Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Oral Argument Summary: In re: Abd Al-Rahim Hussein Al-Nashiri

Jacques Singer-Emery
Friday, February 1, 2019, 9:29 AM

On Jan. 22, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in In re: Abd Al-Rahim Hussein Al-Nashiri. Judges Judith Rogers, David Tatel and Thomas Griffith reviewed Abd Al Rahim Hussein Al-Nashiri’s (“Al-Nashiri”) request for a writ of mandamus and prohibition directing the vacatur of the orders convening the military commission which tried him.

Published by The Lawfare Institute
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On Jan. 22, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in In re: Abd Al-Rahim Hussein Al-Nashiri. Judges Judith Rogers, David Tatel and Thomas Griffith reviewed Abd Al Rahim Hussein Al-Nashiri’s (“Al-Nashiri”) request for a writ of mandamus and prohibition directing the vacatur of the orders convening the military commission which tried him. Al-Nashiri also asked that, in the alternative, the court mandate the vacatur of all orders entered by the military commission judge including, but not limited to, all orders presently under review by the Court of Military Commission Review (CMCR). Finally, if the former two modes of relief were denied, Al-Nashiri requested that, at a minimum, the Court instruct the CMCR to order an evidentiary hearing to ascertain the full scope and effect of the trial judge’s alleged misconduct.

Currently on trial before a military commission for his suspected involvement in the 2000 bombing of the USS Cole, Al-Nashiri claims that a military commission judge who oversaw his case, Colonel Vance Spath, USAF, engaged in disqualifying judicial misconduct. Specifically, during an interlocutory appeal to the CMCR from an order of abatement issued by Spath, Al-Nashiri claims to have discovered that Spath was attempting to obtain employment with the Justice Department as an immigration judge. Al-Nashiri argues that Spath’s pursuit of this job prompted him to conduct the petitioner’s trial on an “aggressive schedule” and engage in behavior that “violate[s] long-settled, bright-line rules governing judicial conduct” and resulted in a “total breakdown in the public reputation of the proceedings.”

At the start of the argument, counsel for the petitioner, Michel Paradis (a Lawfare contributor), stated that Spath had violated at least four clear and indisputable rules of judicial conduct, any one of which would warrant the vacatur of the proceeding. First, Spath knowingly concealed facts that called his impartiality into question; second, he angled for a position in the Justice Department when it had a substantial interest in the case before him; third, he traded on the fact that he was the judge in Al-Nashiri’s case for his own personal gain; and fourth, he allowed his personal financial interests to influence how he handled the matter.

The court then asked Paradis if these four allegations had been placed before the CMCR. Paradis responded that the first two issues, the concealment of facts and his desire for a position in Justice Department, were before the CMCR, but that the latter two claims, Spath’s alleged trading on his judicial position and the influence of his personal financial interests, were not.

The court then asked Paradis: Why not present this whole case again to the new military commission judge assigned to Al-Nashiri’s case, create the record there, and then have the whole case proceed in a “orderly fashion.” Paradis responded that there are two practical reasons and one doctrinal reason for not doing this. The first practical problem is that the current military commission judge, Shelly Schools, is also set to be appointed to be an immigration judge for the Justice Department and is waiting to be relieved by the chief judge of the military commission. Paradis argued that, given that Schools’s position mirrors that of Spath, Schools is likely to have a “jaundiced” view of the facts presented. The second practical problem is that the CMCR ruled on the merits against the petitioner with respect to the first two claims. Thus, at a minimum, the military commission judge would have to take the CMCR’s rulings very seriously, if not treat them as binding. Finally, the doctrinal reason for not having the military commission review these two additional violations is found in United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001), wherein the D.C. Circuit observed that, while judicial misconduct is rare, it does happen and needs to be remedied at the earliest possible opportunity. Paradis maintained that the reason for this draconian rule is that even a feeling of judicial partiality might cause the public to stop trusting this country’s the judicial system. Paradis further added that, in Microsoft, the court had far less of a record than in the present case and it declined to send the case back to the district court.

The court then prodded Paradis on the government’s counterargument that the conflict of interest here is minimal, because the Justice Department does not have a substantial interest in this case’s outcome. The court asked whether Paradis believed the conflict would be greater if Spath were applying for another position in the Defense Department. Paradis responded that, if Spath were applying for a military job in the Defense Department, this would be less of an issue because there are provisions in the Military Commissions Act that prohibit reviewing a judge’s conduct on the bench for purposes of promotion.

