Lots of attention has been focused both here and elsewhere in recent days on tomorrow’s en banc oral argument before the D.C. Circuit in “Al Bahlul IV,” which makes a lot of sense even if, like me, one is of the view that the ultimate result before the Court of Appeals may not matter that much. But as I explained back in October, the Court of Appeals will also soon hear oral argument (which, we now know, will be on February 17, 2016) in another major military commission case — that of Abd al-Rahim al-Nashiri, the defendant charged with, among other things, responsibility for the 2000 bombing of the USS Cole

On the merits, this appeal raises “the question of whether the commissions … may exercise jurisdiction over pre-9/11 offenses,” given that the Military Commissions Act itself limits the commissions’ jurisdiction to offenses “committed in the context of and associated with hostilities,” which the MCA defines as “any conflict subject to the laws of war.” But the district court declined to reach the merits of al-Nashiri’s claim, holding that, under the Supreme Court’s 1975 decision in Schlesinger v. Councilman, it should abstain from entertaining a pre-trial collateral challenge in favor of allowing the military commission itself to resolve al-Nashiri’s claims (which it has already rejected), and save any challenges to military jurisdiction for a post-conviction appeal.

Although al-Nashiri’s opening brief on the merits in the D.C. Circuit remains under seal, Eric Montalvo from the Federal Practice Group and I filed an amicus brief today on behalf of the National Institute of Military Justice, taking no position on the merits, but arguing that Judge Roberts was wrong to abstain from deciding them. In a nutshell, the brief offers three interrelated conclusions:

  1. 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).
  2. 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.
  3. 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.”

The brief quite consciously does not take a position on the merits of al-Nashiri’s claim, and the thorny question of when the armed conflict between the United States and al-Qaeda legally “began.” But it certainly does its best to explain why that question is properly presented in al-Nashiri’s pre-trial habeas petition — and why it therefore ought to be decided by the D.C. Circuit (i.e., the same court that would decide the matter de novo on a post-conviction appeal). And although the implications of such a ruling might not be as sweeping as the potential implications of what eventually happens in Al Bahlul, it’s not hard to see how the answer to the question of when the war “started” might bear on the far more important question that the D.C. Circuit also now has before it in the Warafi appeal — of when the war might actually “end.”