In re Al-Nashiri

          Argued January 22, 2019

          On Petition for Writ of Mandamus to the United States Court of Military Commission Review

          Michel D. Paradis, Counsel, Office of the Chief Defense Counsel, argued the cause for petitioner. With him on the petition for a writ of mandamus and reply was Brian L. Mizer.

          Eugene R. Fidell was on the brief for amicus curiae Ethics Bureau at Yale in support of petitioner's petition for a writ of mandamus and prohibition.

          Joseph F. Palmer, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Danielle S. Tarin, Attorney.

          Matthew S. Hellman argued the cause for petitioners. With him on the petition for writ of mandamus and reply were Keisha Stanford and Todd C. Toral.

          Philip Sundel, Head, Appellate Section, Military Commissions Defense Organization, was on the brief for amicus curiae Chief Defense Counsel for Military Commissions in support of petitioners.

          Danielle S. Tarin, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Joseph F. Palmer, Attorney.

          Before: Rogers, Tatel, and Griffith, Circuit Judges.

          OPINION

          TATEL, CIRCUIT JUDGE:

         Abd Al-Rahim Hussein Muhammed Al-Nashiri is currently detained at Guantanamo Bay, where he faces capital charges before a military commission. These petitions concern the conduct of Colonel Vance Spath, the military judge who presided over Al-Nashiri's case for four years. Shortly into his tenure-and without disclosing it to Al-Nashiri and his lawyers-Spath applied for employment as an immigration judge in the U.S. Department of Justice. Then, after receiving a job offer but before retiring from the military, Spath found himself locked in a dispute with Al-Nashiri's defense lawyers, three of whom sought to leave the case. Al-Nashiri now seeks a writ of mandamus vacating commission orders issued by Spath, while two of his former lawyers, Mary Spears and Rosa Eliades, seek a writ of mandamus vacating commission orders refusing to recognize their withdrawal. Because we conclude that Spath's job application to the Justice Department created a disqualifying appearance of partiality, we grant Al-Nashiri's petition for a writ of mandamus, vacate all orders issued by Spath after he applied for the job, and dismiss Spears and Eliades's petition as moot.

         I.

         Al-Nashiri stands accused of orchestrating al Qaeda's "boats operation" in the Gulf of Aden, a series of plots culminating in a failed attempt to bomb the U.S.S. The Sullivans and the completed bombings of the U.S.S. Cole in late 2000 and the M/V Limburg in 2002. See In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110, 113 (D.C. Cir. 2016). Eighteen people lost their lives and almost fifty were injured in these attacks. See id. at 114.

         Al-Nashiri was captured in 2002, and after spending several years at various CIA "black sites," he was transferred to the U.S. Naval Base at Guantanamo Bay in 2006. See id. at 140-41 (Tatel, J., dissenting). The government charged Al-Nashiri with multiple capital offenses, including murder in violation of the law of war and terrorism, for which it seeks the death penalty. See id. at 114. After the first military commission convened to try Al-Nashiri disbanded in 2009, the Defense Department convened the second and current commission in 2011.

         These ongoing proceedings owe their existence to the Military Commissions Act of 2009 ("MCA"), which establishes a special set of procedures for using "military commissions to try alien unprivileged enemy belligerents." 10 U.S.C. § 948b(a). Borrowing heavily from the procedures governing trial by court-martial, the MCA creates an adversarial system of justice to try unprivileged enemy belligerents, complete with "trial counsel" to "prosecute in the name of the United States," id. § 949c(a); "[d]efense counsel" to represent the accused, id. § 949c(b); and a "military judge" to "preside over [the] military commission," id. § 948j(a). The MCA also establishes several layers of review of commission decisions, including by the United States Court of Military Commission Review ("CMCR"), which hears both interlocutory appeals and appeals from final judgments, see id. §§ 950d, 950f; and by our court, which has "exclusive jurisdiction" to review commission "final judgment[s]" that have been reviewed by the convening authority and the CMCR, id. § 950g(a), and-as evidenced by Al-Nashiri's three previous appearances before this court-jurisdiction to hear mandamus petitions. See Al-Nashiri II, 835 F.3d at 117 (denying petition for writ of mandamus); In re Al-Nashiri (Al-Nashiri I), 791 F.3d 71, 78 (D.C. Cir. 2015) (denying petition for writ of mandamus); In re Al-Nashiri, No. 09-1274, 2010 WL 4922649, at *1 (D.C. Cir. Nov. 24, 2010) (granting motion for voluntary dismissal of mandamus petition).

