The Supreme Court ruled against the petitioners in Quirin, but only after considering their arguments on the merits. In an effort to minimize the precedential effect of Quirin, the government points out that the decision predates the comity-based abstention doctrine recognized in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), and applied by this court in New v. Cohen, 129 F.3d 639 (D.C. Cir. 1997). Councilman and New hold only that civilian courts should not interfere with ongoing court-martial proceedings against citizen servicemen.
Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (quoting Goldman v. Weinberger , 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) ); see also Chappell v. Wallace , 462 U.S. 296, 300, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (“Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the military establishment.”); New v. Cohen , 129 F.3d 639, 643 (D.C.Cir.1997) ( “[T]he military justice system must remain free from undue interference, because the military is a specialized society separate from civilian society with laws and traditions of its own developed during its long history.” (internal quotation omitted) (quoting Schlesinger v. Councilman , 420 U.S. 738, 757, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) ).
While serving in the United States Armed Forces as a Medical Specialist in 1995, petitioner Michael G. New was informed that his unit would be dispatched to the Republic of Macedonia to become part of the United Nations Peacekeeping Force in that country. See New v. Cohen, 129 F.3d 639, 641 (D.C. Cir. 1997). Upon learning that he would be required to wear a U.N. shoulder patch on his uniform and distinctive U.N. headgear while in Macedonia, petitioner informed his squad leader and his platoon leader that he believed the uniform to be unlawful and that he would refuse to wear the U.N. uniform components unless convinced that the requirements were justified by United States constitutional authority.
Initially, Hennis asserts that the district court abused its discretion by treating Councilman abstention as mandatory rather than discretionary. Cf. Hamdan v. Rumsfeld, 548 U.S. 557, 584–90, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (declining to apply Councilman abstention where petitioner was not a service member); Councilman, 420 U.S. at 761, 95 S.Ct. 1300 (noting, in dicta, that “[w]e have no occasion to attempt to define those circumstances, if any, in which equitable intervention into pending court-martial proceedings might be justified”); New v. Cohen, 129 F.3d 639, 644–45 (D.C.Cir.1997) (discussing two exceptions to Councilman abstention: one for civilians and other persons indisputably not service members; and one for service members who have exhausted all available administrative remedies for claims otherwise non-judicable in the military justice system). Our review of the district court's order reveals no such error.
Councilman identified two principal comity-based considerations that normally preclude a federal court from intervening in a pending military court proceeding. See New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997). First, military discipline and the efficient operation of the military itself are best served if the military justice system acts without regular interference from civilian courts.
A jurisdictional argument is just what Hamdan present here. Controlling Circuit precedent is found in New v. Cohen, 129 F.3d 639, 644 (D.C. Cir. 1997). In that case, following the Supreme Court's decision in Parisi v. Davidson, 405 U.S. 34 (1972), the Court of Appeals noted that, although the abstention rule is often "`framed in terms of `exhaustion' it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems.'"
Finally, defendants submit that the proper forum for plaintiffs to raise their claims is in the military justice system after having refused orders to take the vaccine. They cite the case of New v. Cohen, 129 F.3d 639 (B.C. Cir. 1997), as the principal authority in support of their proposition. While this B.C. Circuit opinion does embrace comity principles and the exhaustion requirement, it explicitly states that, at the heart of the comity principle "is the general rule that a federal court must await the final outcome of court-martial proceedings in the military justice system before entertaining an action by a service member who is the subject of the court-martial."
Id. at 230-31. Because comity requires federal courts to give "due respect to the autonomous military judicial system created by Congress," New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997), the Court concluded that it must stay Khadr's petition pending the end of military commission proceedings and the subsequent appeals process, Khadr I, 587 F. Supp. 2d at 234. The Court also dismissed Khadr's argument "that even if there is some lawful basis for his detention, he cannot be detained . . . as an adult because he was a juvenile at the time of capture."
In Homcy v. Resor, 455 F.2d 1345 (D.C. Cir. 1971), the D.C. Circuit reaffirmed the availability of collateral review of court martial convictions where constitutional claims are alleged. Most recently, in New v. Cohen, 129 F.3d 639, 648 (D.C. Cir. 1997), the court relied on Kauffman in support of the proposition that a serviceman could "bring an action in district court seeking nullification of his bad conduct discharge." See also Williamson v. Secretary of the Navy, 395 F. Supp. 146, 147 (D.D.C. 1975) ("This Court has subject matter jurisdiction under 28 U.S.C. § 1331 to review a military court martial in order to inquire into constitutional errors of the military tribunal and to determine whether military rulings conform to Supreme Court standards") (citing Kauffman).
Councilman identifies two considerations of comity that together favor abstention pending completion of ongoing court-martial proceedings against service personnel. See New v. Cohen, 129 F. 3d 639, 643 (CADC 1997); see also 415 F. 3d, at 36-37 (discussing Councilman and New). First, military discipline and, therefore, the efficient operation of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts.