights of men in the armed forces must
perforce be conditioned to meet certain overriding demands of
discipline and duty, and the civil courts are not the agencies
which must determine the precise balance to be struck in this
adjustment.”). By contrast, judicial consideration of habeas
claims related to ongoing military commission proceedings
against alien unprivileged enemy belligerents for alleged
violations of the laws of war threatens no similar relationship
and implicates no similar expertise. Indeed, military
commissions are primarily called upon to address questions
about the laws of war, a body of international law hardly
foreign to federal courts, see, e.g., United States v.
Hamidullin, 114 F. Supp. 3d 365 (E.D. Va. 2015) (addressing
whether a defendant was entitled to combatant immunity
under the laws of war); United States v. Lindh, 212 F. Supp.
2d 541, 552–53 (E.D. Va. 2002) (same); 18 U.S.C. § 2441
(penalizing war crimes), and questions about the
constitutional constraints on military commissions, an area in
which Article III courts, not military courts, are especially
expert, see, e.g., Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427–
28 (2012) (“At least since Marbury v. Madison, we have
recognized that . . . it is emphatically the province and duty of
the judicial department to say what the law is.” (internal
quotation marks, citation, and alteration omitted)).

Significant structural differences between the military
commission system at issue here and the court-martial system
at issue in Councilman further tilt the scales against
abstention. For example, in contrast to the court-martial
system at issue in Councilman, which has existed since 1950
and which is used in both times of war and times of peace, the
present military commission system is temporary and may be
 3
utilized only so long as necessary to try those who commit
law-of-war offenses during the United States’ current conflict
with al Qaeda and its associated forces, see Hamdan v.
Rumsfeld, 548 U.S. 557, 597–98 (2006) (plurality opinion)
(recognizing as a precondition of military commission
jurisdiction that an unlawful enemy combatant be charged
with an offense that occurred during the period of hostilities);
id. at 683–84 (Thomas, J., dissenting) (same). The notion that
federal courts should delay exercising their habeas
jurisdiction out of respect for a system of rarely used and
temporary tribunals strikes me as rather odd.

There are, moreover, strong countervailing reasons for
giving habeas claims related to military commissions prompt
consideration. Most notably, as the last decade and a half has
demonstrated, there is little jurisprudence regarding military
commissions and their authority. See, e.g., Order, Al Bahlul v.
United States, No. 11-1324 (D.C. Cir. Sept. 25, 2015)
(granting rehearing en banc to consider, inter alia, whether
the Constitution’s Define and Punish Clause empowers
Congress to define inchoate conspiracy as a law-of-war
offense subject to trial by military commission); Al Bahlul v.
United States, 767 F.3d 1, 18 (D.C. Cir. 2014) (en banc)
(recognizing it is an open question whether the Constitution’s
Ex Post Facto Clause applies to military commission cases at
Guantanamo); Hamdan, 548 U.S. at 613 (holding the military
commission procedures established by an executive order
invalid). Given that “[t]rial by military commission raises
separation-of-powers concerns of the highest order,” Hamdan,
548 U.S. at 638 (Kennedy, J., concurring), the absence of a
well-developed body of law about their use further counsels
against abstention.

But even if Councilman-like abstention applies as a
general matter to postpone federal courts’ exercise of habeas
 4
jurisdiction where it would interfere with active military
commissions, I am unconvinced that it should apply in the
unique and troubling circumstances of this case.

