As Marty already noted, yesterday, a divided three-judge panel of the D.C. Circuit issued a strange order in the ongoing litigation in the al-Nashiri military commission prosecution, staying the government’s pending interlocutory appeal to the Court of Military Commission Review (CMCR) in order to allow the D.C. Circuit (which hears appeals from the CMCR) to resolve Nashiri’s constitutional challenge to the composition of the CMCR panel that is currently assigned to the government’s appeal. Judge Brett Kavanaugh dissented from the stay–not because he thought the constitutional challenge to the CMCR’s composition was without merit, but because he believed the D.C. Circuit lacked jurisdiction to entertain that claim–and so therefore lacked jurisdiction to issue a stay in anticipation of entertaining that claim. As Marty promised yesterday, he and I both have more to say about yesterday’s order–including my reaction in the post that follows to the jurisdictional issue raised by Judge Kavanaugh’s dissent, and his still-to-come reaction to the underlying merits. And as I explain below the fold, I believe Judge Kavanaugh’s jurisdictional analysis is deeply unconvincing–and that the D.C. Circuit (1) has jurisdiction on the merits to provide the precise relief Nashiri is seeking; and (2) even if it doesn’t, certainly had jurisdiction to issue the administrative stay from which Judge Kavanaugh dissented.

I.  Judge Kavanaugh’s Dissent

Let’s begin with Judge Kavanaugh’s dissent, the bulk of which is quoted below:

The problem for Al-Nashiri’s argument is that this Court has jurisdiction only over “a final judgment” rendered by a military commission. 10 U.S.C. § 950g(a); Khadr v. United States, 529 F.3d 1112, 1115-17 (D.C. Cir. 2008). There is no final judgment in this case. And except where there is a final judgment, “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” 28 U.S.C. § 2241(e)(2) (emphasis added). That language could hardly be clearer. If Al-Nashiri is convicted and exhausts his remedies in the military justice system, he then may raise in this Court his constitutional challenges to the composition of the Court of Military Commission Review. See 10 U.S.C. § 950g(a)-(b); see also 28 U.S.C. § 2241(e)(2). But not now.

In other words, Judge Kavanaugh’s dissent rests on two separate, but related, conclusions: (1) no statute affirmatively provides the D.C. Circuit with interlocutory appellate jurisdiction to entertain Nashiri’s constitutional challenge to the composition of the CMCR; and (2) 28 U.S.C. § 2241(e)(2) (the “non-habeas” jurisdiction-stripping provision of the Military Commissions Act of 2006) affirmatively precludes such jurisdiction. In fact, both of these contentions are incorrect.

II.  The D.C. Circuit’s Jurisdiction Under the All Writs Act

The far more straightforward contention to rebut is Judge Kavanaugh’s first conclusion–that “this Court has jurisdiction only over ‘a final judgment’ rendered by a military commission.” That’s true, but doesn’t do the work Judge Kavanaugh believes it does. As a court created by Congress, the D.C. Circuit “may issue all writs necessary or appropriate in aid of [its] jurisdiction[] and agreeable to the usages and principles of law” under the terms of the All Writs Act. And although the All Writs Act does not create jurisdiction, it is well-settled, as I wrote earlier this year, that

[b]ecause the appellate courts will eventually have the power to review the lower court’s actions, the All Writs Act authorizes what is effectively (if not formally) appellate review at an interlocutory stage in order to correct those errors that would otherwise not receive meaningful appellate review–typically because the alleged injury caused by such errors would be irreparable after the fact. In this regard, although the All Writs Act does not create jurisdiction, it does promote the vindication of jurisdiction that already exists at points other than those expressly provided for by statute–to protect the court’s “potential” jurisdiction, as a 1966 Supreme Court decision put it, or to vindicate jurisdiction that it already exercised.

