United States Court of Appeals, District of Columbia Circuit
In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri, Petitioner IN RE: MARY E. SPEARS AND ROSA A. ELIADES, PETITIONERS
January 22, 2019
Petition for Writ of Mandamus to the United States Court of
Military Commission Review
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.
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.
F. Palmer, Attorney, U.S. Department of Justice, argued the
cause for respondent. With him on the brief was Danielle S.
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.
Sundel, Head, Appellate Section, Military Commissions Defense
Organization, was on the brief for amicus curiae Chief
Defense Counsel for Military Commissions in support of
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.
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.
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.
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.
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
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.
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.
"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.
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).
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).
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
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.