To the broader point about a lack of conflict, Paradis noted that one of the individuals on the prosecution team, whom Spath characterized as “the lead prosecutor,” was a Justice Department attorney assigned to the case pursuant to an order by the Attorney General. The court asked Paradis what his position would be if there had been no Justice Department attorney on this case. Paradis conceded that, on such facts, Al-Nashiri would have a weaker case, but noted that the conflict of interest was only one of the four disqualifying rule violations in the uncontested record. Paradis added that, unlike the court’s hypothetical, a Justice Department attorney was involved in this case and Attorney General Sessions was particularly interested in the military commissions. Paradis argued that, given this fact pattern, the court should strongly consider vacatur, starting, at the least, when Spath applied for the immigration judge position.

The court then looked to clarify whether the petitioner was arguing that Spath appeared to have an inappropriate interest or had an actual inappropriate interest. Paradis stated that the facts here meet the higher standard of an actual inappropriate interest. Paradis observed that, in the D.C. Circuit, actual bias exists where a reasonable observer, knowing all the facts, would determine that the decision could have been influenced by bias. He borrowed additional reasoning from Tumey v. Ohio, 273 U.S. 510 (1927), in which the Supreme Court stated that judicial bias could be found where there is “any temptation to not hold the line of justice neat clean and true.”

The court then asked the petitioner about orders Spath rendered after his application to the Justice Department that the CMCR subsequently affirmed. Paradis stated that the CMCR had affirmed about half a dozen specific orders and also noted that some of these orders built on one another, were amended orders, or revisited the same issue. The court then inquired as to what vacating the orders that Spath issued after he applied to the Justice Department would look like with respect to the CMCR. Paradis responded that the CMCR’s initial jurisdiction, which was in doubt to begin with, over the interlocutory appeal the government brought from the abatement would fall and its earlier decisions would be vacated. Paradis added that Al-Nashiri could also file a writ of coram nobis seeking the same remedy.

The court then followed up by asking whether it should vacate all of Spath’s orders even though some of them were ministerial and not influenced by bias. Additionally, the court wanted to know why it would need to vacate any orders already affirmed by the CMCR, given the CMCR was an unbiased body that reviewed those orders de novo. The petitioner observed that starting around November 2015, at the latest, Al-Nashiri was deprived of the right to appear before an unbiased trial judge and the goal of the vacatur was to remove the objective harm that biased judge caused when he ruled on all those orders.

The petitioner then pointed to the D.C. Circuit’s decision In re Kempthorne, 449 F.3d 1265 (D.C. Cir. 2006), as an analogous case, where a special master hired an employee of one of the parties. In that case, the court held that everything the special master did after that employee was hired had to be vacated because the court had no idea how that influence affected the case. Paradis also highlighted that the reason courts review bias issues at the earliest opportunity is so that clear decisions can be made. If Spath had disclosed his conflict in 2015, this could have been litigated then and the record could have started in the trial court.

The court then observed that Spath issued “hundreds” of orders prior to submitting his November 2015 application to the Justice Department. Following this observation, the court inquired into the nature of these orders given that all of them were pre-trial. Paradis informed the court that the orders from this period are discovery-compelling orders and a number of rulings around legal motions. Additionally, Paradis noted that these orders would be categorized at a hearing set for early April 2019, but also speculated that the majority were ministerial orders that did not require any action.

The court then asked what vacating the pre-trial proceedings would involve. Paradis stated that the default rule, set by Supreme Court precedent in Lijeberg v. Health Services Acquisition, 486 U.S. 847 (1988), is to vacate all proceedings touched by the tainted individual. Paradis further noted that in Lijeberg the Supreme Court even vacated the findings of a jury after a significant criminal trial already occurred. In this case, Paradis specified that the defense team believed that Spath presided over seventy-nine hearings. From this, Paradis concluded that, despite the years of time over which the hearings occurred, Al-Nashiri was only asking for the vacatur of three to four months’ hearings and proceedings—a lot of which was on evidentiary motions.

The court then asked, if Spath’s bias issue had not come up, how much more evidentiary work was necessary before trial and if a trial date was set at the time of Spath’s rulings. Paradis informed the court that there was no trial date set and that there was still some discovery left to be litigated. Additionally, Paradis, noted that voir dire still needed to be done along with arguments on several motions in limine and other legal motions.

