[00:00:01] Speaker 00:
Case number 15-1023 at L. Henry Abe Albrahim Hassan Mohammed Al Nasseri, a petitioner.

[00:00:11] Speaker 00:
Mr. Paradis with the petitioner appellate.

[00:00:13] Speaker 00:
Mr. Palmer for responding appellate.

[00:00:16] Speaker 05:
Good morning, Your Honors.

[00:00:18] Speaker 02:
Before we start, I just want to remind counsel and alert everyone in the courtroom that

[00:00:25] Speaker 02:
The record in this case contains some very highly classified materials.

[00:00:33] Speaker 02:
They will not be discussed in this session.

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We will be going into a classified session after the public session to discuss those.

[00:00:41] Speaker 02:
And this portion of the argument will be limited to the legal issues that lie at the heart of this case, all of which don't be disciplined or quite interesting.

[00:00:51] Speaker 02:
Mr. Kerry, let's go.

[00:00:54] Speaker 05:
Thank you, Your Honor, and may it please the Court.

[00:00:57] Speaker 05:
This case asks the same question as Hamdan versus Rumsfeld, but here the answer is clearer than it was 10 years ago.

[00:01:05] Speaker 05:
The Department of Defense may not convene a military commission to try offenses that by clearly established constitutional and statutory law are not triable by military commission.

[00:01:19] Speaker 05:
We ask for the intervention of this court because for 400 years it has been the role of habeas corpus to prevent the executive from removing to its own special tribunals the trial of crimes that belong in the courts of law.

[00:01:35] Speaker 03:
Something very important has happened since Hamdan, right?

[00:01:39] Speaker 03:
Congress has gotten involved, and Congress has created the military commissions, and Congress has made the judgment that they have created a tribunal that affords sufficient due process rights to enemy combatants, a considered, measured judgment by Congress.

[00:02:00] Speaker 03:
Why should we not defer to that judgment of Congress?

[00:02:04] Speaker 03:
That wasn't the case in Hamdan, right?

[00:02:06] Speaker 03:
Very different circumstance in Hamdan.

[00:02:08] Speaker 03:
Hamdan, the executive, had created its own system that the Supreme Court decided was insufficient.

[00:02:16] Speaker 03:
What we have now is a new actor, a pretty important actor, in Congress.

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And you're asking us that we should not defer to the considerative judgment of Congress.

[00:02:26] Speaker 03:
Why should we not?

[00:02:27] Speaker 05:
And respectfully, Your Honor, we're not only asking you to defer to the considered judgment of Congress.

[00:02:33] Speaker 05:
We're asking you to enforce the judgment of Congress.

[00:02:36] Speaker 05:
Remember what Hamdan was about.

[00:02:38] Speaker 05:
Hamdan was about whether the executive branch, in convening the military commission to try Hamdan, had complied with the various aspects of the Uniform Code of Military Justice governing military commissions.

[00:02:51] Speaker 05:
It was a statutory case, like this one.

[00:02:54] Speaker 05:
Here, Congress passed eight, excuse me,

[00:02:57] Speaker 05:
10 USC, section 950 PC, which says that an offense is only triable, triable at all, if it occurred in the context of and was associated with hostilities.

[00:03:09] Speaker 05:
And so when it did that, it was not only setting a limit on what the executive could try, it was actually codifying 200 years of Supreme Court precedent that says,

[00:03:20] Speaker 03:
The military should not- But your answer isn't dealing with my councilman point, right?

[00:03:25] Speaker 03:
I'm arguing the councilman abstention point.

[00:03:28] Speaker 03:
Congress has created this system.

[00:03:29] Speaker 03:
Why should the federal courts not abstain, hold it in advance as the district court did here, and let the military commission proceed as Congress intended it?

[00:03:39] Speaker 05:
Well, I would disagree that Congress intended the court to abstain in this case, because when Congress puts a limit on the executive, there may be cases that were, let me just say as a threshold matter, that this court has never extended abstention to the military commissions in Guantanamo, and for good reason, and I'll get to those reasons, but I think- Three of our district courts have.

[00:03:59] Speaker 03:
Right.

[00:04:00] Speaker 05:
Yes, but this court in OB Duller unanimously said that Councilman really does not seem appropriate to the Military Commissions, and that's not only after... In that case, there was no active Military Commission, right?

[00:04:13] Speaker 05:
Well, I would say there was no active Military Commission here.

[00:04:16] Speaker 05:
We have not had proceedings in the Military Commission in over a year.

[00:04:19] Speaker 03:
We are not scheduled to have... Here we have one that's convened and charged.

[00:04:23] Speaker 03:
He didn't have that in Ova Dula, right?

[00:04:25] Speaker 05:
That's correct.

[00:04:26] Speaker 05:
Well, with respect to councilmen, though, you did have one that was charged.

[00:04:30] Speaker 05:
You didn't have one that was convened.

[00:04:31] Speaker 05:
And in the ordinary councilman context, if this was an ordinary military justice case, that would be enough.

[00:04:38] Speaker 05:
As long as there's some proceeding underway in the military, there's an exhaustion requirement.

[00:04:43] Speaker 05:
So in Obidala, under pure councilman analysis, it should come out the other way.

[00:04:47] Speaker 05:
But even assuming there is an abstention doctrine that should be fashioned for military commissions generally,

[00:04:52] Speaker 05:
I think in this case, there are a number of reasons.

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One is irreparable harm, which we'll talk about in the closed section.

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But I think the most important question here is the statutory question.

[00:05:01] Speaker 05:
There are, by our count, two, maybe three statutory limits on what is tribal in a military commission.

[00:05:07] Speaker 05:
Those are the citizenship of the defendant.

[00:05:11] Speaker 02:
But wasn't that true in the court-martial system that's at issue in counselment?

[00:05:16] Speaker 05:
No, there was no statutory limit on what was tradable.

[00:05:19] Speaker 05:
Here we're actually asking this court to simply, this is, to put it bluntly, a Category 3 Youngstown case.

[00:05:26] Speaker 05:
You have a federal statute telling the executive it may only do something when.

[00:05:31] Speaker 05:
That thing has not happened and the executive has gone ahead and done it anyway.

[00:05:35] Speaker 06:
And so, if there was ever a case... Just pause briefly and tell us, that thing has not happened.

[00:05:41] Speaker 06:
What is that thing that has not happened?

[00:05:42] Speaker 05:
That thing is the existence of hostilities at any time relevant to the charges in this case.

[00:05:48] Speaker 06:
Isn't that the issue, whether that was the case or not?

[00:05:52] Speaker 06:
Well, that's certainly our narrative.

[00:05:55] Speaker 06:
I won't accuse you of reasoning in a circle, but you seem to be starting with your conclusion.

[00:06:00] Speaker 05:
Well, I don't think we are.

[00:06:03] Speaker 02:
I think if anyone comes to this court with a substantial claim, that's this court's language from...

[00:06:15] Speaker 02:
We have two different proceedings before us.

[00:06:19] Speaker 02:
We have your mandamus action and we have the appeal from the denial of irreparable of the preliminary injunction in the habeas case.