         Air Force Colonel Vance Spath began presiding over Al-Nashiri's commission in July 2014. But just over a year into his assignment to the case, he applied for a job with the Department of Justice's Executive Office for Immigration Review. Spath, however, never disclosed the fact of his application, much less its details, to Al-Nashiri or to his defense team. Instead, records obtained through a Freedom of Information Act (FOIA) request-documents whose authenticity the government does not dispute-reveal the information we now possess about Spath's job search. See Attachments to Petitioner's Reply Brief in Support of His Petition for a Writ of Mandamus and Prohibition ("Reply Attachments"), In re Al-Nashiri, No. 18-1279 (D.C. Cir. Nov. 28, 2018) (attaching relevant FOIA documents); Order 1, In re Al-Nashiri, No. 18-1279 (D.C. Cir. Jan. 8, 2019) (granting Al- Nashiri's motion to supplement the record). With the benefit of that newly discovered information, along with the record as it appeared to the parties at the time, we now reconstruct a timeline of the relevant events that unfolded in Al-Nashiri's commission proceedings from November 2015 to the present.

         A.

         Spath submitted his application to an open immigration judge position in the Executive Office for Immigration Review on November 19, 2015. In his application, Spath highlighted his "five years of experience as a trial judge," including that he had been "handpicked" to preside over "the military commissions proceedings for the alleged 'Cole bombing' mastermind"-that is, Al-Nashiri-"at Guantanamo Bay." Reply Attachments B-1 to B-2. He also included as a writing sample an order he issued in Al-Nashiri's case. See id. at B-11.

         After a "lengthy interview and application process," id. at A-10, then-Attorney General Jeff Sessions "signed an order temporarily appointing Mr. Spath as an immigration judge," id. at D-1, and Spath received an initial offer of employment in March 2017, see id. at A-10. Spath's start date, however, soon became a sticking point. In mid-June, a human resources specialist contacted Spath to notify him that September 18, 2017, had been "established" as his "entrance on duty date," id. at A-5, but Spath responded that he was "waiting on confirmation from the Air Force," whose approval he would need before finalizing his retirement from the military, id. at A-3. About a month later, in mid-July, Spath sent an email requesting that he be allowed to start on "May 15, 2018 or later." Id. at A-11. Reiterating his "extreme[] interest[] in the position," Spath explained that his "status as an active duty member of the Armed Forces"-including that he "remain[ed] detailed to a case at Guantanamo Bay Cuba which requires significant time to hand to another trial judge"- "complicat[ed] . . . the job offer." Id. at A-10. Human resources staff nonetheless concluded that they could not "extend an offer" to Spath while "delay[ing] the [start date] indefinitely." Id. at A-9. As a result, in August 2017 they told Spath that "[m]anagement [was] aware of his request to [start] in 2018" but could "not agree to his terms." Id. at A-12, A-14. Instead, they would "hold his paperwork and contact him again in January [or] February, 2018." Id. at A-14.

         While Spath's start-date negotiations were occurring behind the scenes, a separate drama involving Al-Nashiri's defense team was unfolding in Guantanamo. In summer 2017, Al-Nashiri had four lawyers. Leading the team was Richard Kammen, a lawyer who, given his experience "in applicable law relating to capital cases," fulfilled the MCA's requirement that the government must "to the greatest extent practicable" make such "learned" counsel available in capital cases. 10 U.S.C. § 949a(b)(2)(C)(ii). Next were Mary Spears and Rosa Eliades, civilian employees of the Defense Department who had served as Al-Nashiri's assistant defense counsel since 2015. And finally there was Lieutenant Alaric Piette, a Navy judge advocate who had been detailed to the case a few months earlier, in April 2017. See U.S.S. Cole: Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri (2) Military Commission Appellate Exhibit ("AE") 339G (July 11, 2017) (defense notice of Piette's detailing). Together, the quartet reported to the Chief Defense Counsel of the Military Commissions Defense Organization, Brigadier General John Baker, the officer in charge of detailing defense counsel and "supervis[ing] all defense activities" in the military commissions. U.S. Department of Defense, Regulation for Trial by Military Commission § 9-1(a)(2) (2016).