Significantly, in Councilman—the abstention decision
most analogous to this case—the Supreme Court held only
that district courts must refrain from exercising their equitable
powers to intervene in pending court-martial proceedings
when the petitioner is “threatened with no injury other than
that incidental to every criminal proceeding brought lawfully
and in good faith”—that is, where a petitioner is threatened
with nothing more than the usual “cost, anxiety, and
inconvenience of having to defend against a single criminal
prosecution.” Councilman, 420 U.S. at 754–55 (internal
quotation marks and alteration omitted). The Court expressly
noted that it had “no occasion to attempt to define those
circumstances, if any, in which equitable intervention into
pending court-martial proceedings might be justified,”
explaining that it could “discern nothing” in the circumstances
of that case that “outweigh[ed] the strong considerations
favoring exhaustion of remedies” or that “warrant[ed]
intruding on the integrity of military court processes.” Id. at
761. The Court thus left open the possibility that cases might
arise in which extraordinary circumstances would outweigh
the equity and comity principles underlying abstention. Id. at
754–55, 761; cf. Younger v. Harris, 401 U.S. 37, 45–47, 53–
54 (1971) (recognizing that federal courts must generally
abstain from deciding cases that would interfere with pending
state criminal proceedings but acknowledging that
“extraordinary” or “unusual” circumstances may overcome
the equity, comity, and federalism principles that ordinarily
require abstention).

Here, it appears that extraordinary and unusual
circumstances may well outweigh whatever equity and inter-
 5
branch comity principles might otherwise justify Councilman-
like abstention. In petitioning for pretrial review of the
military commission’s authority to try him, Al-Nashiri alleges
that the government subjected him to years of brutal detention
and interrogation tactics that left him in a compromised
physical and psychological state and that the harms he has
already suffered will be exacerbated—perhaps permanently—
by the government’s prosecution of him in a military
commission. If there is merit to these allegations, the harms
he will suffer are truly extraordinary and are a far cry from the
ordinary burdens—even serious ones—that individuals
endure in the course of defending against criminal
prosecutions.

According to the unclassified version of Al-Nashiri’s
brief, local authorities in the United Arab Emirates seized him
in October 2002 and transferred him to United States custody.
Pet’r’s Br. 5. The CIA then detained him at secret locations,
commonly referred to as black sites, as part of its “newly-
formed Rendition, Detention, and Interrogation (‘RDI’)
Program.” Id. Al-Nashiri asserts that this program employed
extreme interrogation tactics with the hopes of inducing
“learned helplessness” among the detainees. Id. Dr. Sondra S.
Crosby, a Department of Defense-appointed expert and a
board-certified physician who specializes in treating victims
of torture, explains that “learned helplessness” is a concept
first introduced in the 1960s by experimental psychologist Dr.
Martin Seligman. Crosby Decl. ¶ 11. Seligman’s work, which
“consisted of restraining dogs and subjecting them to random
and repeated electric shocks,” found that “[d]ogs that could
not control or influence their suffering in any way ‘learned’ to
become helpless, collapsing into a state of passivity.” Id.
According to Al-Nashiri, the CIA’s RDI program sought to
induce “learned helplessness” in the detainees so that they
“might become passive and depressed in response to adverse
 6
or uncontrollable events, and . . . thus cooperate and provide
information.” Pet’r’s Br. 5 (internal quotation marks omitted).

Describing his treatment at the hands of the CIA from
2002 to 2006, Al-Nashiri, in the unclassified version of his
brief, which I quote at length, asserts the following:

The first records of Al-Nashiri[’s] treatment
[redacted]. He was not allowed to sleep, was
regularly beaten, and hung by his hands. After a
month, he was transferred to CIA custody and taken
to a location codenamed COBALT. In transit to
COBALT, ice was put down his shirt. This appears
to have been done as part of a broader policy of
using transportation between black sites to induce
anxiety and helplessness.

Virtually no documentation of Al-Nashiri’s time
at COBALT exists. Certain facts can be ascertained
from then-prevailing standard operating procedures.
The chief of interrogations described COBALT as
“good for interrogations because it is the closest
thing he has seen to a dungeon, facilitating the
displacement of detainee expectations.” COBALT
operated in total darkness and the guard staff wore
headlamps. [Redacted]. Detainees were subjected to
loud continuous noise, isolation, and dietary
manipulation.