[00:06:26] Speaker 05:
That's right.

[00:06:27] Speaker 02:
Okay.

[00:06:28] Speaker 02:
Are you talking about that?

[00:06:29] Speaker 02:
What are you talking about now?

[00:06:30] Speaker 02:
Which one?

[00:06:31] Speaker 05:
Well, I think.

[00:06:31] Speaker 02:
Because the councilman has nothing to do with the mandamus action.

[00:06:36] Speaker 05:
That's absolutely correct.

[00:06:37] Speaker 02:
The councilman has nothing to do with it.

[00:06:39] Speaker 02:
But to succeed in that case, you have to have an indisputable right to relief.

[00:06:44] Speaker 05:
Yes, and we have that here.

[00:06:46] Speaker 05:
We certainly think we said it.

[00:06:48] Speaker 05:
And I hope this answers Judge Sintel's question.

[00:06:50] Speaker 02:
Well, why don't we talk about this for a minute and then come back, just to sort these out, because the legal standards are quite different, OK?

[00:06:59] Speaker 02:
But so you think the right is indisputable here.

[00:07:02] Speaker 02:
That's correct.

[00:07:03] Speaker 02:
That is, that this is, that the, that the, I need to be careful here, that the events that led to the charges against the state detainee occurred in a time and place where there was no, there were no hostilities, correct?

[00:07:20] Speaker 05:
Yes, that the President said as much.

[00:07:24] Speaker ?:
Yeah.

[00:07:26] Speaker 02:
That has to be in it.

[00:07:28] Speaker 02:
So are there any cases that, I see your evidence.

[00:07:31] Speaker 02:
You've got a lot of evidence about what the president and the secretary and other people have said.

[00:07:35] Speaker 02:
But for it to be indisputable, you need to cite some cases, I think, that say that's the kind of evidence we look to.

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And under the circumstances of this case, that evidence is conclusive.

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And I think one of your biggest problems is that I think in Hamdan,

[00:07:56] Speaker 02:
the justices and the court couldn't agree on when it started.

[00:08:02] Speaker 02:
That was part of the dispute in Hamdan.

[00:08:04] Speaker 05:
That was certainly part of the dispute.

[00:08:06] Speaker 02:
So if they couldn't agree, how can we say it's indisputable?

[00:08:09] Speaker 05:
It's indisputable, I would say, for two reasons.

[00:08:11] Speaker 05:
One, under this court's precedence, I would point this court specifically to Hamdan versus United States, where Judge Kavanaugh began his analysis of the question by saying, on September 11th, America went to war.

[00:08:22] Speaker 05:
That war continues.

[00:08:24] Speaker 06:
That's not even finding the fact that there were no hostilities before that.

[00:08:29] Speaker 02:
Well, it is, Your Honor, and here's why.

[00:08:31] Speaker 02:
It sounds like that's when it began.

[00:08:34] Speaker 05:
Exactly.

[00:08:35] Speaker 05:
And insofar as the charges here are all alleged to have occurred a year before September 11th.

[00:08:42] Speaker 06:
The beginning of what is described as the war in Judge Kavanaugh's quotation does not foreclose the possibility that there were hostilities preceding that.

[00:08:52] Speaker 05:
Well, Judge Kavanaugh's opinion may not foreclose that possibility.

[00:08:55] Speaker 06:
Well, it doesn't.

[00:08:57] Speaker 06:
But certainly it may not.

[00:08:58] Speaker 06:
It doesn't.

[00:08:58] Speaker 06:
That's just not logically compelled by that sentence.

[00:09:02] Speaker 05:
Well, but I would say the uniform acts of the political branches both before, during, and after 9-11.

[00:09:08] Speaker 03:
What do you do with the fact that in Hamdan, as Judge Tatel referred to, three of the justices thought they began in 1996.

[00:09:15] Speaker 03:
It was a debated issue.

[00:09:17] Speaker 03:
It's a tough call.

[00:09:18] Speaker 03:
It's a tough call when hostilities began.

[00:09:20] Speaker 03:
And that undercuts your argument that it's indisputably clear that they didn't precede 9-11.

[00:09:26] Speaker 05:
Well, again, remember what was at issue in Hamdan.

[00:09:28] Speaker 05:
Hamdan was a conspiracy case.

[00:09:30] Speaker 05:
And the question before the court was whether or not these acts and allegations that predated 9-11 were essentially part of the hostilities that could be tried when you also had post-9-11, 9-11 related conduct.

[00:09:43] Speaker 05:
That's ultimately what the district court, or excuse me, the.

[00:09:46] Speaker 03:
So do you disagree with my characterization that three of the justices of the United States Supreme Court in Hamdan,

[00:09:54] Speaker 03:
thought that the hostilities to which you're referring began as early as 1996.

[00:09:59] Speaker 03:
Am I reading it wrong?

[00:10:02] Speaker 05:
That's possible.

[00:10:03] Speaker 05:
I would say that's a possible reading of it, but I think it has to be read in the context of the issue before the court and also before Congress acted.

[00:10:12] Speaker 05:
And I think this does come back to Congress, because when Congress, remember, Section 950 PC, the hostilities, whether or not hostilities existed,

[00:10:21] Speaker 05:
make something tribal or not.

[00:10:23] Speaker 05:
That was not even part of the 2006 act.

[00:10:26] Speaker 05:
It certainly wasn't part of the Uniform Code of Military Justice.

[00:10:29] Speaker 05:
It was added in the 2009 act as part of a broader legislative effort to effectively codify Justice Steve, at least a large amount of Justice Stevens' opinion from Hamdan.

[00:10:41] Speaker 05:
And if you look to the Congressional Research Service

[00:10:44] Speaker 05:
summary of the amendments that we brought to this Court, they specifically refer to Hamdan as establishing what Section 950 P.C.

[00:10:53] Speaker 05:
was intended to do, not just Hamdan v. Romsfeld, but also what the Military Commission in the Hamdan case, post-Hamdan v. Romsfeld did.

[00:11:01] Speaker 02:
Mr. Mayor, unless my colleagues have any other questions about the mandamus petition, let's go on to the

[00:11:09] Speaker 02:
habeas issue.

[00:11:11] Speaker 02:
And the, is that okay with you?

[00:11:13] Speaker 02:
That's fine.

[00:11:14] Speaker 01:
Okay.

[00:11:15] Speaker 02:
And let me, and bring us back to this, the government's argument, of course, is that the district court should have abstained under counsel.

[00:11:26] Speaker 02:
And before we get into that, I just have a couple of, a couple of sort of status questions about this case.

[00:11:32] Speaker 04:
Yes, sir.

[00:11:33] Speaker 02:
What's the exact status of the commission proceeding?

[00:11:38] Speaker 05:
The military commission proceedings were stayed in large part in September of 2015?

[00:11:46] Speaker 05:
Sorry, 2014.

[00:11:49] Speaker 02:
Did your client move for that stay?

[00:11:53] Speaker 05:
No, the stay was the result of the fact that the government took an interlocutory appeal to the CMCR and that had the effect of essentially of staying a substantial part of the case.