         The trouble began on June 14, 2017, when Baker informed the lawyers under his supervision that he had lost confidence in the confidentiality of Guantanamo's meeting spaces and recommended that defense counsel refrain from "conduct[ing] any attorney-client meetings at Guantanamo Bay . . . until they know with certainty that improper monitoring of such meetings is not occurring." Corrected Attachments to Petitioner's Petition for a Writ of Mandamus and Prohibition ("Corrected Al-Nashiri Attachments"), Attachment C, at 1, In re Al-Nashiri, No. 18-1279 (D.C. Cir. Nov. 4, 2018). Worried about this news, Al-Nashiri's defense team filed motions in the commission requesting permission to notify their client of Baker's warning and seeking to compel discovery into the potential intrusions. See AE369HH (June 23, 2017) (motion to advise Al-Nashiri of potential government intrusions into attorney-client communications); AE369PP (July 13, 2017) (motion to compel discovery). And apparently aggravating their concerns, during the pendency of their discovery motion, the lawyers discovered a hidden microphone-which the government represents was a nonfunctional "legacy microphone"-in their meeting room at Guantanamo. Brief of the United States in Opposition ("Opp. to Al-Nashiri") 12, In re Al-Nashiri, No. 18-1279 (D.C. Cir. Nov. 16, 2018) (internal quotation marks omitted). Spath, however, denied both the motion for permission to disclose and the motion for discovery, explaining that he lacked "any basis to find there had been an intrusion into attorney-client communications between [Al-Nashiri] and [his] defense team." U.S.S. Cole: Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri (2) Military Commission Transcript ("Commission Tr.") 10022 (Oct. 31, 2017); see also AE369OO, at 1 (July 7, 2017) (denying motion for permission to notify Al-Nashiri of potential intrusions).

         Remaining concerned about their ability to guarantee confidentiality and their inability to communicate those fears to their client, defense counsel sought expert advice. Kammen solicited guidance from Ellen Yaroshefsky, a professor of legal ethics at Hofstra University School of Law, who opined that because Kammen could not "continue to represent Mr. Al-Nashiri" in a way "consistent with [his] ethical obligation[s]" "to act diligently and competently, to maintain confidentiality, and [to] adhere to the duties of loyalty and communication," he was "required to withdraw." See AE389, at 28 (Oct. 16, 2017). Al-Nashiri's three civilian lawyers then sought permission to do just that, requesting that Baker excuse them under Rule for Military Commissions 505(d)(2)(B), which states that "[a]fter formation of [an] attorney-client relationship," "an authority competent to detail" defense counsel "may excuse . . . such counsel only" "[u]pon request of the accused," "application for withdrawal by such counsel," or "[f]or other good cause shown on the record." Rule for Military Commissions 505(d)(2)(B). Baker, citing "all the information [he knew] about this matter- both classified and unclassified," found "good cause" to terminate the representations on October 11, 2017. AE389, at 18 (Oct. 16, 2017) (granting Kammen's request); Pet. Appendix 79, In re Spears, No. 18-1315 (D.C. Cir. Nov. 26, 2018) (granting Spears's request); id. at 113 (granting Eliades's request).

         That left only Lieutenant Piette-a lawyer with five years of legal practice and no meaningful capital-litigation experience-to defend Al-Nashiri against a fully staffed prosecution team consisting of the Chief Prosecutor of the Military Commissions, a civilian Justice Department lawyer on detail to the commission, and two judge advocates. See AE338H, at 1 (Feb. 22, 2017) (trial counsel detailing memorandum); AE389K, at 2 (Nov. 6, 2017) (describing Piette's lack of capital-litigation experience); Commission Tr. 10491 (Nov. 10, 2017) (describing Piette's legal experience). Piette informed the commission of his colleagues' withdrawal and moved to abate proceedings, citing Rule for Military Commissions 506(b), which requires, over and above the MCA's "to the greatest extent practicable" qualification, see 10 U.S.C. § ...