In re: Mary E. Spears and Rosa A. Eliades ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2019 Decided April 16, 2019
No. 18-1279
IN RE: ABD AL-RAHIM HUSSEIN MUHAMMED AL-NASHIRI,
PETITIONER
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.
No. 18-1315
IN RE: MARY E. SPEARS AND ROSA A. ELIADES,
PETITIONERS
On Petition for a Writ of Mandamus to the
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United States Court of Military Commission Review
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 for the Court filed by Circuit Judge TATEL.
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
3
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
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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-
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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
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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).
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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
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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
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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. § 949a(b)(2)(C)(ii), that “the accused [in a capital case]
has the right to be represented . . . by at least one . . . counsel
who is learned in applicable law relating to capital cases,” Rule
for Military Commissions 506(b).
Spath denied the motion to abate, holding that the lawyers
required his permission to withdraw and further finding “no
good cause . . . to warrant [their] excusal.” AE389F, at 4–5
(Oct. 27, 2017). “Mr. Kammen, Ms. Eliades, and Ms. Spears,”
he stated, “remain counsel of record in this case, and are
ordered to appear at the next scheduled hearing of this
Commission.” AE389A, at 1 (Oct. 16, 2017). When the
lawyers did not return, Spath ruled that proceedings would
continue even absent learned counsel. Al-Nashiri did not “have
a right to learned counsel . . . at every aspect of every
proceeding,” he stated, “especially when it doesn’t relate to
capital matters.” Commission Tr. 10084 (Nov. 3, 2017).
From November 2017 onwards, then, the commission
proceeded through various “pretrial issues” that, in Spath’s
view, were “not related to capital matters.” Commission Tr.
10166 (Nov. 3, 2017). The prosecution presented two
witnesses who offered testimony regarding a previously filed
defense motion to suppress. See Commission Tr. 10086–10153
(Nov. 3, 2017) (testimony of Stephen Gaudin); Commission
Tr. 10201–42 (Nov. 7, 2017) (testimony of Robert McFadden).
The commission concluded the deposition (which had begun
several months earlier) of Al-Nashiri’s alleged co-
conspirator—a witness who, in the prosecution’s opinion, had
previously offered “devastating direct and corroborated
evidence.” Commission Tr. 10174 (Nov. 3, 2017); see also
Commission Tr. 10244 (Nov. 7, 2017) (summarizing the
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deposition). And across several multi-day hearing sessions, the
commission conducted “preadmission of evidence,” a process
that involved over thirty prosecution witnesses whose
testimony laid the “foundation for real [physical] evidence,”
which Spath then “conditionally admitted.” Commission Tr.
10483–94 (Nov. 10, 2017); see also Commission Tr. 11140–
45 (Jan. 19, 2018) (detailing Spath’s “preadmission”
procedure).
Throughout these proceedings, Piette consistently
reiterated his position that because Al-Nashiri stood accused of
capital crimes, all proceedings were capital proceedings at
which Al-Nashiri had the right to capital-qualified counsel.
Confessing his own “lack of qualifications” “to assist, advise,
or represent Mr. Al-Nashiri in his capital trial,” AE389K, at 2–
3 (Nov. 6, 2017), Piette declined to make arguments, cross-
examine witnesses, or otherwise substantively participate in
any proceedings without the presence of learned counsel.
Twice more he moved for abatements, see id. at 1; Commission
Tr. 11689 (Feb. 12, 2018), but Spath remained unpersuaded,
accusing “the defense community [of] making strategic and
tactical decisions to delay,” Commission Tr. 11072 (Jan. 19,
2018).
As time went on, Spath became increasingly frustrated
with defense counsel. In December he issued orders directing
Spears and Eliades “to appear . . . and continue representing the
Accused . . . or show cause as to why [they] cannot continue.”
AE389AA, at 1 (Dec. 11, 2017) (order to Eliades); AE389BB,
at 1 (Dec. 11, 2017) (order to Spears). Spears and Eliades
responded with lengthy letters explaining their reasons for
withdrawal. See AE389KK, at 1 (Jan. 17, 2018) (Eliades’s
letter); AE389LL, at 1 (Jan. 17, 2018) (Spears’s letter). Then,
at Spath’s direction, the government attempted to “secure
[Spears’s and Eliades’s] attendance” by twice serving them
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with subpoenas. Commission Tr. 11054 (Jan. 19, 2018). The
lawyers moved to quash each one.