[00:12:03] Speaker 02:
Why?

[00:12:05] Speaker 02:
Couldn't it go forward with respect to the other two incidents?

[00:12:09] Speaker 05:
And well, then the government appealed another aspect of the case on an interlocutory basis, which had the effect of staying the entire case, I want to say, in March of 2015.

[00:12:19] Speaker 02:
So, wait, I'm confused.

[00:12:20] Speaker 02:
So is it officially stayed now?

[00:12:24] Speaker 02:
That is a military commission.

[00:12:26] Speaker 02:
It is stayed.

[00:12:28] Speaker 05:
Yes, the military commission has stayed.

[00:12:29] Speaker 02:
And could the commission on its own decide tomorrow to proceed with the two charges that are still pending?

[00:12:41] Speaker 02:
Could it do that?

[00:12:42] Speaker 05:
No, because one of the grounds the government has subsequently appealed on, which ultimately caused the stay of the whole proceeding, dealt with the capital sentencing factors, which affected it all.

[00:12:52] Speaker 02:
All right.

[00:12:52] Speaker 02:
So now let's go back to the questions Judge Griffiths started on and the government's argument about counselment.

[00:12:58] Speaker 02:
And the government's argument is that a councilman requires abstention here, and the difference now is that unlike at the time of Hamdan, when the court did not abstain, we now have a congressional, reenacted system to which the government argues the federal courts should abstain.

[00:13:25] Speaker 02:
That's their argument.

[00:13:26] Speaker 05:
Yes, I understand their argument.

[00:13:27] Speaker 05:
And I would say a federally enacted system certainly is a necessary condition for abstention.

[00:13:33] Speaker 05:
And again, we're not disputing that.

[00:13:35] Speaker 05:
We're simply saying that when the very limits Congress has imposed as part of that system, as they had in Hamdan.

[00:13:41] Speaker 05:
Again, remember, Hamdan is about whether or not the executive was complying with, as I think Justice Kennedy said, the statutory limits on the power of the executive to convene military commissions.

[00:13:50] Speaker 05:
And so when you're dealing with that narrow question, and again, I think there are only three

[00:13:54] Speaker 05:
in the Military Commissions Act that we have been able to find.

[00:13:57] Speaker 05:
It's the hostilities question, citizenship, and double jeopardy.

[00:14:00] Speaker 05:
And those are the only three rights not to be tried, so to speak, that exist in the Military Commissions Act.

[00:14:05] Speaker 05:
And so I think when you're dealing with those, abstention, no abstention, Military Commission, no abstention, those are just...

[00:14:10] Speaker 05:
Those are threshold questions that, to use this court's language from the earlier iteration of the Hamdan case, that raise a substantial challenge to the military's right to try them at all.

[00:14:21] Speaker 05:
So even if, again, an abstention doctrine were appropriate, when you're attempting to enforce limits Congress has imposed, as they were

[00:14:29] Speaker 05:
excuse me, as they were in Hamdan, that's just not where councilman has to back off there because otherwise you have the executive branch essentially running roughshod not only over the courts but over Congress and over the limits Congress has put on to the executive.

[00:14:45] Speaker 02:
Your argument is that these offenses are not triable, correct?

[00:14:49] Speaker 05:
Yes, that's what the statute says.

[00:14:50] Speaker 02:
Suppose, just as a hypothetical, suppose the government's right

[00:14:55] Speaker 02:
that these are really not questions of whether a detainee is triable, but they're elements of the offense that have to be proven during the hearing.

[00:15:06] Speaker 02:
Suppose that's right.

[00:15:08] Speaker 02:
Okay, they're just elements of the offense.

[00:15:11] Speaker 02:
What are the other basis for your claim that detainee has for claiming a right not to be tried?

[00:15:18] Speaker 02:
A twofold.

[00:15:18] Speaker 02:
A constitutional?

[00:15:19] Speaker 05:
Yes, it is a constitutional right.

[00:15:22] Speaker 05:
This is actually the identical claim that was raised in Reed v. Covert.

[00:15:26] Speaker 05:
And in Reed v. Covert, I would say the statute went the other way.

[00:15:28] Speaker 05:
Congress had authorized the trial of dependents accompanying the armed forces overseas.

[00:15:35] Speaker 05:
There was even a treaty authorizing that.

[00:15:37] Speaker 05:
And the Supreme Court intervened pre-trial on the grounds that the executive may not circumvent the courts of law to try offenses by military tribunal when they did not occur in the context of hostilities.

[00:15:49] Speaker 05:
And just to finish that thought, and that was to distinguish Madsen versus Kinsella, which the court had only decided two or three years earlier, where they had held that the military may try civilians for offenses occurring on the content.

[00:16:05] Speaker 06:
constitutional ground or on the extent of the statute?

[00:16:09] Speaker 05:
It struck a statute down, Your Honor.

[00:16:10] Speaker 05:
It was decided on Article 3, Fifth and Sixth.

[00:16:15] Speaker 05:
And Justice Harlan, I would say, concurred separately on Eighth Amendment grounds because he said in the context of capital cases, these safeguards absolutely come to the fore.

[00:16:24] Speaker 05:
And the Supreme Court reaffirmed that in, I think, 1960 in Christian v. Hagen.

[00:16:30] Speaker 02:
I just have two quick questions about irreparable injury.

[00:16:37] Speaker 02:
It has nothing to do with the facts.

[00:16:39] Speaker 02:
One of the claims is that being tried before a military commission puts the detainee at a disadvantage because he's also facing trial in the Southern District, right?

[00:16:50] Speaker 05:
That's correct.

[00:16:51] Speaker 02:
But hasn't Congress banned transferring any detainees to United States courts?

[00:16:58] Speaker 05:
Yes, they've done so in the National Defense Appropriate Authorization Act.

[00:17:03] Speaker 05:
That's up for review every year.

[00:17:05] Speaker 05:
It's an annual political fight.

[00:17:06] Speaker 05:
The president vetoed it last year only to sign it later.

[00:17:10] Speaker 05:
So I think that certainly is, to the extent that's a restriction at all, I don't think Al-Nashir can hang his hat on it.

[00:17:16] Speaker 02:
And finally, on irreparable injury, assume that we thought counselment and abstention was not appropriate, that you're right.

[00:17:24] Speaker 02:
Would you, is it your view that we should go on and address the other elements of primary injunction or send it back to the district court?

[00:17:34] Speaker 05:
Given the posture of this case, particularly the fact that it's been consolidated with the mandamus case, I think this court is in as good a position to provide clarity on this issue as the district court would be, say, six months from now if it was remanded.

[00:17:49] Speaker 05:
But if this court does find counselmen's inappropriate, then yes, the case could be remanded to the district court for further proceedings, in a habeas case, like in Reed versus Covert, for that matter.

[00:18:02] Speaker ?:
OK.

[00:18:02] Speaker 02:
Anything else?

[00:18:03] Speaker 02:
OK, thank you.

[00:18:03] Speaker 02:
Thank you, Your Honor.

