Argued and Submitted June 3, 2013.
Michel Paradis (argued), Office of the Chief Defense Counsel, Washington, D.C.; Richard Kammen, Gilroy, Kammen, Maryan & Moudy, Indianapolis, IN; Robert Gombiner, Law Offices of Robert Gombiner, Seattle, WA, 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 Justice, Civil Division, Washington, D.C.; Jenny A. Durkan, United States Attorney, Seattle, WA, for Defendant-Appellee.
James J. Brosnahan, Somnath Raj Chatterjee, and Megan C. Kiefer, Morrison & Foerster LLP, San Francisco, CA, for Amici Curiae Retired Military Admirals, Generals, and Colonels.
David H. Remes, Appeal for Justice, Silver Spring, MD; John T. Parry, Portland, OR; William J. Aceves, San Diego, CA, for Amicus Curiae Physicians for Human Rights.
Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, Senior District Judge, Presiding. D.C. No. 3:11-cv-05907-RJB.
Before: ARTHUR L. ALARCÓ N, M. MARGARET McKEOWN, and SANDRA S. IKUTA, Circuit Judges.
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 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).
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, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (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/ Jul 2004/ d 20040707
review. pdf. Absent such a designation, military commissions lack authority over detainees. 10 U.S.C. § 948b (providing that 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, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (stating that " a citizen held in the United States as an enemy combatant [must] be given ...