According to one CIA interrogator, detainees at
COBALT “[‘]literally looked like [dogs] that had
been kenneled.’ When the doors to their cells were
opened, ‘they cowered.’” At COBALT, [redacted].
Detainees were fed on an alternating schedule of one
meal on one day and two meals the next day. They
 7
were kept naked, shackled to the wall, and given
buckets for their waste. On one occasion, Al-Nashiri
was forced to keep his hands on the wall and not
given food for three days. To induce sleep
deprivation, detainees were shackled to a bar on the
ceiling, forcing them to stand with their arms above
their heads. [Redacted].

[Redacted] use of improvised interrogation
methods, such as water dousing, wherein a detainee
was doused with cold water and rolled into a carpet,
which would then be soaked with water in order to
induce suffocation.

[Redacted].

[Redacted] Al-Nashiri was kept continually
naked and the temperature was kept, in his words,
“cold as ice cream.” [Redacted].

The documentation of conditions at [redacted]
lacks specificity. Most summaries of interrogation[s]
say simply [redacted]. There is no question,
however, that Al-Nashiri was “waterboarded” at
GREEN. This entailed being tied to a slanted table,
with his feet elevated. A rag was then placed over his
forehead and eyes, and water poured into his mouth
and nose, inducing choking and water aspiration.
The rag was then lowered, suffocating him with
water still in his throat and sinuses. Eventually, the
rag was lifted, allowing him to “take 3–4 breaths”
before the process was repeated.

[Redacted]
 8
....

After interrogators questioned Al-Nashiri’s
intelligence value, CIA Headquarters sent an
untrained, unqualified, uncertified, and unapproved
officer to be Al-Nashiri’s new interrogator at BLUE.
[Redacted]. Al-Nashiri was kept continually hooded,
shackled, and naked. He was regularly strung up on
the wall overnight. Al-Nashiri was regularly forced
into “stress positions” prompting a Physician’s
Assistant to express concern that Al-Nashiri’s arms
might be dislocated.

While prone, this [redacted] interrogator
menaced Al-Nashiri with a handgun. The
interrogator racked the handgun “once or twice”
close to Al-Nashiri’s head. [Redacted].

The [redacted] interrogator also threatened to
“get your mother in here,” in an Arabic dialect
implying he was from a country where it was
common to rape family members in front detainees
[sic]. [Redacted]. These threats were coupled with
“forced bathing” with a wire brush to abrade the
skin, [redacted]. There is also evidence Al-Nashiri
was, in fact, forcibly sodomized, possibly under the
pretext of a cavity search that was done with
“excessive force.”

Id. at 9–19 (internal citations and footnote omitted).

In his unclassified brief, Al-Nashiri further claims that at
one point
 9
[t]he CIA’s Chief of Interrogations, a person whose
presence had previously caused Al-Nashiri to
tremble in fear, threatened to resign if further torture
was ordered. He wrote that torturing Al-Nashiri is “a
train wreak [sic] waiting to happen and I intend to
get the hell off the train before it happens.” He then
wrote a cable to be “entered for the record” that “we
have serious reservations with the continued use of
enhanced techniques with [Al-Nashiri] and its long
term impact on him. [Al-Nashiri] has been held for
three months in very difficult conditions, both
physically and mentally. . . . [Al-Nashiri] has been
mainly truthful and is not withholding significant
information. To continue to use enhanced
technique[s] without clear indications that he [is]
withholding important info is excessive. . . . Also
both C/CTC/RG and HVT interrogator who departed
[BLUE] in [REDACTED] January, believe
continued enhanced methods may push [al-Nashiri]
over the edge psychologically.” Headquarters
ordered Al-Nashiri to be tortured further.

Id. at 20 (internal citations omitted) (alterations in original).