In other words, in any other criminal case, there is simply no question that, under the All Writs Act, the D.C. Circuit would have jurisdiction to issue an interlocutory writ of mandamus to confine a lower court to the proper exercise of its jurisdiction. I can’t imagine Judge Kavanaugh disagrees with those cases…

III.  Why 28 U.S.C. § 2241(e)(2) Doesn’t Foreclose Resort to the All Writs Act

Judge Kavanaugh’s stronger–albeit still unavailing–argument is that Congress expressly foreclosed the D.C. Circuit’s jurisdiction to issue writs of mandamus to the military commissions when it enacted the jurisdiction-stripping provisions of the Military Commissions Act of 2006. Although the D.C. Circuit has concluded that the MCA’s habeas-stripping provision (§ 2241(e)(1)) did not survive the Supreme Court’s 2008 decision in Boumediene v. Bush, it has upheld the non-habeas-stripping provision (§ 2241(e)(2)) as foreclosing jurisdiction over a range of civil claims, including Bivens suits for damages by former Guantánamo detainees.

As I’ve explained at great length previously, though, there are two separate problems with reading § 2241(e)(2)’s “any other action” language to also foreclose the jurisdiction of appellate courts to issue writs of mandamus in criminal appeals. First, as noted above, mandamus in this context is not an “other” action; it’s a “writ in aid of . . . jurisdiction” that already exists (to wit, the D.C. Circuit’s appellate jurisdiction over final CMCR judgments) at times other than those expressly provided for by statute. Put another way, the source of the D.C. Circuit’s appellate jurisdiction is the MCA provision giving it appellate jurisdiction over final judgments of the CMCR. Unless § 2241(e)(2) bars that jurisdiction, as well (and no one argues that it does–since that would be patently unconstitutional), then the All Writs Act empowers the D.C. Circuit to issue writs of mandamus in aid of that jurisdiction–at least when such relief is appropriate.

Second, Judge Kavanaugh’s analysis also neglects the significance of Congress’s decision to repeal, in 2009, a separate provision of the MCA–one that was far more explicit about applications like the one at issue here. As 10 U.S.C. § 950j(b) used to provide, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever . . . relating to the prosecution, trial, or judgment of a military commission under this chapter.” To be candid, I think the government (and Judge Kavanaugh) would have been on far firmer footing in arguing that that provision foreclosed mandamus relief in military commission cases, since it doesn’t just refer abstractly to “any other action,” as § 2241(e)(2) does, but specifically to “any claim or cause of action whatsoever.” Of course, I also think that such a reading of that provision would have raised serious constitutional questions in at least some cases. But for present purposes, what matters is that Congress repealed this provision in 2009–a repeal that should be given at least some significance under ordinary canons of statutory interpretation. Simply put, both the plain language of 2241(e)(2) and this subsequent history deprive that provision of the weight Judge Kavanaugh would place upon it.

IV.  Jurisdiction to Issue Administrative Stays

Finally, even if, contra the above analysis, Judge Kavanaugh was correct that the Court of Appeals lacks jurisdiction at this stage to reach the merits of Nashiri’s constitutional challenge to the CMCR’s composition, I would hope the above analysis suggests that the D.C. Circuit’s jurisdiction is at least a close question. In that regard, yesterday’s order was merely an administrative stay–to protect the Court of Appeals’ jurisdiction to decide whether it has jurisdiction on the merits. As the majority stressed in the order, “The purpose of this stay is to give the court 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.” In other words, the stay was to allow the D.C. Circuit to resolve its jurisdiction. Insofar as the federal courts generally have jurisdiction to determine their own jurisdiction, and the All Writs Act allows the D.C. Circuit to issue relief in aid of that jurisdiction, Judge Kavanaugh was simply wrong to conclude that “we have no authority to grant the stay in this case.”

In fact, the D.C. Circuit clearly had authority to issue the stay. And, if the above analysis is correct, it has authority to reach the merits of Nashiri’s constitutional challenge to the CMCR’s composition, as well. Whether that challenge is meritorious is, of course, a different question–and one on which I’ll (happily) defer to Marty.