FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABD AL RAHIM HUSSEIN ALNASHIRI,

Plaintiff-Appellant,

v.

BRUCE MACDONALD; PAUL

OOSTBURG SANZ,

Defendant-Appellee.

No. 12-35475

D.C. No.

3:11-cv-05907-

RJB

OPINION

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, Senior District Judge, Presiding

Argued and Submitted

June 3, 2013—Seattle, Washington

Filed December 20, 2013

Before: Arthur L. Alarcón, M. Margaret McKeown,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeown
2 AL-NASHIRI V. MACDONALD

SUMMARY*

Military Commissions Act

The panel affirmed the district court’s dismissal of an

action brought by a plaintiff non-citizen “enemy combatant”

challenging ongoing proceedings against him before a

military commission at the United States Naval Base in

Guantanamo Bay, Cuba.

The panel held that, pursuant to Hamad v. Gates,

732 F.3d 990 (9th Cir. 2013), Section 7 of the Military

Commissions Act of 2006 deprived the district court of

subject matter jurisdiction over plaintiff’s claims, which were

non-habeas claims. The panel rejected plaintiff’s claims

challenging the constitutionalityof the MilitaryCommissions

Act.

COUNSEL

Michel Paradis (argued), Office of the Chief Defense

Counsel, Washington, D.C.; Richard Kammen, Gilroy,

Kammen, Maryan & Moudy, Indianapolis, Indiana; Robert

Gombiner, Law Offices of Robert Gombiner, Seattle,

Washington, for Plaintiff-Appellant.

Sydney Foster (argued) and Robert M. Loeb, Attorneys,

Appellate Staff, and Stuart F. Delery, Principal Deputy

Assistant Attorney General, United States Department of

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
AL-NASHIRI V. MACDONALD 3

Justice, Civil Division, Washington, D.C.; Jenny A. Durkan,

United States Attorney, Seattle, Washington, for DefendantAppellee.

James J. Brosnahan, Somnath Raj Chatterjee, and Megan C.

Kiefer, Morrison & Foerster LLP, San Francisco, California,

for Amici Curiae Retired Military Admirals, Generals, and

Colonels.

David H. Remes, Appeal for Justice, Silver Spring, Maryland;

John T. Parry, Portland, Oregon; William J. Aceves, San

Diego, California, for Amicus Curiae Physicians for Human

Rights.

OPINION

McKEOWN, Circuit Judge:

Abd Al Rahim Hussein Al-Nashiri is a noncitizen “enemy

combatant” undergoing proceedings before a military

commission at the United States Naval Base in Guantanamo

Bay, Cuba. The charges against Al-Nashiri arose from his

alleged role in three terrorist plots: the 2000 attempted

bombing of the U.S.S. The Sullivans; the 2000 bombing of

the U.S.S. Cole, which killed seventeen U.S. military

personnel; and the 2002 bombing of the M/V Limburg, which

killed one civilian. Al-Nashiri seeks a declaratory judgment

that the military commission lacks jurisdiction to hear the

charges against him because the alleged acts occurred in

Yemen, where he argues no war or hostilities existed in 2000

or 2002. More specifically, he claims that Vice Admiral

Bruce MacDonald (Ret.), then the Convening Authority for

the Office of Military Commissions, over-stepped his
4 AL-NASHIRI V. MACDONALD

authority because “[t]he President and Congress uniformly

declined to confer [war-time] status on events in Yemen”

during that period. Consistent with our recent decision in

Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013), we hold that

Section 7 of the Military Commissions Act (“MCA § 7”) of

2006 deprived the district court of subject matter jurisdiction

over Al-Nashiri’s claims. 28 U.S.C. § 2241(e).

BACKGROUND

I. MILITARY COMMISSION AUTHORITY

Congress, by authorizing the use of military force

following the September 11, 2001 terrorist attacks, gave the

President the power to detain certain individuals as a

“fundamental and accepted . . . incident to war.” Boumediene

v. Bush, 553 U.S. 723, 733 (2008) (quoting Hamdi v.

Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion)). 

Shortly thereafter, President Bush issued an order providing

for military commission trials of noncitizens he had reason to

believe had been or currently were members of al-Qaida or

had otherwise participated in terrorist activities directed at the

United States. Detention, Treatment, and Trial of Certain

Non-Citizens in the War Against Terrorism, 66 Fed. Reg.

57,833 (Nov. 13, 2001). A 2004 Department of Defense

order created the Combatant Status Review Tribunal to

determine whether the Executive Branch had properly

designated noncitizen detainees as “enemy combatants.” 

Memorandum from Deputy Secretary of Defense Paul

Wolfowitz re Order Establishing Combatant Status Review

Tribunal § a (July 7, 2004), available at

http://www.defense.gov/news/Jul2004/d20040707review.pdf. 

Absent such a designation, military commissions lack

authority over detainees. 10 U.S.C. § 948b (providing that
AL-NASHIRI V. MACDONALD 5

the MCA’s purpose is to “establish[] procedures governing

the use of military commissions to try alien unlawful enemy

combatants engaged in hostilities against the United States”);

cf. Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (stating that

“a citizen held in the United States as an enemy combatant

[must] be given a meaningful opportunity to contest the

factual basis for that detention,” i.e. his designation as an

enemy combatant).

After legal challenges on multiple fronts, in Hamdan v.

Rumsfeld, the Supreme Court invalidated, as violations of the

Uniform Code of Military Justice and the Geneva

Conventions, a number of the commission procedures

authorized by statute and executive order. 548 U.S. 557, 625

(2006). In response to Hamdan, Congress enacted the

Military Commissions Act of 2006. Pub. L. No. 109–366,

120 Stat. 2600 (2006) (“2006 MCA”), 28 U.S.C. § 2241(e)

(2006); see Boumediene, 553 U.S. at 735. The 2006 MCA

authorized trial by military commission for “alien unlawful

enemy combatant[s].” 2006 MCA § 3.

In 2009, Congress largely superseded the 2006 MCA and

provided detainees certain additional procedural safeguards. 

Military Commissions Act of 2009, Pub. L. No. 111–84, 123

Stat. 2574 (2009) (“2009 MCA”), 10 U.S.C. §§ 948a et seq. 

Relevant to these proceedings, the 2009 MCA authorized the

President to establish military commissions to try “alien

unprivileged enemy belligerents,” as opposed to the earlier

designation, “enemy combatants,” for violations of the law of

war and other offenses triable by military commissions. 

10 U.S.C. §§ 948b(a)–(b), 948c. The offenses specified in

the 2009 MCA are “triable by military commission . . . only

if the offense is committed in the context of and associated

with hostilities.” Id. § 950p(c). Under the 2009 MCA,
6 AL-NASHIRI V. MACDONALD

hostilities are “any conflict subject to the laws of war.” Id.

§ 948a(9).

II. AL-NASHIRI’S PROCEEDINGS

1

Al-Nashiri, a Saudi national, was arrested in Dubai in

2002 and held in U.S. custody. In September 2006, AlNashiri was transferred to Guantanamo Bay, where he

remains in detention. The following year, a Combatant Status

Review Tribunal determined that Al-Nashiri was an “enemy

combatant.”2 Charges against Al-Nashiri alleging nine

violations of the MCA were referred to the Military

Commission Convening Authority in 2011. The charges

included the three referenced al-Qaida terrorist plots,

conspiring with Osama bin Laden and others between 1996

and 2002 to “commit Terrorism and Murder in Violation of

the Law of War,” and other related charges.

Following referral of these charges, Al-Nashiri formally

requested that MacDonald not convene a military

commission. Al-Nashiri principally argued that the

commission could not try him for the alleged offenses

because they “did not occur in the context of and were not

associated with hostilities.” This argument was based on a

statement by President Clinton in response to the U.S.S. Cole

bombing suggesting that it was a peacetime attack;

Congress’s failure to declare war or pass any other

1

 In reviewing de novo the government’s motion to dismiss, we accept

as true the factual allegations in Al-Nashiri’s Complaint. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

2 Under the 2009 MCA, Al-Nashiri is now classified as an “alien

unprivileged enemy belligerent.” 10 U.S.C. § 948c.
AL-NASHIRI V. MACDONALD 7

authorization for the use of military force in response to the

U.S.S. Cole bombing; President Bush’s failure to certify the

existence of hostilities in Yemen until his War Powers

Resolution report to Congress in September 2003; and the

fact that Congress first recognized an armed conflict in

Yemen in a 2009 Senate resolution.3

MacDonald issued orders convening a commission to try

Al-Nashiri for the charges associated with the three terrorist

plots. In response, Al-Nashiri filed suit in the Western

District of Washington naming MacDonald, the sole

defendant, in his individual capacity. The Complaint alleges

that MacDonald’s military commission referral violated

10 U.S.C. § 950p(c); Article III § 2 of the Constitution; and

the Fifth, Sixth, and Eighth Amendments because the alleged

offenses did not “occur,” as a matter of law, “in the context

of and [were] not associated with hostilities.” He requested

a declaratory judgment stating that “neither the President nor

Congress certified the existence of an armed conflict subject

to the laws of war in Yemen prior to September 2003” and

3

See, e.g., The President’s Radio Address, 36 WeeklyComp. Pres. Doc.

2176, 2177 (Oct. 14, 2000) (containing President Clinton’s remarks in

response to the U.S.S. Cole bombing in which he stated that “even when

America is not at war, the men and women of our military risk their lives

every day” and that “[n]o one should think for a moment that the strength

of our military is less important in times of peace”); Letter to

Congressional Leaders Reporting on Efforts in the Global War on

Terrorism, 39 Weekly Comp. Pres. Doc. 1247, 1247 (Sept. 19, 2003)

(providing President Bush’s 2003 War Powers Resolution report to

Congress in which he stated that the United States had undertaken

“military operations against al-Qaida and other international terrorists in

the Horn of Africa region, including Yemen”); S. Res. 341, 111th Cong.

(2009) (enacted) (expressing concern about conflict between rebel forces

and the Government of Yemen resulting in civilian displacement “since

2004”).
8 AL-NASHIRI V. MACDONALD

that MacDonald “acted beyond his authority and in violation

of the constitution by issuing orders to convene a military

commission with the power to recommend the sentence of

death for allegations relating to” the three bombing incidents.

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. In the alternative, the

court reasoned that even if it had subject matter jurisdiction,

principles of restraint articulated in Schlesinger v.

Councilman, 420 U.S. 738 (1975), counseled in favor of the

court’s abstention from exercising equitable jurisdiction.

DISCUSSION

I. MILITARY COMMISSIONS ACT § 7

We first consider the threshold question of whether MCA

§ 7 stripped the district court of subject matter jurisdiction

over Al-Nashiri’s action. The answer, according to Hamad,

is yes.

Section 7 of the Military Commissions Act provides:

(1) No court, justice, or judge shall have

jurisdiction to hear or consider an application

for a writ of habeas corpus filed by or on

behalf of an alien detained by the United

States who has been determined by the United

States to have been properly detained as an

enemy combatant or is awaiting such

determination.
AL-NASHIRI V. MACDONALD 9

(2) Except as provided in paragraphs (2) and

(3) of section 1005(e) of the Detainee

Treatment Act of 2005 (10 U.S.C. 801 note),

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).

Subsection (1) is not applicable because Al-Nashiri is not

seeking a writ of habeas corpus. Subsection (2), however,

plainly applies to Al-Nashiri’s action. See Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 175 (2009) (“Statutory

construction must begin with the language employed by

Congress and the assumption that the ordinary meaning of

that language accurately expresses the legislative purpose.”)

(internal quotation marks omitted)). To begin, Al-Nashiri

seeks equitable relief based upon a non-habeas action against

an agent of the United States, MacDonald as the Convening

Authority. Al-Nashiri, a Saudi national, does not contest his

designation as an “enemy combatant.” Instead, he challenges

the government’s authority to proceed with his military

commission trial, arguing that the alleged offenses did not

occur in the context of hostilities. Finally, Al-Nashiri does

not fall under any of the exceptions in subsection (2)

permitting courts to hear certain cases under the Detainee

Treatment Act. See Detainee Treatment Act of 2005, Pub. L.
10 AL-NASHIRI V. MACDONALD

No. 109–148, div. A, title X, § 1005(e), 119 Stat. 2680

(providing the D.C. Circuit with jurisdiction over limited

challenges, such as contesting combatant status review

standards and procedures and final decisions of a military

commission). Based on the allegations in the Complaint and

under the plain terms of § 2241(e)(2), MCA § 7 bars the

district court from exercising jurisdiction over Al-Nashiri’s

claims.

Recognizing the difficulty of overcoming the plain

language of MCA § 7, Al-Nashiri nonetheless argues that

MCA § 7 did not strip the district court of subject matter

jurisdiction because the Supreme Court in Boumediene struck

down MCA § 7 in its entirety, MCA § 7 does not apply to the

claims in this suit, and MCA § 7 is unconstitutional.4

A. MILITARY COMMISSIONS ACT § 7 AFTER

BOUMEDIENE

In Boumediene, the Supreme Court held that MCA § 7

“operate[d] as an unconstitutional suspension of the writ” of

habeas corpus for military detainees held in Guantanamo

Bay. 553 U.S. at 733. According to the Court, the

Suspension Clause had “full effect at Guantanamo Bay” and

MCA § 7 did not “purport to be a formal suspension of the

writ.” Id. at 771. In so holding, the Court did not specify that

a particular subsection of MCA § 7 was unconstitutional. Id.