[00:18:15] Speaker 04:
Good morning, I'm Joseph Palmer from the Justice Department.

[00:18:18] Speaker 02:
Let me just, before you get into it, I just have a couple of fact questions for you.

[00:18:22] Speaker 02:
The detainee says that the trial in this case before the Commission at the earliest won't be until 2018.

[00:18:31] Speaker 02:
Do you disagree with that?

[00:18:34] Speaker 02:
Do you think that's right?

[00:18:37] Speaker 04:
I don't think we disagree necessarily.

[00:18:39] Speaker 04:
There isn't a set trial date at this point, and the Petitioner's Council is correct, but the proceedings are in general stayed for purposes of the interlocutory review.

[00:18:52] Speaker 04:
I'm not sure the extent to which that stay has actually delayed the proceedings further because of the discovery, the broad discovery that the military commission has ordered remains ongoing and the government is continuing to comply with that order.

[00:19:07] Speaker 02:
But do you agree with Mr. Paradis that until the CNCR issue is resolved, this can't go forward, right?

[00:19:17] Speaker 02:
The military commission could not decide to proceed on the two other charges.

[00:19:24] Speaker 02:
Is that right?

[00:19:25] Speaker 04:
Yes, I think that's correct.

[00:19:26] Speaker 04:
Okay.

[00:19:27] Speaker 02:
And one other question.

[00:19:29] Speaker 02:
If someone is convicted by a military commission and they first go to the convening authority, right?

[00:19:39] Speaker 02:
Is that where the appeal goes first?

[00:19:41] Speaker 04:
That's correct.

[00:19:41] Speaker 02:
And am I reading this correctly that there's no deadline on when the convening authority acts?

[00:19:49] Speaker 02:
Do you know of any?

[00:19:50] Speaker 04:
I'm not aware of a deadline for the community action.

[00:19:54] Speaker 04:
All right.

[00:19:54] Speaker 04:
OK, great.

[00:19:55] Speaker 02:
And one last question.

[00:19:57] Speaker 02:
Could the petitioner here, could he have filed a mandamus action with the CMCR, assuming it was properly constituted?

[00:20:09] Speaker 04:
I'm not sure that that's precisely clear, Your Honor.

[00:20:18] Speaker 04:
Was Your Honor's question about the Court of Military Commission Review?

[00:20:21] Speaker 04:
Yeah.

[00:20:22] Speaker 04:
The rules for that court, as petitioner points out, indicate that such a petition would not be well taken.

[00:20:31] Speaker 04:
But the question of whether

[00:20:36] Speaker 04:
those rules are inconsistent with the statute in light of this court's decision in this case last year that this court had mandamus jurisdiction is perhaps unclear.

[00:20:45] Speaker 04:
Okay.

[00:20:45] Speaker 04:
Great.

[00:20:46] Speaker 04:
Thank you.

[00:20:47] Speaker 04:
If I could just briefly address that time out of my allocation, not yours.

[00:20:53] Speaker 04:
If I might just quickly address the clear and disputed point that Judge Griffith was discussing, which is to say that, of course, this court made clear in last year's mandamus petition that open questions of law are not suitable for mandamus.

[00:21:09] Speaker 04:
And as of the time of hand-in, of course, this was an open question.

[00:21:12] Speaker 04:
It has only become more

[00:21:17] Speaker 04:
open, so to speak, since Congress has acted by specifically providing in the Military Commissions Act that military jurisdiction can be found for offenses that are occurring before, on, or after September 11th.

[00:21:31] Speaker 03:
But doesn't Hamdan suggest, I think it's note 20 in Hamdan suggests that there is an area that we will not allow military commissions to consider, right?

[00:21:47] Speaker 03:
That there's this personal jurisdiction.

[00:21:49] Speaker 03:
area, they call it.

[00:21:51] Speaker 03:
When there's a claim, and I think the footnote says that when there's a claim that the military authority is acting ultra virus, that in those cases, we're not going to abstain.

[00:22:05] Speaker 03:
We're going to let the federal courts get involved.

[00:22:07] Speaker 03:
Why isn't that this case?

[00:22:10] Speaker 03:
Isn't that the heart of their argument that the military commission has an authority

[00:22:17] Speaker 03:
to try this sort of issue?

[00:22:22] Speaker 04:
Your Honor, I think the petitioner's claim here is not of that type, but is instead closely analogous to the claim that was at issue in Councilman itself.

[00:22:32] Speaker 04:
The defendant in Councilman contended that his offenses were not triable by a military court,

[00:22:40] Speaker 04:
because they were not service-connected.

[00:22:41] Speaker 04:
And the Supreme Court had held that that service-connection requirement was necessary for the offense to be triable in a military court.

[00:22:47] Speaker 04:
So is that footnote in Hamdan wrong?

[00:22:50] Speaker 04:
That footnote refers to claims of personal jurisdiction.

[00:22:54] Speaker 03:
And for purposes... As I recall, they described it in terms of ultra-virus jurisdiction.

[00:22:59] Speaker 03:
That's what we have here, isn't it?

[00:23:01] Speaker 04:
I think this claim that it is for the jurisdictional... Maybe you're right.

[00:23:05] Speaker 03:
They used the phrase personal jurisdiction, but in explaining it, it is more expansive than what we traditionally think of as personal jurisdiction.

[00:23:12] Speaker 03:
Lisa Zyrin.

[00:23:14] Speaker 04:
The way we understand that councilman exception and that limitation is when petitioners raise a claim of that by their status, they are not subject to military jurisdiction at all, analogous to the civilians, the undisputed civilians who raise claims in the Reed and the Toth line of cases.

[00:23:36] Speaker 04:
In those cases, then, there may be an exception to counselment.

[00:23:40] Speaker 04:
But when the claim is one that the type of offense is not... The timing of offense in this case.

[00:23:47] Speaker 06:
In the original Hamden, it was the type of offense.

[00:23:49] Speaker 06:
Here it's the timing.

[00:23:52] Speaker 06:
Or do I misunderstand?

[00:23:54] Speaker 04:
No, I think that's correct, Your Honor.

[00:23:56] Speaker 04:
But it has to do with whether this conduct is triable in a military commission.

[00:24:01] Speaker 04:
And the issue is one that involves facts and that involves the application.

[00:24:05] Speaker 03:
But it's going to be a tough issue, right?

[00:24:06] Speaker 03:
The very point you make that it's not indisputably clear shows this is a really difficult legal issue.

[00:24:13] Speaker 03:
When do hostilities begin?

[00:24:15] Speaker 03:
Why wouldn't a federal district court be better situated than a military commission to take that issue up?

[00:24:21] Speaker 03:
There's no particular expertise that the Military Commission has in determining when hostilities begin under the Constitution, is there?

[00:24:28] Speaker 04:
Well, with respect, John, I think there is.

[00:24:30] Speaker 04:
The Military's expertise is relevant to that question, although I would say the first answer to the question is that Congress clearly intended in the Military Commission's Act that these claims be decided in the first instance in the Military Commission.

[00:24:44] Speaker 04:
And that this court's review of that question would benefit from the application of military expertise to the question of whether the hostilities question turns in part on the military nature of the violent acts between the parties to the conflict.