The court then inquired as to when the military commission brought proceedings against Al-Nashiri. Paradis responded the charges were brought around 2008, but clarified that, for the first three years, the case was in limbo after the prosecution unilaterally withdrew the initial charges and then charged him again in 2011. Paradis continued that the case progressed sporadically and there were several abatements due to government interlocutory appeals and the current abatement had taken over a year. Paradis also compared this case to the military commission convened on the 9/11 attacks, which began after Al-Nashiri was charged. Paradis observed that this prosecution generated about eleven to twelve thousand pages of trial record for one defendant while the entire 9/11 prosecution generated 22,000 pages of record.

The court then inquired whether vacatur of the entire record was necessary or whether it could vacate starting either when Spath began participating in the case in July 2014 or when Spath applied to the Justice Department in 2015. The petitioner responded that any of these actions would provide meaningful relief. Paradis added that, under the factors discussed in Lijeberg, the court could go back and say “we are not going to vacate to 2012 but instead vacate to sometime in 2014, or 2015,” the time when Spath might started to apply to the Justice Department. Paradis took a moment to underscore that, while those are perfectly normal remedies in an average case, the compound nature of Spath’s misconduct is really significant and should be taken into account. Paradis further interpreted Lijeberg’s discussion of modest remedies to be talking about cases where there is inadvertent misconduct, not willful and serious misconduct that goes to the integrity of the proceedings.

Paradis also brought to the court’s attention the fact that Spath’s conflict started earlier than his application because his letters of recommendation, one of which was written by a judge on the CMCR, were dated earlier than his formal application. Furthermore, Spath’s writing sample to the Justice Department was a ruling on this case and dated February 2015. Paradis maintained that the Court should vacate all the orders back to February 2015 because of the potential for bias from that date forward. Finally, Paradis observed that if the court wanted to take the slightly more risk-averse approach of removing Spath’s influence from the record entirely, it would only need to go back five or six more months before the date of that writing sample.

The court subsequently observed that appellate courts normally deal with rulings after a trial court has made a final determination, but now that the case is in mandamus before the D.C. Circuit, the actions available to the court might be restricted because Congress limited how it could review military commission matters. The court then asked if there is some entity, other than the D.C. Circuit, which should be parsing the details of the record. The court reasoned that, even if it decided to issue a writ of mandamus, it might be the case that Schools or a substitute, or the CMCR, would scrub the orders. Paradis replied that the uncertainty here is why the default remedy is to vacate all proceedings and just let cases start afresh from the taint of bias and misconduct. Ultimately, he argued, the burden should be on the government to show why the court should opt for finer remedies. The petitioner maintained that the default remedy gives the D.C. Circuit the ability to speak clearly, concisely, and at the earliest opportunity to ensure that the public continues to have faith in the system.

Paradis then turned to the D.C. Circuit’s opinion in Scott v. United States, 559 A.2d 745 (D.C. 1989), which stated that vacatur is a prophylactic measure that may seem extreme, but sends an important message to institutional actors to take potential bias issues seriously. Paradis emphasized that, if there was ever a case in which these concerns were heavily implicated, it was this one. Not only did the government fight tooth and nail against discovery, it was only by chance that the defense team confirmed the rumors it heard about Spath’s conflict when it saw him and Attorney General Sessions in a newspaper photograph celebrating the new class of immigration judges. It was also fortunate that a reporter separately filed the Freedom of Information Act (“FOIA”) request which produced the record Al-Nashiri is now using to argue this case. Furthermore, Paradis stressed that it is only by serendipity that the defense team knows Schools has a similar conflict. Paradis highlighted that, despite all the proceedings and arguments around Spath’s conflict, Schools never presented either side with her conflict, even after the D.C. Circuit stayed the proceedings in front of her to look at Spath.

The court asked if the petitioner had heard about Schools’s conflict before the government’s 28-J letter, which the respondent had submitted to update the court before oral arguments. Paradis responded that his team heard a rumor at a holiday party that Schools had become an immigration judge and then filed a discovery request with the respondents a day or two before Christmas. But Paradis said that the 28-J letter was the first time he had hard confirmation and noted for the court that Schools had applied for a job as an immigration judge even before she became the military commission judge for Al-Nashiri.