4

In light of our decision, we need not reach Al-Nashiri’s other

arguments regarding abstention under Schlesinger v. Councilman or

whether MacDonald can assert sovereign immunity. See Sinochem Int’l

Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A]

federal court has leeway to choose among threshold grounds for denying

audience to a case on the merits.” (internal quotation marks and citation

omitted)).
AL-NASHIRI V. MACDONALD 11

at 795. The Court of Appeals for the D.C. Circuit later held

that Boumediene “applied only to the stripping of habeas

jurisdiction,” the first section of the statute, leaving in force

§ 2241(e)(2). Al-Zahrani v. Rodriguez, 669 F.3d 315, 319

(D.C. Cir. 2012).

In Hamad, we agreed with the D.C. Circuit, holding that

“the logic and context of [Boumediene] make clear that the

Supreme Court was addressing only § 2241(e)(1).” 732 F.3d

at 1000. Reasoning that “§ 2241(e)(2) is capable of

‘functioning independently,’ and is consistent with

Congress’s basic objectives in enacting the MCA,” we

concluded that § 2241(e)(2) is severable from § 2241(e)(1)

and “remains in effect, provided that it is constitutional.” Id.

at 1003. Hamad forecloses Al-Nashiri’s argument that

Boumediene struck down MCA § 7 as a whole.

B. APPLICABILITY OF MCA § 7 TO THIS SUIT

Even if MCA § 7 survives Boumediene, Al-Nashiri argues

that MCA § 7 does not apply to this suit for three reasons: he

is suing MacDonald “in his individual capacity,” not as an

“agent” of the United States; he is not objecting to “any

aspect of . . . trial,” but rather to the creation of the military

commission itself; and the legislative history of the 2009

MCA counsels against reading MCA § 7 to apply to his suit. 

We disagree.

We are unpersuaded by Al-Nashiri’s claim that his suit is

against MacDonald as an individual and not as an agent of the

United States in his official capacity. The language of the

Complaint belies this assertion. The declaratory relief that

Al-Nashiri seeks is only meaningful if it binds the U.S.

government and its agents. He seeks a declaration that
12 AL-NASHIRI V. MACDONALD

“neither the President nor Congress certified the existence of

an armed conflict subject to the laws of war in Yemen prior

to September 2003” and that MacDonald “acted beyond his

authority and in violation of the constitution by issuing orders

to convene a military commission with the power to

recommend the sentence of death for allegations relating to”

the three bombing incidents. This requested relief is aimed

either at invalidating the referral order or convincing the

Convening Authority that it does not have jurisdiction over

Al-Nashiri, and would be futile if not directed “against the

United States or its agents” within the meaning of MCA § 7. 

Cf. Wolfe v. Strankman, 392 F.3d 358, 367 n.2 (9th Cir. 2004)

(holding in a 42 U.S.C. § 1983 action that the plaintiff sought

declaratory and injunctive relief only available against

defendants in their official capacities).

Because this is an official capacity suit, we grant the

government’s motion to substitute MacDonald with Paul

Oostburg Sanz, who replaced MacDonald as the Convening

Authority in March 2013. See Fed. R. App. P. 43(c)(2)

(“When a public officer who is a party to an appeal . . . in an

official capacity . . . ceases to hold office . . . [t]he public

officer’s successor is automatically substituted as a party.”).

Al-Nashiri’s citation to Larson v. Domestic & Foreign

Commerce Corporation, 337 U.S. 682 (1949), is unavailing. 

In Larson, the Supreme Court held that sovereign immunity

does not bar suit for specific relief against a government

official when, for example, the official purports to act as an

individual and acts ultra vires, or if the official commits an

unconstitutional act because the “statute or order conferring

power upon the officer to take action . . . is claimed to be

unconstitutional.” Id. at 689–90. Not only is MCA § 7

constitutional, the only action MacDonald took—issuing
AL-NASHIRI V. MACDONALD 13

orders to convene a military commission—was in his official

capacity. Congress also impliedly sought to limit judicial

review here by enacting an alternative remedial scheme. As

the Supreme Court explained, “[individual] relief can be

granted, without impleading the sovereign, only because of

the officer’s lack of delegated power. A claim of error in the

exercise of that power is therefore not sufficient.” Id. at 690. 

Al-Nashiri cannot simply convert his suit to an “individual”

action by invoking that magic word in his Complaint. We

need not address whether his suit is barred by sovereign

immunity because it falls squarely within the jurisdictionstripping provisions of MCA § 7.

