al-Nashiri mandamus petition: Government response and oral argument date

The government today filed its opposition to al-Nashiri’s mandamus petition in which he is asking the U.S. Court of Appeals for the D.C. Circuit to enjoin the participation of two of the three members of the panel of the Court of Military Commissions Review in the government’s interlocutory appeal regarding dismissal of the MV Limburg bombing charges.  The government argues that the court of appeals lacks jurisdiction to consider the petition and, in the alternative, that al-Nashiri has failed to satisfy the substantive standards for mandamus relief–in particular, that he has not demonstrated a clear right to relief under either the Appointments Clause or the Commander-in-Chief Clause.

The court of appeals also today announced that oral argument on the petition will take place on Tuesday, February 10.

Steve’s earlier post on the jurisdictional question is here.  My post on the merits of the Article II arguments in favor of disqualification is here.  And I discuss the merits of the interlocutory appeal before the CMCR, regarding whether the bombing of the Limburg violated the laws of armed conflict, in this post and in part I of this one.



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. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).