[00:25:04] Speaker 04:
And it also turns on the military nature of the particular conduct that the defendant is accused of committing.

[00:25:10] Speaker 04:
And so the military commission.

[00:25:11] Speaker 02:
But all that information, all that evidence would be before the district court.

[00:25:16] Speaker 02:
District court would have all that.

[00:25:18] Speaker 04:
Well, at this point, I don't think the evidence is before the district court.

[00:25:21] Speaker 02:
No, but that's because the district court abstained.

[00:25:23] Speaker 02:
But if the district court's not supposed to,

[00:25:26] Speaker 02:
All of that evidence that you just described would be before the district court, and the district court would make a decision about whether this was, quote, hostilities within the meaning of the statute.

[00:25:37] Speaker 02:
See, I'm just pursuing Judge Griffith's question.

[00:25:40] Speaker 02:
Where's the expertise to which we would defer

[00:25:45] Speaker 02:
Sounds like all there is is a lot of facts, which can be presented either to the commission or district court.

[00:25:51] Speaker 02:
But there's really no military expertise on this question.

[00:25:54] Speaker 02:
In fact, Sunique can make a pretty good argument that under the Constitution, ultimate decisions about when hostilities exist are not military decisions.

[00:26:08] Speaker 04:
Well, first, if I could take that in parts, there's no question that the ultimate decision belongs to this court.

[00:26:13] Speaker 04:
We're not disputing that the Military Commission judgment cannot become final until this court has reviewed the hostilities question.

[00:26:22] Speaker 04:
But if the district court were to take it up without the expertise of the military commission members and of the Court of Military Commission Review, which Congress set up to become experts not only in facts, but in issues related to the law of war.

[00:26:37] Speaker 04:
But again, I think the military commission members are well situated as military experts to recognize the essentially military character of the terrorist attacks that are alleged in the case.

[00:26:49] Speaker 02:
extraordinarily counterintuitive to think that a judgment about when hostilities exist is a judgment on which the military, that courts owe deference to the military on that question.

[00:27:03] Speaker 02:
That just doesn't seem right to me under our Constitution.

[00:27:07] Speaker 02:
That seems like a fundamentally presidential and congressional question, not a military question.

[00:27:15] Speaker 02:
And for purposes of our discussion here, let's just assume this.

[00:27:18] Speaker 02:
I hear your point that the D.C.

[00:27:20] Speaker 02:
Circuit can ultimately address this question after, if there's a conviction, but assume for purposes of our discussion today that the detainee has a good case for irreparable injury.

[00:27:32] Speaker 02:
Right?

[00:27:33] Speaker 02:
Let's just assume that for purposes of argument.

[00:27:38] Speaker 02:
Okay.

[00:27:40] Speaker 02:
Then, under those circumstances, saying that, well, we can get to this after he's convicted doesn't really respond to the question, because he has a pending motion for preliminary injunction to avoid irreparable injury.

[00:27:54] Speaker 02:
So then we do have to squarely face the question about, as you raised it, about counsel.

[00:28:02] Speaker 02:
And Judge Griffith's question really is, what's the reason to wait?

[00:28:10] Speaker 02:
What would the courts gain from that, given his meritorious claim for irreparable injury?

[00:28:18] Speaker 04:
Well, I think the first answer, and a crucial answer, is that Congress has made clear its intent that these questions be decided in the first instance in the military.

[00:28:30] Speaker 04:
How has it made that clear?

[00:28:32] Speaker 04:
I think it has made that clear, Your Honor.

[00:28:33] Speaker 02:
No, I just said how.

[00:28:35] Speaker 02:
I wasn't charging you.

[00:28:36] Speaker 02:
I'm just asking you how.

[00:28:39] Speaker 04:
Primarily in creating the integrated system of military review and appellate procedures,

[00:28:46] Speaker 04:
before the convening authority and the CMCR, and also in providing for this court's review in section 950-G of the Military Commissions Act, there's an exhaustion requirement, and there's also a statement that this court... But that doesn't answer... To me, the question is, has Congress given to the Military Commission

[00:29:04] Speaker 03:
the authority to decide the issue before us that the petitioner wants to be before us now, and that is whether there were hostilities involved, right?

[00:29:16] Speaker 03:
What is your authority for your argument, I take it to be, that Congress has given to the Military Commission the authority to make that decision and not to allow the Federal District Court to do so while it's considering it?

[00:29:31] Speaker 03:
That issue about whether hostilities exist.

[00:29:36] Speaker 04:
The Military Commissions Act states that the Military Commission is a competent tribunal for jurisdiction.

[00:29:41] Speaker 04:
The Military Commissions Act... For jurisdiction of what?

[00:29:46] Speaker 04:
For jurisdiction for purposes of a Military Commission trial, for satisfying the jurisdictional... For war crimes, right?

[00:29:54] Speaker 03:
For war crimes.

[00:29:55] Speaker 03:
And the question here is, are we in a circumstance where a war crime is capable of being committed?

[00:30:01] Speaker 03:
And has Congress given the Military Commission the authority to decide that?

[00:30:05] Speaker 03:
And if so, where?

[00:30:08] Speaker 04:
Again, in creating the statutory requirement in Section 950 PC that states that a nexus to hostilities must be proved,

[00:30:17] Speaker 04:
for all of the offenses, and in making that an element of the offenses, the implication there is that Congress intended for that issue to be resolved in the first instance by the military commission, then through the military system of appeals, and then ultimately decided by discord.

[00:30:37] Speaker 04:
says that that kind of claim should be deferred to by the federal courts.

[00:30:43] Speaker 03:
So I hear you saying because it's an element of the offense and therefore the military commission has authority to take it out.

[00:30:51] Speaker 03:
Is that right?

[00:30:52] Speaker 03:
That's right.

[00:30:52] Speaker 06:
Okay.

[00:30:53] Speaker 06:
What's the closest case to this one where Councilman has been applied?

[00:30:59] Speaker 06:
That is to say, if you would, is there a case where the courts have applied Councilman extension when the issue involved the jurisdiction over a non

[00:31:14] Speaker 04:
Well, I'm not aware of any cases other than the district court cases here and in this case in Washington where Councilman has been applied in the military commission context.

[00:31:26] Speaker 04:
But again, I think that Councilman, the claim there is closely analogous to the claim here.

[00:31:31] Speaker 04:
And there is the reasons that the Supreme Court gave in Councilman for deferring to this system that Congress created with a right of direct appeal to

[00:31:43] Speaker 04:
courts independent of the military.

[00:31:44] Speaker 04:
That rationale applies with full force to the military.

[00:31:47] Speaker 02:
Well, let's pursue that a little bit.

[00:31:51] Speaker 02:
I think that's the heart of the question that you're now raising.

[00:31:54] Speaker 02:
But first of all, you're not arguing, are you, that councilmen requires the courts to abstain, are you?

[00:32:05] Speaker 02:
right?

[00:32:06] Speaker 01:
No, you're not making that argument.

[00:32:07] Speaker 01:
Okay.