According to Al-Nashiri, several years after he was
detained as part of the RDI program, the government
requested that a competency board evaluate him. “Two
psychologists and one psychiatrist conducted interviews with
[him] and reviewed numerous documents including
summaries of his interrogations, medical assessment notes,
and psychological assessment notes from 2002 through
2006.” Id. at 6. They concluded that he suffers from post-
traumatic stress disorder (PTSD) and major depressive
disorder. Id. at 7.
 10
Al-Nashiri claims that these conditions are “the result—
intended result—of the government’s deliberate, years-long
campaign to coerce [him] into a state of ‘learned
helplessness.’” Id. at 9. He further claims that a military trial
will greatly aggravate these conditions, with potentially
permanent consequences for his mental and physical health.
In support, he offers the declaration of his DoD-appointed
expert, Dr. Crosby. Based on her examinations of Al-Nashiri,
Dr. Crosby believes that he “suffers from complex
posttraumatic stress disorder as a result of extreme physical,
psychological, and sexual torture inflicted upon him by the
United States.” Crosby Decl. ¶¶ 7, 12. She concludes that the
CIA “succeeded in inducing ‘learned helplessness’” and that
Al-Nashiri is “most likely irreversibly damaged by torture.”
Id. Indeed, she writes that in her “many years of experience
treating torture victims from around the world,” Al-Nashiri
“presents as one of the most severely traumatized individuals
[she] ha[s] ever seen.” Id.

After recounting aspects of Al-Nashiri’s treatment and its
current impact on his physical and psychological well-being,
Dr. Crosby states that “[a]lthough, even in the best of
circumstances, the horrific and calculated nature of his torture
would be expected to have long lasting effects, there are
multiple factors that are unique to Guantánamo and the
military proceedings against [Al-Nashiri] that are further
exacerbating his symptoms and suffering.” Id. ¶ 16. She notes
that because Guantanamo was one of the black sites at which
he was held, he is regularly “confronted with reminders . . . of
his time in CIA custody.” Id. ¶ 17. In her opinion, “[s]eeing
these reminders particularly when shackled as he often is
while moved to and from meetings with counsel and to court,
triggers traumatic stress and causes him intense anxiety,
dissociation, and painful flashbacks to his experience of
torture.” Id. Noting that “[a] key strategy of the CIA’s RDI
 11
program was to keep the detention facility’s policies and
procedures unpredictable in order to induce helplessness,” Dr.
Crosby opines that ongoing instability at Guantanamo
“profoundly exacerbates . . . Al-Nashiri’s complex PTSD”
because he has “no way of differentiating this from the
government’s prior deliberate efforts to destabilize his
personality.” Id. ¶¶ 20–21.

Dr. Crosby further believes that, “[a]t present, the
military trial process is a principal driver of this instability”
and Al-Nashiri’s condition. Id. ¶ 22. She states, for example,
that “the ad hoc character of the proceedings,” in which the
government seeks to impose death, causes Al-Nashiri
“profound anxiety,” id. ¶ 23, and that the “lack of continuity
of [his] defense team” due to military personnel rules
undermines his ability to build trusting relationships with his
attorneys, id. ¶ 24.

While recognizing that a capital trial in any tribunal
would be stressful, Dr. Crosby states that her understanding of
“the more predictable procedures of federal confinement and
trials causes [her] to believe that the contemplated military
trial is stressful on a different order of magnitude and, given
. . . Al-Nashiri’s situation and fragile psychological state
induced by torture, exponentially more harmful.” Id. ¶ 26. She
has “serious doubts” about his ability to “remain physically
and mentally capable of handling the physical and emotional
stress of the military trial process,” and she “fear[s]” that, if
forced to undergo a military trial, Al-Nashiri “will eventually
decompensate” with “permanently disabling effect[s] on his
personality and his capacity to cooperate meaningfully with
his attorneys.” Id. ¶ 27.