The two subplots of Spath’s story—the judge’s
employment negotiations with the Executive Office for
Immigration Review and his standoff with Al-Nashiri’s
defense counsel—reached their denouement the week of
February 12, 2018. On Monday, Spath orally denied Spears’s
and Eliades’s motions to quash, leaving in place the subpoenas
requiring their appearance via videoconference the following
day. See Commission Tr. 11536 (Feb. 12, 2018). But when, on
Tuesday morning, Spears and Eliades informed the
government that they would not appear, see AE389XX, at 1
(Feb. 13, 2018), Spath directed the government to draft writs
of attachment for their arrest so that, as he put it, he would have
“options available . . . when we get here tomorrow,”
Commission Tr. 11914–15 (Feb. 13, 2018). Spath, however,
made no decisions on Wednesday or Thursday. Instead, he
explained that he was “still trying to figure out what to do,”
Commission Tr. 11919 (Feb. 14, 2018), and that he would
“think about this overnight,” Commission Tr. 12355 (Feb. 15,
2018).
But Spath apparently was mulling a different important
decision on Thursday night. Earlier that day, he had received
an email from a human resources specialist in the Executive
Office for Immigration Review informing him that he was
“able to [start] with [the] agency . . . on July 8, 2018.” Reply
Attachments A-19. “When you have returned to the [S]tates,”
she wrote, “please let me know so we can arrange a time to call
you and go over the Immigration Judge appointment
information.” Id. “Thank you,” Spath replied. Id. at A-18. “I
get back over the weekend. I will give you a call on Tuesday.”
Id.
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The following morning, Spath abated “indefinitely” the
commission proceedings against Al-Nashiri. Commission Tr.
12376 (Feb. 16, 2018). Declaring that “[o]ver the last five
months . . . [his] frustration with the defense [had] been
apparent,” Spath concluded that “[w]e need action from
somebody other than me” or else “[w]e’re going to continue to
spin our wheels and go nowhere.” Commission Tr. 12364,
12374 (Feb. 16, 2018). He added, “[I]t might be time for me to
retire, frankly. That decision I’ll be making over the next week
or two.” Commission Tr. 12374 (Feb. 16, 2018).
B.
The government soon appealed Spath’s abatement order to
the Court of Military Commission Review. During the
pendency of that appeal, Spath submitted his retirement
paperwork to the Air Force, and the process began to find “a
new judge with high enough clearance” for reassignment to Al-
Nashiri’s case. Reply Attachments A-20. Several months and
another start-date delay later, see id. at A-21, Spath announced
his retirement, and Colonel Shelly Schools took over as the
military judge in Al-Nashiri’s case on August 6, 2018, see
AE302A, at 1 (Oct. 15, 2018).
At that time, all Al-Nashiri knew was that Spath planned
to retire and that Schools had replaced him; Spath had given no
indication that he had applied for and accepted a job in the
Justice Department. But in summer 2018, Al-Nashiri’s defense
team—which by this time had added Captain Brian Mizer, one
of Al-Nashiri’s former lawyers who had been recalled to active
duty—received “credible reports” that Spath had been pursuing
employment as an immigration judge. Petition for a Writ of
Mandamus and Prohibition (“Al-Nashiri Pet.”) 23, In re Al-
Nashiri, No. 18-1279 (Oct. 4, 2018). Al-Nashiri’s lawyers
submitted a request for discovery on the matter, but the
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government refused, calling the reports “unsubstantiated
assertions” and arguing that the “[d]efense request offers no
basis to believe that the former presiding military judge has
applied for a position with the [Justice Department] or even
contacted the [Justice Department] regarding employment.”
Corrected Al-Nashiri Attachments, Attachment B, at 1. Less
than a week later, however, an Associated Press photograph
surfaced showing Spath standing next to Attorney General
Sessions at a welcome ceremony for new immigration judges.
See Carol Rosenberg, Controversial Guantánamo Judge Joins
Jeff Sessions in Immigration Judge Ceremony, McClatchy
(Sept. 14, 2018), https://www.mcclatchydc.com/news/nation-
world/national/national-security/article218303315.html.
Arguing that Spath’s employment negotiations created a
disqualifying appearance of bias, Al-Nashiri filed a motion in
the Court of Military Commission Review seeking an order
compelling the government to produce the requested discovery
and vacating Spath’s rulings. See Motion 1, United States v. Al-
Nashiri, No. 18-002 (CMCR Sept. 13, 2018). The CMCR
denied that motion in late September, explaining that because
Al-Nashiri had yet to raise his allegations in the still-abated
commission, the appellate court lacked a “factual record . . . at
the trial level to support [Al-Nashiri’s] allegations.” Order 2,
United States v. Al-Nashiri, No. 18-002 (CMCR Sept. 28,
2018). Apparently construing Al-Nashiri’s request as one for a
writ of mandamus, the court then concluded that Al-Nashiri
had failed to “show[] that ‘a reasonable and informed observer
would question [Spath’s] impartiality.’” Id. (quoting SEC v.
