here on Just Security. The brief, he writes, takes
no position on the merits, but argu[es] that Judge Roberts was wrong to abstain from deciding them. In a nutshell, the brief offers three interrelated conclusions:
- Abstention in favor of the Guantánamo military commissions does not remotely follow from Councilman, because the commissions trigger neither of the comity-based considerations that, in Councilman, justified abstaining in favor of a servicemember’s trial by court-martial (unlike courts-martial, the Guantánamo military commissions are trying non-servicemembers for non-military offenses, and they are not independent of, but rather directly subservient to, the Article III civilian courts).
- Even if abstention in favor of the Guantánamo military commissions was ever appropriate, al-Nashiri’s claim is the exact kind of challenge to the subject-matter jurisdiction of a military court that the Supreme Court has consistently adjudicated (and authorized lower courts to adjudicate) in the context of collateral pre-trial review.
- Abstention is especially inappropriate in al-Nashiri’s case because of the stay that remains in place in the Court of Military Commission Review (a result of the ongoing efforts to resolve the Appointments Clause issues raised by the D.C. Circuit earlier this year), the practical effect of which is to “cut against any argument that resolution of Petitioner’s claims … will somehow further delay Petitioner’s trial.”