Paradis then recounted for the court that, once the CMCR was confronted with the fact that Spath had applied to be an immigration judge and then concealed it, both clear violations of the canons on judicial conduct and the guide on judicial conduct, the CMCR denied review in a summary order stating that the petitioner had not presented any evidence that calls Spath’s impartiality into question. From these facts, Paradis posited that the CMCR has not been serious about trying to understand Spath’s conflict and, generally, does not focus on allegations of judicial misconduct. Paradis noted that in In re Mohammad, 866 F.3d 473 (D.C. Cir. 2017), the D.C. Circuit saw a number of instances where questions about judicial impartiality were not being dealt with carefully. Paradis concluded that if there was any case that merited the default remedy of scrubbing all of Spath’s conduct from the record, it was this one. Paradis then asked to have a couple minutes for rebuttal despite going over his time.

The government, represented by Justice Department attorney Joseph Palmer, started by arguing that the CMCR acted within its discretion when it remanded, without prejudice, the petitioner’s judicial disqualification claim. Palmer argued that the petitioner’s claim should be resolved in the first instance by the military commission. The government informed the court that, because it is two levels up from the military commission, it should not be the first court to find the facts and rule on the issues presented. Palmer also stressed that mandamus is an extraordinary remedy and available when a lower court acts outside its authority. Palmer noted that, when a litigant raises a disqualification claim for the first time in an interlocutory appeal, it is within the discretion of the appellant court to remand that claim to the trial court for an initial ruling on the issue. The respondent stressed that this is exactly what occurred in the CMCR.

At this point, the court asked the respondent how it should look at this case in light of its precedent in In re Mohammad that mandamus is appropriate during the pendency of a proceeding. Palmer acknowledged that mandamus is an appropriate vehicle for a disqualification claim, but added that when the trial court has not yet ruled on an issue it is within the discretion of the intermediate appellate court, in this case the CMCR, to require that the petitioner go back to the lower court and create a record.

The court noted that the present issue is whether a reasonable observer would look at Spath’s actions and conclude he was making decisions he hoped would strengthen his application to be an immigration judge. The court asked Palmer if this type of taint jeopardized the whole process. Palmer replied that any taint could be remedied by the CMCR and the court. Palmer also added that, if this case were to go back to the military commission, Spath or Schools would not ultimately be ruling on the taint issue. Palmer further maintained that even if Spath or Schools were to rule on these issues, judges rule on decisions regarding their own recusal all the time and it is within the discretion of an appellate court to remand a case in order to hear from the judge whose impartiality has been questioned.

The court then asked which military commission judge would rule on the taint issue and added, “would this be Judge Schools, a judge who also applied for a job as an immigration judge.” Palmer replied, the government was uncertain about who the reviewing judge would be. The court stressed that the government should be more certain about this because it directly relates to the government’s position that this case should go to the military commission first. The court also asked the respondent to discuss Al-Nashiri’s argument that the CMCR has thoroughly analyzed this case and, as a result, it will be very difficult for any trial judge to rule against binding and directly applicable precedent. The court then quoted the CMCR’s observation that “Al-Nashiri has not shown [] a reasonable and informed observer would find a problem here.”

Palmer replied that the government reads the CMCR’s actions differently. Rather than restricting the trial court, the CMCR’s initial denial of the mandamus petition was on the non-existent record that was then before it. The respondent supported his position by pointing to the CMCR’s order denying the stay, where it said that Al-Nashiri could still seek a vacatur in the military commission, and if that motion fails, he could then seek a writ of mandamus from the CMCR. Palmer further noted that the CMCR said in that same order “if Al-Nashiri moves to disqualify Judge Spath, the new judge will decide whether Judge Spath acted inappropriately and will enter an order that is consistent with her finding and decision. Al-Nashiri is free to ask this court to review the resolution of his motion. He also is free to ask this court to address issues upon which we have ruled to the extent that the military judge’s order may implicate them. In short, an orderly and substantive adjudication of Al-Nashiri’s disqualification arguments in the trial and the appellate courts not only is the proper way to proceed [but] it [also] does no harm to Al-Nashiri.”