In its responsive brief, the government contests neither
Al-Nashiri’s allegations regarding his past treatment nor the
 12
potential consequences of a capital trial in a military
commission. Instead, the government insists that those
allegations are irrelevant because the burdens attendant to
defending against criminal prosecutions are insufficient to
overcome the equity and inter-branch comity principles that
justify abstention in cases like Councilman. See Resp’t’s Br.
61. But as noted above, Councilman held only that the
ordinary burdens of defending against criminal prosecutions,
however serious, are insufficient to outweigh such
considerations. If there is merit to Al-Nashiri’s allegations
regarding his treatment and to Dr. Crosby’s assessment of his
current condition and the consequences of proceeding with a
military trial, then Al-Nashiri is threatened with far more than
the harms “incidental to every criminal proceeding brought
lawfully and in good faith.” Councilman, 420 U.S. at 754
(internal quotation marks omitted). Indeed, the alleged
burdens he faces are not only unusual, but extraordinary. He
contends that because the executive branch, the very authority
that now seeks to try him, subjected him to years of brutal
detention and interrogation tactics—“torture” in the words of
his DoD-appointed expert—he suffers from psychological
disorders that will be aggravated by a capital trial in a military
commission. Surely, such circumstances—if true—would
outweigh the equity and inter-branch comity principles that
might otherwise call for abstention. See id. at 761.

The district court, in invoking Councilman’s abstention
doctrine, failed to address whether Al-Nashiri’s potential
harms involve the kind of extraordinary circumstances that
could warrant federal court intervention in pending military
commission cases. In an alternative ruling on Al-Nashiri’s
motion for a preliminary injunction, the district court did state
that Al-Nashiri failed to show the sort of irreparable injury
necessary to obtain injunctive relief. Al-Nashiri v. Obama, 76
F. Supp. 3d 218, 222 n.3 (D.D.C. 2014). Its explanation
 13
consisted of a single sentence: “‘[T]he inconvenience of any
criminal prosecution, including those associated with the
military commissions, is insufficient, standing alone, to
warrant federal court intervention.’” Id. (quoting Al Odah v.
Bush, 593 F. Supp. 2d 53, 58 (D.D.C. 2009)). In reaching this
conclusion, the court ignored Al-Nashiri’s assertions that the
unusual and extraordinary circumstances of his confinement
had caused serious physical and psychological harms that
would be severely aggravated by trial in a military
commission. Indeed, without giving Al-Nashiri the
opportunity to submit classified declarations about those
harms, as his counsel had requested, the court determined that
any harms involved in defending against a criminal
prosecution could not qualify as irreparable.

In my view, the district court erred in concluding that the
types of harms Al-Nashiri asserts are governed by the general
rule that federal courts must decline to exercise their equitable
powers when individuals face no harms other than those
ordinarily involved in defending against criminal
prosecutions. Al-Nashiri asserts potential injuries different in
both degree and kind from those normally sustained in the
course of criminal proceedings. Cf. McLucas v.
DeChamplain, 421 U.S. 21, 33 (1975) (“[T]he only harm
DeChamplain claimed in support of his prayed for equitable
relief was that, if convicted, he might remain incarcerated
pending review within the military system.”). As a result,
even putting aside my concerns about applying a Councilman-
like abstention doctrine to delay federal court consideration of
habeas claims related to the current military commission
system, I would remand this case to the district court for fact-
finding with respect to Al-Nashiri’s alleged harms and for a
determination of whether those harms are sufficient to
overcome the equity and inter-branch comity principles that
might otherwise justify abstention. If the district court—after
 14
taking whatever fact-finding steps it deemed necessary, such
as conducting an evidentiary hearing—were to determine that
Al-Nashiri’s alleged harms are as serious as he claims, they
would no doubt qualify as the kind of extraordinary
circumstances that “outweigh” whatever equity and inter-
branch comity principles might underlie Councilman-like
abstention. If they do not qualify as such, it would be hard to
imagine any that would.

The court dismisses these circumstances as insufficient.
Drawing upon cases applying the Younger abstention
doctrine, which requires that courts generally refrain from
exercising jurisdiction where doing so would interfere with
state proceedings implicating important state interests, the
court states that “the ‘extraordinary circumstances’ exception”
applies only where a petitioner can show that “he will suffer a
‘great and immediate’ harm absent federal-court intervention”
and “the alternative tribunal is ‘incapable of fairly and fully
adjudicating the federal issues before it.’” Majority Op. at 34–
35 (quoting Kugler v. Helfant, 421 U.S. 117, 123–24 (1975)).
According to the court, Al-Nashiri’s claims “say nothing
about the competence of the military commission,” and thus
“do[] not bring [Al-Nashiri’s] harms under the limited and
narrow meaning of the exception.” Id. at 34–35.

