Al-Nashiri v. MacDonald

Section 7 of the Military Commissions Act of 2006 deprives the district court of jurisdiction of non-habeas claims.

Abd Al Rahim Hussein Al-Nashiri was arrested in Dubai in 2002 for his role in three terrorist plots. He was transferred and detained at Guantanamo Bay in 2006. The next year, a Combatant Status Review Tribunal determined that Al-Nashiri was an “enemy combatant.” He was charged with nine violations of the Military Commissions Act (“MCA”). Al-Nashiri requested that Bruce MacDonald, the Convening Authority for the Office of Military Commissions, not convene a military commission. Al-Hashiri argued that since these instances occurred in Yemen during a time in which the U.S. and Congress had not declared an armed conflict in Yemen, the bombings and attempted bombings were therefore not a result of hostilities. When the military commission was convened, Al-Nashiri argued that MacDonald had overstepped his bounds and went outside of his authority. The district court dismissed Al-Nashiri’s suit for lack of subject matter jurisdiction on the grounds that MCA § 7 and sovereign immunity barred the claims. The Ninth Circuit affirmed the district court’s dismissal of Al-Nashiri’s claims. First, Al-Nashiri argued equitable relief based upon a non-habeas action against an agent of the United States. Second, Al-Nashiri argued that MCA § 7 was struck down by Boumediene v. Bush. The panel noted that Boumediene only applied to the stripping of habeas jurisdiction relating to the first part of the statute and that the second portion of the statute still had force. Al-Nashiri then argued that even if MCA § 7 survives Boumediene, it still is not applicable to his case because he was suing MacDonald in his individual capacity. The panel was not persuaded by this argument, noting that MacDonald was not acting in his individual capacity, but instead as an agent of the United States in his official capacity. AFFIRMED.