The court then stated that this argument revived its earlier question about Schools, specifically, how likely is it that Al-Nashiri gets a new military judge who has also applied for a Justice Department position as an immigration judge and/or received the position. In other words, would the new judge be personally invested in an outcome where Spath’s actions do not violate judicial ethics. Palmer responded that he thinks it is unlikely, but said that, even if Schools or Spath were deciding this, it is within the discretion of the CMCR to decide to hear from the military judge first.

The court then presented the respondent with another issue raised by the petitioner, namely even if the new judge could look at the ethics issues without bias, s/he could not revisit a whole series of very important orders, the 505 orders, because under 10 U.S.C 949 these ex parte orders regarding evidence are “not subject to a motion for reconsideration by the accused.” Palmer argued that the new judge could reconsider those motions on her own orders or on the motion of the government. The court seems to accept this, but asked the follow up question “would the government make a motion to reconsider the 505 orders?” Palmer replied that if the government was back in the military commission in the context of fashioning a remedy for a disqualification claim, the government would likely make that motion. Palmer then added that this was another reason to a remand the case because it would allow the military commission judge to reconsider all these orders and decide whether the disqualification issue is moot or of limited importance to certain types of orders.

The court then asked the respondent to discuss Al-Nashiri’s argument that Spath’s behavior throughout this whole process violated several canons of judicial conduct. The respondent stated he does not believe there is any controlling case or rule that governs when a military judge who is seeking another judicial position within the executive branch necessarily requires recusal. Palmer argued that this was because military judges already have an employment relationship with the Defense Department, who is also bringing the case. To support this line of reasoning, Palmer stated that the impartiality of military judges is not structural, because they do not have tenure and, just like other judge advocate military officers, are subject to involuntary reassignment and promotion boards. Palmer cited the Supreme Court’s observation in Weiss v. United States, 510 U.S. 163 (1944), that military judges’ impartiality is guaranteed not by independence but by the provisions of the Universal Code of Military Justice (“UCMJ”) that prohibit anyone from attempting to influence their decisions. These rules apply directly to military commission judges and govern the Justice Department as much as the Defense Department. From this Palmer concluded that it is not clear that Spath’s actions automatically created a conflict because the Defense Department and Justice Department already have a close relationship. In order to show this, Palmer cited the fact that military judges routinely discuss, in confidence, what their next assignment might be because they know their job is temporary.

The court then asked if the government is challenging the petitioner’s claim that Spath was subject to the ethical standards the petitioner presented during their argument and brief. The respondent conceded that recusal in this setting is governed by Rule of Military Commission (R.M.C.) 902, and that rule essentially tracks 18 U.S.C § 455(a)’s standard, but clarified that those principles need to be construed in light of the fact that the Commission is a military court. The court acknowledged this point, but distinguished Spath’s appointment to be an immigration judge from any other move within the executive branch. The court stressed that, unlike an application to be any other type of administrative judge, in this particular case Spath was applying for a job in the Justice Department while presiding over a case involving the Attorney General and Justice Department employees. Palmer reiterated that even though judges are subject to the R.M.C. 902 standard, that standard needs to be understood in light of the fact that military judges are already employees of the executive branch and are normally looking to the Defense Department for a follow-on assignment while they rule on Defense Department cases.

The court then asked if the respondent’s position on this issue is simply that a reasonable person knowing all the circumstances would find that Spath’s application for a job in the Justice Department is irrelevant because it is the same as an internal Defense Department transfer. Palmer replied that he did think that Spath’s actions needed to be understood within the context of the military court system and added that he believed the Circuit would benefit from a record that allowed the military commission and the CMCR to discuss their interpretation of the military’s recusal standards. The government then stressed that the military commission and the CMCR’s experience on this issue would show that judicial impartiality in the Defense Department is not protected by structural independence, but by unlawful influence provisions.

The court then observed that the Justice Department is not nearly as walled off from these prosecutions as the respondent’s brief presupposes. To prove this point, the Court stated that there are two references to the Attorney General in the Military Commission Act: § 949(a), which states that when the Secretary of Defense sets up the procedures, s/he must do so in consultation with the Attorney General; and § 950(h), which states that appellate council, appointed under Department of Defense Regulations may, when requested to do so by the Attorney General, represent the United States before the District of Columbia Circuit or the Supreme Court. From this the court concluded that the Act was written such that the Attorney General could be involved at the beginning, through the setting up of procedures discussed in § 949(a), and at the end, through appointing council in § 950(h). In light of this analysis, the court asked the respondent to discuss Al-Nashiri’s argument that Spath’s interactions with Justice Department were, therefore, deeply relevant to his impartiality.