[00:32:07] Speaker 01:
We're not making that argument.

[00:32:08] Speaker 02:
So what we have to do is what you just started to do, which is to look at the at the situation at the court marshals situation council and look at the one we have here, right?

[00:32:18] Speaker 02:
And see whether the same factors call for abstention here as they did there, right?

[00:32:23] Speaker 02:
So let me just tell you, just let me just suggest to you that what I see the differences is being and you you tell me what your reaction is.

[00:32:32] Speaker 02:
Okay, so

[00:32:35] Speaker 02:
The petitioner here is not a member of the armed forces, like he was in Councilman.

[00:32:39] Speaker 02:
So there's no unique interest in military discipline at work.

[00:32:42] Speaker 02:
That's number one.

[00:32:44] Speaker 02:
Number two, the military commissions are not a self-contained judicial system in which Congress excluded the federal courts.

[00:32:53] Speaker 02:
In fact, the system includes the federal courts, us, the DC Circuit.

[00:32:59] Speaker 02:
Third, there's four of these, by the way.

[00:33:01] Speaker 02:
Third.

[00:33:03] Speaker 02:
The system here isn't providing, applying a unique body of law, like court martial law, right?

[00:33:12] Speaker 02:
Quote, without counterpart in civilian life.

[00:33:16] Speaker 02:
That's a quote from Councilman.

[00:33:18] Speaker 02:
You know, quite to the contrary, federal courts exercise jurisdiction over

[00:33:24] Speaker 02:
similar or identical criminal behavior.

[00:33:27] Speaker 02:
And finally, the court-martial system, unlike the court-martial system, this system isn't permanent.

[00:33:35] Speaker 02:
It's convened when needed, and it ends when the war ends.

[00:33:39] Speaker 02:
So when I look at all of those, I say to myself, none of the factors that drove abstention

[00:33:48] Speaker 02:
there, even though now we do have Congress acting, which I totally agree with you, puts a thumb on the scale of abstention.

[00:33:55] Speaker 02:
Even given that, and these fundamental differences, it just does not look like a system where, you know, Congress intentionally excluded the federal courts, created a separate independent system for review.

[00:34:12] Speaker 02:
It just doesn't feel like abstention.

[00:34:15] Speaker 02:
So what's the answer to all that?

[00:34:18] Speaker 04:
Your Honor, I may need you to remind me of some of your lists, but taking up the first... Should we go back to a one-by-one?

[00:34:26] Speaker 04:
Taking up the first one of the military's interests, it's true that there isn't the precise interest and discipline of service members, but there is a military interest of equal or greater weight at issue in this case in the interest in

[00:34:41] Speaker 04:
deterring and impunishing violations of the law of war is an important incident of war as the Supreme Court has recognized.

[00:34:48] Speaker 04:
And I think that the interest in this case and the magnitude of the offenses that are alleged is at least as strong as the interest in the marijuana offense that was at issue in Castleman.

[00:35:00] Speaker 02:
I hear you.

[00:35:01] Speaker 02:
You made that point in your brief, and I think that's a good point.

[00:35:04] Speaker 02:
But the fact is there's a huge overlap between

[00:35:08] Speaker 02:
conduct that violates the laws of war, conduct that violate U.S.

[00:35:12] Speaker 02:
Criminal Code, and we have, you know, dozens and dozens of terrorism cases pending in the federal courts.

[00:35:19] Speaker 02:
So it's not like a separate system.

[00:35:22] Speaker 02:
And these cases are tried in the federal courts and before military commissions.

[00:35:28] Speaker 02:
Whereas in Councilman, there was a distinct, powerful interest to get these court-martial cases decided in a separate system, you know, where Congress would carefully balance all these rights.

[00:35:40] Speaker 02:
And there was no counterpart in the federal courts.

[00:35:42] Speaker 02:
Nothing.

[00:35:44] Speaker 04:
I'm not sure it's true that the offense in Councilman would not have been triable in federal courts.

[00:35:49] Speaker 04:
The offense was trafficking in marijuana off of the military posts.

[00:35:54] Speaker 04:
But putting that aside, the separateness of the systems

[00:36:01] Speaker 04:
doesn't eliminate the risk of interference and of confusion that would occur if we had multiple district courts considering multiple habeas petitions out of multiple military commission trials and the complete separateness of the court-martial system from the federal courts.

[00:36:20] Speaker 02:
That's not exact.

[00:36:21] Speaker 02:
I mean, I guess that might be right if that was the world, but we've got one case.

[00:36:27] Speaker 02:
And in a case where you agree it might not even be tried for two or three years, where's the risk of interference with anything here?

[00:36:36] Speaker 02:
And the military commission is staying.

[00:36:41] Speaker 02:
There's no risk at all of interference in the commission's action.

[00:36:47] Speaker 02:
Is there, in fact?

[00:36:49] Speaker 04:
Well, there's other cases pending and multiple, at this point, habeas petitions pending in district court.

[00:36:59] Speaker 04:
And so we think there's still a substantial risk of conflicting judgments when issues are before the military commission at the same time as they are before a federal district court.

[00:37:17] Speaker 02:
What is the best argument for applying counselment here?

[00:37:23] Speaker 02:
Which of all these factors that they talked about at Councilman, or is it a combination of factors?

[00:37:31] Speaker 04:
I think it's a combination, but the most important principle is a deference to Congress and to its decision to create a system of military review and appellate procedures that has

[00:37:47] Speaker 04:
final judgment review by an independent court and where the application, this court's ultimate review would be benefited by development of the record and application of the military commission and military appellate court's expertise.

[00:38:03] Speaker 06:
What is your position as to what happens if we decide Councilman does not apply?

[00:38:09] Speaker 06:
What should we do then?

[00:38:11] Speaker 04:
Well, I think that the court should, in addition to counselment, we think that section 950-G itself indicates that these interlocutory challenges to military commission rulings should be heard in this court by mandamus, that the 950-G gives exclusive jurisdiction to this court, and that habeas jurisdiction should only come after this court has acted.

[00:38:41] Speaker 06:
So what should our order say at the end of the opinion if we decide Councilman does not apply?

[00:38:49] Speaker 06:
We have this here on the two cases intertwined.

[00:38:53] Speaker 06:
You're arguing both of them.

[00:38:54] Speaker 06:
What is our order going to be at the end of this if we decide Councilman doesn't apply?

[00:38:59] Speaker 04:
It should say that section 950 G precludes

[00:39:03] Speaker 04:
a challenge to a military commission ruling by habeas, and instead that those, that interlocutory challenge should be decided by this court on mandamus, and then the court should deny the mandamus petition because the claims aren't clear and indisputable.

[00:39:17] Speaker 02:
Well, suppose we don't agree with that.

[00:39:22] Speaker 02:
Just to follow up Judge Sintel's question, suppose we think, number one, there shouldn't be abstention, and number two, there is habeas jurisdiction.

[00:39:28] Speaker 02:
Then what?

[00:39:30] Speaker 04:
Well, ultimately, we think that the issue is one that requires, if the court's determination is that the habeas court should reach the merits of the hostilities question, then we think it should go back rather than that this court should.

