D.C. Circuit stays (i.e., postpones for at least a couple of months) Thursday’s scheduled CMCR hearing in al-Nashiri

For all of you who were planning to attend tomorrow (Thursday) morning’s Court of Military Commission Review appellate hearing in the al-Nashiri case . . .  change of plans:  The U.S. Court of Appeals for the D.C. Circuit just stayed all CMCR proceedings in the case, pending its (the DC Circuit’s) resolution of a petition for mandamus that al-Nashiri has filed in that Article III court.  The vote to stay was 2-1, with Judges Rogers and Pillard in the majority, Judge Kavanaugh dissenting (on grounds that the DC Circuit lacks jurisdiction to issue a writ of mandamus here).

The proceeding in question is an interlocutory appeal to the CMCR by the prosecution from an order of the military judge dismissing the charges related to the bombing of the MV Limburg.  I discuss the substantive merits of the government’s interlocutory appeal in this post and in part I of this one.  The CMCR was to hear argument on the appeal tomorrow morning.

al-Nashiri filed his mandamus petition in the D.C. Circuit in an effort to head off the CMCR interlocutory appeal.  That petition argues that it would be unconstitutional for the military judges on the CMCR panel — two of the three judges — to sit, raising two distinct Article II, constitutional arguments: one under the Appointments Clause, the other under the Commander-in-Chief Clause.  I offered some preliminary views of the merits (or lack thereof) of those constitutional challenges in part II of this post.  al-Nashiri also moved for a stay of the CMCR proceedings while his mandamus petition was pending.  The prosecution opposed the stay motion.  One of the government’s grounds for opposing the stay is that the D.C. Circuit lacks jurisdiction to consider an interlocutory writ of mandamus from the CMCR–the argument that Judge Kavanaugh agreed with this evening.  Steve has written in detail on this jurisdictional question.

The D.C. Circuit order this evening does not address the merits of al-Nashiri’s constitutional arguments, or even whether the D.C. Circuit has jurisdiction over the petition–the court merely granted the motion to stay the CMCR proceedings “to give the court [of appeals] sufficient opportunity to consider the mandamus petition and should not be construed as a ruling either on the jurisdictional question presented by the petition or on the merits of the petition.”

The court has expedited briefing on the (jurisdiction and merits of) mandamus petition:  The U.S. brief is due on December 3, and al-Nashiri’s reply is due on December 15.  The court indicated that it will schedule oral argument on the petition.

Steve and I might have further posts (Steve on the jurisdictional question; me on the constitutional merits) after we’ve had a chance to read the relevant papers. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).