Palmer countered that the respondent is not disputing that the Attorney General and the Justice Department have some involvement in the military commission system, but rather that whatever the Justice Department’s involvement, it is much less than Defense Department’s, and the judges in every military commission case are employees of the Defense Department. The court then interrupted the respondent and pressed the idea that the standard here is an appearance of impropriety. The court then asked the respondent if a reasonable person, knowing about the Justice Department’s involvement statutorily in the proceedings and knowing about Spath’s application for a job, would not have some doubts about Spath’s impartiality. Palmer stated that this was the government’s position because a reasonable person would know the relevant facts and circumstances, which include the reality that military judges are not protected by structural independence from the executive branch, but instead by unlawful influence provisions.

The court then asked if Spath’s type of conflict exists all the time. Palmer responded that this was not necessarily the norm, but what does go on all the time is that military judges do not have tenure. The court then asked more affirmatively if Defense Department judges regularly apply for jobs within the Justice Department while Justice Department lawyers are appearing before them and the Justice Department is taking note of their rulings. Palmer conceded that this was an unusual circumstance because military tribunals do not ordinarily involve Justice Department lawyers. The court stated that it thought that this was a significant concession. Palmer replied that what makes the answer in this case unclear is that there is no direct relationship between the immigration judge position for which Spath applied and the military commission. From this the respondent posited that a reasonable person would not think that the decision about whether Spath would be appointed as an immigration judge would turn on his rendering favorable rulings for the government in the military commission.

The court then noted that when Spath applied for the job, he used an opinion he wrote in this case as a writing sample and asked Palmer if he assumed that a reasonable person, knowing all the circumstances, would know that fact as well. Palmer conceded this point. The Court continued that, not only did Spath use his work on this case in his application, but he also did not disclose to the parties that he was applying to be an immigration judge in the Justice Department. Next, the Court noted that after the Justice Department gave Spath a start date, the next day he abated the proceedings and said it may be time for him to retire. Finally, the court concluded that because the standards of judicial behavior apply here, the Court could not see how Spath’s actions “pass the smell test.”

Palmer responded that Spath’s application did include an order from the military commission case, but that the order displayed his independence and was averse to the government. Palmer highlighted that Spath’s writing sample was a decision that vacated an order in the case because he felt an intervening authority was unlawfully attempting to influence him. From this, Palmer concluded that Spath’s references to the military commission and other judicial service in his Justice Department application were meant to show that he was an experienced and independent judge.

The court stated that, it heard the respondent’s point, but even though Spath’s motives may have been totally pure, the standard here is objective and based on the perception of impropriety. Palmer reiterated that within this case the facts show that Spath constructed his application to display his judicial independence. Palmer further stated he could not find cases or a set of practices where judges have recused themselves in analogous circumstances.

The court then asked the petitioner how the death penalty should factor into its approach in this case and if these types of conflicts regularly exist in Defense Department capital cases. Palmer replied that he could only think of one case, United States v. Mikhel, 889 F.3d 1003, 1025 (9th Cir. 2018), decided by the Ninth Circuit. In that case, the judge put his name forward to be the U.S. Attorney in the district that was prosecuting a capital case before him. However, Palmer noted, and the Court agreed, that a significant difference in Mikhel was that the judge ended up disclosing his conflict and withdrawing his application to be the U.S. Attorney.

The court requested that Palmer discuss his proposition that it is common for Article III judges to be considered for positions in the executive branch while they hear cases involving the government. Palmer elaborated that there is not a practice of judges recusing themselves from government cases when they are under consideration for jobs in the executive branch. However, before he could elaborate on this point, the Court stated that many judges think an inquiry from the executive branch into a judge’s interests in a job would cause the judge to refuse the job immediately. The court added that if the executive branch wants to offer a job to a sitting judge, it does not test their interest first, it just offers them the job. Palmer clarified that his position was based on the fact that judges will regularly take positions in the executive branch or higher positions in the judiciary, and when they are being considered for these positions there does not appear to be a standard practice of judges refusing to take cases involving the government.