[00:39:42] Speaker 02:
Including on irreparable injury?

[00:39:44] Speaker 02:
That should go back too.

[00:39:48] Speaker 04:
Yes, if the court determines that that requirement has been satisfied.

[00:39:54] Speaker 03:
Let me ask you just one other question.

[00:39:56] Speaker 03:
I'm sorry.

[00:39:56] Speaker 03:
I didn't get the answer to that.

[00:39:59] Speaker 03:
As I understood the question was, if we disagreed with you on counselment,

[00:40:03] Speaker 03:
And then we have in front of us the preliminary injunction.

[00:40:07] Speaker 03:
We're then ruling on the preliminary injunction.

[00:40:09] Speaker 03:
And an alternate ground for the denial of the preliminary injunction was that there was no irreparable harm.

[00:40:16] Speaker 03:
And what is your... I thought that was the question, Judge.

[00:40:20] Speaker 03:
Tatel was asking, what do we do about that?

[00:40:21] Speaker 03:
I think that this... We send that back as well?

[00:40:24] Speaker 04:
No, we've argued that this court could affirm on that alternative ground and find that the... You're not giving that up then by your answers to Judge Tatel.

[00:40:32] Speaker 06:
better.

[00:40:33] Speaker 04:
No, I didn't mean to.

[00:40:34] Speaker 04:
I think I misunderstood Judge.

[00:40:36] Speaker 02:
No, I understood your point.

[00:40:37] Speaker 02:
Your point is that if we can look at this ourselves and if we think there's no upper boundary, that's another basis.

[00:40:42] Speaker 06:
Right?

[00:40:44] Speaker 06:
Okay, I just this is appealable.

[00:40:47] Speaker 06:
If the process goes ahead with the trial, etcetera, it winds up with an appeal to federal court anyway in the end.

[00:40:55] Speaker 06:
So you would say that there is an adequate remedy.

[00:40:57] Speaker 06:
There's not even a nut.

[00:40:59] Speaker 04:
That's correct, Your Honor, just as the Court found with the petitioners, may name the petition last year.

[00:41:07] Speaker 02:
I just have one more, Counsel, one more question.

[00:41:09] Speaker 02:
Your emphasis in your briefing here is that the difference between this and Hong Kong now is we have Congress creating the system, right?

[00:41:16] Speaker 04:
Yes.

[00:41:17] Speaker 02:
We have to defer to it.

[00:41:19] Speaker 02:
Suppose Congress, after congressional hearings, creates a special court system for domestic terrorism, to try cases of domestic terrorism, and it authorizes the Secretary of Defense to create special panels to try people accused of domestic terrorism in the United States, and that's then appealable to the D.C.

[00:41:40] Speaker 02:
Circuit.

[00:41:44] Speaker 02:
And the first person arrested under this system files a habeas petition, and would the government, would you say Councilman would keep the courts out of that?

[00:41:56] Speaker 04:
I think probably not, Your Honor, because that claim would be analogous to the Reed versus Covert type claim.

[00:42:02] Speaker 04:
That civilian would have a constitutional claim without any disputed facts, without any need for application of military expertise, but that by virtue of his status as a U.S.

[00:42:17] Speaker 04:
civilian,

[00:42:18] Speaker 04:
he wasn't subject to the jurisdiction of that court.

[00:42:21] Speaker 04:
And that claim wouldn't have the same rationale as the court relied on in councilman saying this is the kind of question on which our review would benefit from the military taking the first view.

[00:42:34] Speaker 02:
And suppose we didn't agree with you that there's any military expertise at issue here.

[00:42:40] Speaker 02:
Then aren't the cases identical?

[00:42:42] Speaker 04:
Well, there's still the distinction between a personal jurisdiction, a question of status.

[00:42:47] Speaker 04:
And for purposes of this appeal, the petitioner hasn't challenged his status as an alien, unprivileged, and negligent.

[00:42:53] Speaker 04:
Instead, his claim is focused on whether his offenses were committed in the context of hostilities, which is closely analogous to the claim of that issue in Councilman.

[00:43:03] Speaker 03:
Let me ask you a question.

[00:43:04] Speaker 03:
The stay of the district court proceedings, did it stop all of the habeas claims?

[00:43:12] Speaker 03:
Because there were habeas claims filed in 2008 that were about, I believe, were about condition of confinement and status as an enemy combatant.

[00:43:20] Speaker 03:
What is the status of those claims?

[00:43:22] Speaker 04:
As I understand it, that petition has been replaced, that is, petitioner asked to supplement that petition with the petition raising the hostilities claim and that that petition has now gone away and been replaced by a petition seeking to enjoin the Military Commission on the grounds that are before the Court.

[00:43:41] Speaker 03:
So the entire habeas case in the District Court has stayed?

[00:43:44] Speaker 03:
All elements of it have been stayed?

[00:43:47] Speaker 03:
I think that's correct, Your Honor.

[00:43:49] Speaker 02:
Thank you.

[00:43:51] Speaker 02:
Mr. Perez, you use up all your time.

[00:43:53] Speaker 02:
We'll give you three minutes.

[00:44:02] Speaker 05:
I'd mainly like to just address factual points that my friend raised, and then we can take any of your questions.

[00:44:10] Speaker 05:
But what I would start with is I would add a fifth factor to your factor, Judge Tatel, and I think it's the most important one, and it's the lack of any kind of speedy trial mechanism.

[00:44:19] Speaker 05:
Courts martial are notoriously quick.

[00:44:22] Speaker 05:
And there is confidence that the courts can have that the review procedures, the trial itself, will happen promptly so that we're not in the situation where, as here, and we've sort of counted this out, that the earliest this case will get to this court is probably 2024.

[00:44:39] Speaker 05:
And that's a very long time for this important of an issue to remain hanging over this case.

[00:44:46] Speaker 05:
And I think it's also a very long time for an important issue such

[00:44:52] Speaker 05:
It's a very long time for the very question of whether or not he is triable.

[00:44:56] Speaker 05:
And that's the language Congress used, triable.

[00:44:58] Speaker 05:
It didn't say it's an element of all the offenses.

[00:45:00] Speaker 05:
They said the convening authority may not convene a military commission unless the offenses are triable.

[00:45:08] Speaker 05:
And these offenses are not triable.

[00:45:10] Speaker 02:
But your argument doesn't turn on you winning that argument, right?

[00:45:13] Speaker 02:
The statutory argument.

[00:45:15] Speaker 05:
I'm sorry, I misunderstood you.

[00:45:16] Speaker 02:
Your case doesn't turn on you prevailing on the statutory issue.

[00:45:20] Speaker 05:
Right, we have both statutory and constitutional grounds.

[00:45:23] Speaker 05:
And I would just pick up on the point about Reed versus Covert.

[00:45:26] Speaker 05:
There was no question about the civilian status in Reed versus Covert.