Al-Nashiri’s effort to sidestep the jurisdictional bar on the

ground that he is not objecting to the creation of the military

commission itself fares no better. He urges that his challenge

to the military commission’s authority over the charges

against him does not constitute “any aspect of . . . trial.” The

broad phrase—“relating to any aspect of . . . trial”—naturally

includes the threshold question whether the tribunal has

jurisdiction over the parties and claims. MCA § 7(2). 

Indeed, Congress expressly provided the military

commissions with this authority, stating that a “military

commission is a competent tribunal to make a finding

sufficient for jurisdiction.” 10 U.S.C. § 948d. We note that

after briefing in this appeal, the Military Commissions Trial

Judiciary, Guantanamo Bay, Cuba, denied without prejudice

Al-Nashiri’s motion to dismiss based on his claim that the

Convening Authority exceeded his authority. Order, No.

AE104 F (Jan. 13, 2013). The military judge held that

‘[w]hether hostilities existed between Al Qaeda and the

United States on the dates of the accused’s alleged acts is a

question of fact and an element of proof, which must be

carried by the government.” Order at 5. The tribunal further
14 AL-NASHIRI V. MACDONALD

held that, as a matter of law, it owed “judicial deference” to

the political branches’ collective determination as to the

existence of hostilities. Order at 6.

Al-Nashiri also points to the legislative history of the

2009 MCA, claiming that it undermines the application of

MCA § 7 to his claims. The 2009 MCA omits 10 U.S.C.

§ 950j(b), a statutory provision from the 2006 MCA that

barred courts from hearing “any claim or cause of action

whatsoever . . . relating to the prosecution, trial, or judgment

of a military commission.” Al-Nashiri thus argues that, in

effectively repealing this provision, Congress could not have

intended to maintain such broad jurisdiction-stripping

language in MCA § 7 for non-habeas claims.

We return to the “plain language of the statute, which

controls unless its application leads to unreasonable or

impracticable results.” Valladolid v. Pac. Operations

Offshore, LLP, 604 F.3d 1126, 1133 (9th Cir. 2010) (internal

quotation marks omitted). As discussed above, the plain

language of MCA § 7 controls—all judicial jurisdiction is

barred for a non-habeas action. This result is both reasonable

and practicable. The history of § 950j(b) points to no

exception for non-habeas claims. Nor was the section singled

out for omission. Rather, Congress replaced the entire

chapter of which it was a part. See Pub. L. No. 111–84, div.

A, tit. XVIII, § 1802, 123 Stat. at 2574–612. It revised the

language governing military commissions and granted the

D.C. Circuit exclusive authority to “determine the validity of

a final judgment rendered by a military commission” when

other review procedures had been exhausted. 10 U.S.C.

§ 950g(a). Nothing in the text suggests that Congress

intended to exempt non-habeas claims from the requirements

of MCA § 7.
AL-NASHIRI V. MACDONALD 15

C. CONSTITUTIONALITY OF MCA § 7

Al-Nashiri also claims that MCA § 7 violates his right to

equal protection under the Fifth Amendment5and constitutes

a bill of attainder. Both arguments were rejected in Hamad,

where we held that “Congress’s decision in § 2241(e)(2) to

preclude only alien detainees captured as part of the war on

terror from bringing damages actions easily passes rational

basis review.” 732 F.3d at 1006. We concluded that the

classification served a “legitimate foreign policy concern[] by

ensuring that members of the armed forces are not unduly

chilled in conducting the war on terror by concerns about

foreign nationals targeting them with damages claims.” Id.

(internal citation and quotation marks omitted).

Hamad also addressed an identical bill of attainder

challenge. Our rejection was swift: § 7 does not violate the

Bill of Attainder Clause, U.S. Const. art. I, § 9, cl. 3,

“because it does not inflict legislative punishment” as

historically understood. Hamad, 732 F.3d at 1004. 

“Congress enacted § 2241(e) to limit and channel federal

court review of detention and military commission decisions,

 

5 Although Al-Nashiri did not raise this Fifth Amendment argument in

the district court, we consider it here because it is a question of law that

easily is disposed of by Hamad. United States v. Flores-Montano,

424 F.3d 1044, 1047 (9th Cir. 2005) (“While issues not raised to the

district court normally are deemed waived, we have recognized three

narrow exceptions to this general rule,” including where “the issue

presented is purely one of law and the opposing party will suffer no

prejudice as a result of the failure to raise the issue in the trial court”)

(internal quotation marks omitted)).
16 AL-NASHIRI V. MACDONALD

not to impose any particular punishment on military

detainees.” Id.

AFFIRMED.