The court then asked the respondent “suppose [hypothetically] we think we need to grant this writ. What is your view about the remedy? If we were going to vacate orders issued by judge Spath post 2015, what is your view about that?” Palmer replied that if this were the case, the Court should let the military commission and the CMCR fashion and tailor the remedy and disputed the petitioner’s view that the default action in these cases is to vacate everything a judge did. Palmer further observed that the D.C. Circuit in Microsoft did not do that and posited that in this hypothetical the military commission and the CMCR should be allowed to rule on the specific orders Al-Nashiri disputed. The respondent repeated the government’s position that the military commission should rule on the orders in the first instance, and, if necessary, its decisions should be reviewed first by the CMCR, and then the D.C. Circuit. Palmer added that given the D.C. Circuit sits two levels up from the trial court and neither of the two lower courts issued a ruling on the immediate issues before the court, a writ of mandamus is currently inappropriate.

The court then asked if it was possible to tailor the order such that someone other than Schools would review Spath’s decisions. Palmer reiterated that he thought it was unlikely that Schools would be the reviewing judge, but it was not outside the discretion of the CMCR to let Schools make the first set of rulings. Palmer also added that if Schools’s retirement is approved, the government would not oppose a motion to reassign the case.

The court noted that if Schools retires, the case would need to be reassigned anyway. Palmer explained that the Air Force needs to approve her retirement and set an end date. If this occurred, the government would not oppose Al-Nashiri’s motion to reassign the case, regardless of how far in the future the Air Force set Schools’s retirement. The respondent added that the chief judge of the military commission judiciary assigns the judges and the prosecution does not have influence or control over who is assigned to which cases.

Following this discussion Palmer highlighted that the respondent’s primary submission is that the petitioner’s attempt to obtain a writ of mandamus is inappropriate because the CMCR acted within its discretion when it did not reach the merits of the issues the first time around. Palmer maintained that the trial court should get a chance to rule on the petitioner’s arguments. Palmer supported this conclusion by noting that mandamus is where the higher court says the lower court failed in its responsibility because it did something it was not authorized to do. The court responded by saying that Palmer’s statement was true for everything except appearance issues. Palmer disagreed and argued that while bias causes irreparable injury, it does not remove the normal mandamus standard. Palmer continued that, in this case, the CMCR acted within its discretion because it is an intermediate appellate court that was looking to see how the trial court would rule on these issues.

The court replied by reading from its decision in Cobell v. Norton, 334 F.3d 1128, 1139 (D.C. Cir. 2003), stating “when the relief sought is the recusal of a judicial officer, the injury suffered by a party required to complete judicial proceedings overseen by that officer is by itself irreparable.” From this the Court concluded that there is already binding law related directly to this case. This precedent provides that in the case of harm, a writ of mandamus allows for a direct appeal. The respondent distinguished the Court’s reasoning by noting that this was not an issue of waiting for final judgment, but rather giving the trial court the opportunity to rule on the immediate issue so the petitioners could bring an interlocutory appeal based on a trial court’s ruling. Palmer again stressed the fact that the CMCR has the discretion to either make this decision immediately or hear from the trial court before it rules.

Council for the petitioner was then given a few minutes for rebuttal.

Paradis started his rebuttal by taking strong exception to the respondent’s claim that military judges are held to “lesser ethical standards” than ordinary judges. To support this proposition, Paradis cited the Court of Appeals for the Armed Forces (CAAF) decision in United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010), where the CAAF wrote “the appearance of impartiality may be especially important in the military justice context.” Paradis argued that this observation is correct precisely because the structural insulation, provided to Article III courts, is not present in the military commission and the public has to rely on military commission judges to make decisions that are going to be unpopular to the government in these high-profile capital cases. Paradis emphasized that for this reason, the public cannot have any doubts about these judges’ financial interests interfering with their ability to be just.

Paradis then quickly turned to Spath’s failure to disclose his pursuit of the immigration judgeship as conduct violating Canon of Judicial Conduct Rule 3(D) as well as R.M.C. 902(d)(1). Before Paradis could continue, the court interrupted the petitioner and asked what he would do with the government’s argument that this case has not been appropriately decided at the trial court level or even at the CMCR. Paradis responded by stating that petitioner and respondent disagree about what occurred at the CMCR. Paradis noted that when the D.C. Circuit attempted to enter a stay the CMCR “backtracked and muddied the record,” but still thoroughly analyzed the merits of this case. To support this conclusion, petitioner noted that the government’s brief to the CMCR spent about a page-and-a-half to two pages arguing that the case should be sent back to the military commission and seventeen to eighteen pages arguing the case’s merits. Paradis then quoted directly from the government’s CMCR brief to support the conclusion that respondent argued on the merits that “a reasonable person knowing all the relevant facts [would not] question judge Spath’s impartiality.”