[00:45:30] Speaker 05:
The question was whether or not civilians accompanying the armed forces to Japan and the United Kingdom, which were not theaters of hostilities at the time the offenses were committed, could be tried in the same way that someone who had been tried in Germany

[00:45:44] Speaker 05:
an identical person could be tried in Germany for the identical offense where hostilities were in fact ongoing.

[00:45:51] Speaker 05:
So that is this case.

[00:45:54] Speaker 05:
With respect to Congress's intent to exclude this court's jurisdiction or habeas jurisdiction, if this was 2006,

[00:46:01] Speaker 05:
I would probably have to begrudgingly agree with my friend, because as part of the 2006 act, Congress enacted section 950 J.B., which said that any challenge to a military commission whatsoever, habeas corpus, you name it,

[00:46:17] Speaker 05:
is barred.

[00:46:20] Speaker 05:
And in 2009, Congress repealed that without changing any other part of the Military Commissions Act, not the least Section 950G, which is just this court's appellate jurisdiction.

[00:46:31] Speaker 05:
So if Congress had an intent to exclude the courts, particularly on a question that is so traditionally heard in habeas corpus pre-trial,

[00:46:40] Speaker 05:
then we would at least expect Congress to say so instead of saying the offenses are not triable unless they occurred in the context of hostilities.

[00:46:51] Speaker 05:
I would point out that there are not only dozens of terrorism cases, there's an indictment in this case, and that does put this case in a very unusual situation, where if al-Nashiri is tried and prevails on this precise argument in 2024, he can still be taken to the Southern District of New York on the indictment that's been pending since 2003, and that does- Would there not at least be a double jeopardy argument to be made there, or?

[00:47:16] Speaker 05:
No, because this goes to whether or not the military commission is acting ultra-virus.

[00:47:21] Speaker 05:
If it's acting ultra-virus, there is no jurisdiction to begin with, and he's subject to retrial.

[00:47:26] Speaker 05:
So we are facing two bites at this apple.

[00:47:31] Speaker 05:
The government says this is an open question.

[00:47:33] Speaker 05:
This is a hard question.

[00:47:34] Speaker 05:
I understand that there are aspects of this question that may be difficult.

[00:47:37] Speaker 05:
But when the President of the United States says America is not at war, when Congress defines the very term veteran as... The world says America is not at war?

[00:47:46] Speaker 05:
Yes.

[00:47:47] Speaker 05:
President Clinton, in direct response to the bombing of the USS Cole, said that even when America is not at war, we must remember the world is a dangerous place.

[00:47:55] Speaker 06:
He didn't say America is not at war.

[00:47:57] Speaker 06:
He said even when America is not at war, we must

[00:47:59] Speaker 05:
Well, but referring, and then he said even when America, even in times of peace, peace is not free because we have our men and women who serve around this country bravely, even in times of peace, and face risks, and they do.

[00:48:13] Speaker 06:
The question here is hostilities.

[00:48:15] Speaker 06:
That's correct, Your Honor.

[00:48:17] Speaker 06:
Hostilities is not precisely the same as war.

[00:48:20] Speaker 06:
For the purposes of the Military Commissions Act, it is... You cite in your reply brief, Basavi Tinggi, from the John Adams administration era, where the issue there was what's an enemy.

[00:48:35] Speaker 06:
There was no declaration of war.

[00:48:36] Speaker 06:
There was nothing in the Congressional Act that said we are at war.

[00:48:40] Speaker 06:
And yet Justice Washington's opinion distinguishes between the general war that has to have the declaration of war and a state of war, a state of being an enemy, and finds that France was, in fact, an enemy based on the fact that we're shooting at each other.

[00:48:55] Speaker 05:
Well, look to the public acts of the political branches, and I would say that an even harder case was probably posed by the American Civil War, where you had numerous acts of what we would call hostility.

[00:49:07] Speaker 05:
That's insurrection.

[00:49:08] Speaker 05:
Or an insurrection, but leading up.

[00:49:10] Speaker 06:
That's insurrection.

[00:49:10] Speaker 06:
That would not necessarily be applicable to war.

[00:49:13] Speaker 05:
That's not correct, Your Honor.

[00:49:14] Speaker 05:
That was a non-international armed conflict.

[00:49:17] Speaker 06:
That's what I'm saying.

[00:49:19] Speaker 06:
That was a non-international armed conflict of insurrection.

[00:49:21] Speaker 06:
Absolutely.

[00:49:22] Speaker 06:
It could be an erection and not be war or by virtue and not be controlling anything.

[00:49:27] Speaker 05:
Well, when the Supreme Court analyzed this question, I would say the most concise Supreme Court opinion I've ever read, actually, is the protector.

[00:49:34] Speaker 05:
They said, when it comes to whether or not something is hostilities, we look to the public acts of local branches to draw that line.

[00:49:41] Speaker 05:
And I would just say,

[00:49:43] Speaker 05:
For good reason.

[00:49:45] Speaker 06:
Well, that's right, because Americans were shooting at each other plenty prior to that time.

[00:49:56] Speaker 05:
Well, yes, but remember, they also looked at the public acts of the president enacting blockades.

[00:50:01] Speaker 05:
These are warlike public acts.

[00:50:03] Speaker 05:
And that's what we say, that's all we're saying the court needs to look to here.

[00:50:07] Speaker 05:
And certainly since the War Powers Resolution,

[00:50:10] Speaker 05:
Hostilities has been a pretty bureaucratic process.

[00:50:13] Speaker 05:
The president submits a declaration or a notice to Congress saying, hostilities exist here, and... Has the constitutionality of that act ever been passed on?

[00:50:23] Speaker 06:
No, but the president has never... And how many presidents have admitted it was constitutional?

[00:50:26] Speaker 06:
The reporting requirements the president have never objected to, actually.

[00:50:29] Speaker 06:
Well, actually, they've always said, though, we're not conceding the constitutionality of this act when we make the report, and that even Jerry Ford did.

[00:50:36] Speaker 05:
That's correct.

[00:50:36] Speaker 05:
That's absolutely correct.

[00:50:38] Speaker 05:
That's absolutely correct.

[00:50:40] Speaker 05:
But this is a bright line.

[00:50:41] Speaker 05:
And if I could just say why it's important to have a bright line is because when you have particularly non-state actors like insurrectionaries or like those people in Oregon declaring war on the United States, we look to the political branches to determine whether or not what they're doing has any status under the law of war.

[00:50:59] Speaker 05:
Because remember, the law of war swings both ways.

[00:51:02] Speaker 05:
We can detain them, we can try them by military commissions, perhaps we can even target them with drones, but they can shoot back, and it's perfectly legal for them to shoot back so long as they comply with the bare minimum standards the law of war sets out.

[00:51:16] Speaker 05:
And that's such a radical thing.

[00:51:18] Speaker 05:
in our country and it's entrusted so carefully to the political branches at the highest possible level and they've come back and given you no authority to say that any hostilities existed certainly as they relate to the coal or prior to 9-11.

[00:51:33] Speaker 02:
Thank you.

[00:51:34] Speaker 02:
We will take a brief recess while the courtroom is secured.

[00:51:38] Speaker 02:
Thank you.

[00:51:39] Speaker 05:
Thank you.