As an initial matter, I am skeptical that even in the
context of Younger abstention, Al-Nashiri’s circumstances
could not qualify as the sort of extraordinary circumstances
that could outweigh the equity, comity, and federalism
principles generally dictating abstention. Although some
statements from the Younger line of cases may be read to
limit Younger’s “extraordinary circumstances” exception to
situations in which state tribunals cannot be expected to fairly
and fully adjudicate litigants’ claims for reasons such as bias
 15
and bad faith, see Kugler, 421 U.S. at 124, the Supreme Court
has never addressed a situation like the one we face here.

But putting those doubts aside, I am unpersuaded that we
must apply the same sort of “extraordinary circumstances”
exception as that developed in the Younger line of cases.
Contrary to the court’s suggestion, there is no single rule of
abstention, with a single “extraordinary circumstances”
exception. See Majority Op. at 34–35. Instead, drawing upon
similar but distinct principles, the Supreme Court has
developed a variety of abstention doctrines that seek to
address, in the ordinary case, the appropriate balance between
individual interests in federal court adjudication and
considerations of equity and comity. In Younger, for instance,
the Supreme Court held that absent bad faith, harassment,
enforcement of a patently unconstitutional statute, or other
“unusual” circumstances, considerations of equity, comity,
and federalism demand abstention in cases related to certain
state proceedings. See, e.g., Kugler, 421 U.S. at 123–24.
Later, in Councilman the Court held that where a
servicemember is threatened with nothing more than the
ordinary burdens involved in defending against a criminal
prosecution in a court-martial, equity and inter-branch comity
considerations require abstention. See Councilman, 420 U.S.
at 754–58, 761.

Importantly, each of these abstention doctrines balanced
different considerations. That much is evident from the fact
that Councilman abstention includes an exception that
Younger does not—specifically, for challenges to a court-
martial’s personal jurisdiction over a litigant. See
Councilman, 420 U.S. at 759–60; Hamdan, 548 U.S. at 585
n.16. The Court determined that in cases presenting such
challenges, the abstention calculus comes out differently,
 16
namely, in favor of federal courts exercising their jurisdiction.
See Councilman, 420 U.S. at 759–60.

Because the Supreme Court’s abstention doctrines
involve distinct balancing calculations, I am unconvinced that
any limits the Court may have imposed on the sorts of
“extraordinary circumstances” that can outweigh the
justifications for abstention in cases related to ongoing state
proceedings necessarily apply in cases involving Councilman
abstention. No decision compels that view. And I certainly do
not believe that those conclusions are dispositive regarding
the sorts of circumstances that may outweigh whatever equity
and inter-branch comity principles might generally require
abstention in cases—like this one—that relate to pending
military commission cases against non-servicemembers. As
noted above, the considerations involved in each are different.
See supra, at 1–3, 15. Consequently, the circumstances
justifying federal court intervention may also differ.

Here, we are not confronted with a separate sovereign
seeking to vindicate important interests as it sees fit. Instead,
we are faced with the federal executive branch’s assertion that
it should get the first crack at deciding Al-Nashiri’s
substantial constitutional and statutory challenges to a
military commission’s authority to try him even though Al-
Nashiri may, because of the executive branch’s past actions,
suffer severe and permanent injuries from the exercise of its
jurisdiction. Further, the military commission has concluded
that it will not fully determine its own jurisdiction, in the first
instance, until trial. By the time Al-Nashiri has an opportunity
for meaningful judicial review, the extraordinary injuries may
well have occurred.

When the notions of equity and inter-branch comity
articulated by the court are considered against Al-Nashiri’s
 17
unusual and extraordinary allegations of harm, as well as the
long-established principle that it is the judiciary’s duty to
ultimately say what the law is, see Zivotofsky, 132 S. Ct. at
1427–28, I believe that abstention—again, assuming Al-
Nashiri’s allegations are true—is unwarranted.