The court tried to find a distinction here by noting that during the CMCR appeal, the petitioner did not allege all the facts that they are alleging now. Paradis noted that a number of the crucial facts were missing at that time, including those showing Spath had sought an appointment from the Attorney General, received it, and concealed the prior two events. Additionally, Paradis explained that the parts of the record which have since been added from the FOIA request show that the initial violations were even more egregious than originally believed. Paradis maintained that the FOIA facts speak to why the rules governing post judicial employment are so clear and were so clearly violated here, especially as they related to seeking financial gain. Paradis concluded that these new facts, while important, were not relevant for making a distinction between the case the CMCR heard and the one currently before the court, especially as this case relates to restoring the public’s faith in the credibility of Al-Nashiri’s military commission proceedings.

Petitioner then cited several rules of judicial conduct related to Spath, starting with the sections on seeking post-judicial employment. Paradis cited § 902(b)(5)(a) of the Rules of Military Commissions, which is comparable to Canon 3C(1)(c) of the mechanics of judicial conduct. He also cited Canon 2(B) for the rule prohibiting a judge from trading on his/her position. Finally, Paradis ended with Canon 3 and the case Tumey v. Ohio for the proposition that judges should not let outside factors, particularly financial interests, influence their decisions.

Paradis then fully turned to the question of having the case return to the military commission. Paradis observed that the only fact the government seems to dispute is what was in Spath’s mind and noted that the government said that there was going to be some sort of hearing where Spath would testify about what he did and why he did it. Paradis observed that this probably would not help the military commission’s credibility. The petitioner posited that having such a hearing would be completely irrelevant because this is not a subjective test, but rather an objective standard about what the public reasonably believes.

The court then asked if the petitioner agreed with Palmer’s stance that 10 U.S.C 949 says a 505 order can be vacated at the instance of the government or a judge’s motion. Paradis responded that the respondent’s reading of 10 U.S.C 949 is not one he necessarily agrees with but he would need to read and analyze it more closely before agreeing or disagreeing that position.

Finally, Paradis concluded by saying that all these complicated issues related to what should or should not be vacated and how that selection process would take place is exactly why a broad vacatur is the default rule. The respondent observed that Lijeberg talks about circumstances where vacatur is not appropriate, but here there are only pretrial proceedings and there is no need for months or years spent sorting through what is or is not tainted in this capital case. Concluding, Paradis stated that while he hopes this type of conflict is rare, the only way to ensure it is rare is if the court vacates the proceedings below and sends a clear message that this kind of misconduct is not acceptable.

The court then had one last question for Palmer related to the FOIA documents. The court recounted that Palmer thought the CMCR was right to remand this case for further investigation of the facts and asked if there were any facts, not in the record or part of the FOIA returns, that the Court should know. Palmer replied that the government does not challenge the authenticity of the FOIA documents or dispute their basic facts but does believe that starting this inquiry with a factual hearing in the trial court would allow Spath to explain his actions as well as bring his military experience and the military experience of the CMCR to bear on the bias issues presented in this case.

The court then replied that it understood the government’s position that the court would benefit from having a military judge look at the facts first, but questioned why that military judge would hear testimony from Spath given that both parties and the court agree that the standard here is objective. Palmer replied that Spath’s perspective would be important here because it would show the court, and place on the record, how military judges view their careers and why it might be appropriate for them to emphasize their experience when seeking another judicial appointment. Palmer closed by noting that hearing a military judge describe the realities of the military personnel system and how a judge is not independent from the executive branch, but still governed by unlawful influence provisions, would be important for any objective observer trying to understand the circumstances of this case.

Jacques Singer-Emery is a graduate of Harvard Law School and previously spent four years in the New York Police Department (NYPD), first as a policy advisor to Police Commissioner Bratton and then as a Case Analyst for the NYPD Intelligence Bureau. He is the Editor-in-Chief of the National Security Law Journal and a researcher for Professor Philip Heymann and Professor Blum. Jacques graduated Magna Cum Laude from Princeton University in 2013.

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