Loving Spirit Foundation Inc., 392 F.3d 486, 493 (D.C. Cir.
2004)).
The same day the CMCR issued its order, the Justice
Department announced “the investiture of . . . the largest class”
of immigration judges “in the agency’s history”; number 41 on
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the list of 46 names was Colonel Vance Spath. U.S.
Department of Justice, Office of Public Affairs, EOIR
Announces Largest Ever Immigration Judge Investiture (Sept.
28, 2018), https://www.justice.gov/opa/pr/eoir-announces-
largest-ever-immigration-judge-investiture; see also U.S.
Department of Justice, Executive Office for Immigration
Review, Notice, Executive Office for Immigration Review
Swears in 46 Immigration Judges 12 (Sept. 28, 2018),
https://www.justice.gov/eoir/page/file/1097241/download.
The following week, Al-Nashiri filed a petition for a writ
of mandamus in this court. But that does not quite end the story.
On October 11, 2018, the CMCR issued its opinion in the
government’s appeal of Spath’s February 2018 abatement
order. Asserting “pendent jurisdiction” over the issue of Al-
Nashiri’s representation, the court held that the “right to
learned counsel is not absolute” but rather exists “only . . . to
the ‘greatest extent practicable.’” United States v. Al-Nashiri,
No. 18-002, slip op. at 21, 34 (CMCR Oct. 11, 2018) (quoting
10 U.S.C. § 949a(b)(2)(C)(ii)). The CMCR also held that Spath
“had the responsibility to review the [Chief Defense Counsel’s]
decision” to excuse Al-Nashiri’s defense counsel and that “the
record does not establish good cause for” their excusal. Id. at
37. Concluding, then, that Al-Nashiri’s defense counsel
“remain[ed] counsel of record,” the court vacated Spath’s
abatement order and directed “Al-Nashiri’s trial . . . to resume
forthwith.” Id. at 38. While, in its words, “retain[ing]
jurisdiction over the issue of Al-Nashiri’s representation,” the
CMCR otherwise remanded the case “to the military judge for
proceedings consistent with [its] decision.” Id.
With the abatement lifted, Al-Nashiri filed motions in both
the CMCR and this court requesting to stay commission
proceedings pending our resolution of his mandamus petition.
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The CMCR denied that motion on November 2, 2018, opining
that “[t]he principal flaw in Al-Nashiri’s underlying motion to
disqualify Judge Spath is that it should have been made in the
military commission where a factual record could have been
created.” Order 3, United States v. Al-Nashiri, No. 18-002
(CMCR Nov. 2, 2018). “If Al-Nashiri moves to disqualify
Judge Spath” once commission proceedings resume, the court
explained, “the new judge will decide whether Judge Spath
acted inappropriately.” Id. at 4. But Al-Nashiri never presented
his argument to Judge Schools, as we issued a stay on
November 7, 2018.
In fact, Judge Schools’s tenure on Al-Nashiri’s case did
not last long. By letter dated January 4, 2019, the government’s
attorneys in this case informed us that, upon conducting an
investigation prompted by defense counsel’s request, they had
recently discovered that “Judge Schools intends to retire from
the military in the relatively near future,” as she, too, had
“applied for and . . . accepted a post-retirement immigration
judge position.” Fed. R. App. P. 28(j) Letter 1, In re Al-Nashiri,
No. 18-1279 (D.C. Cir. Jan. 4, 2019). Army Colonel Lanny J.
Acosta is now assigned to Al-Nashiri’s case.
Now before us are two petitions for writs of mandamus:
one filed by Al-Nashiri, who seeks a writ directing either “the
vacatur of the orders convening the military commission”
against him or “the vacatur of all orders entered by [Spath]
whilst he was under a concealed and disqualifying ethical
conflict,” Al-Nashiri Pet. 1; and the other filed by Spears and
Eliades, who seek mandamus relief “vacating the CMCR’s
October 11, 2018 Opinion compelling [them] to serve as . . .
[d]efense [c]ounsel after they were lawfully excused,” Petition
for Writ of Mandamus 1, In re Spears, No. 18-1315 (Nov. 21,
2018). We begin with Al-Nashiri’s petition.
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II.
The Military Commissions Act of 2009 vests this court
with jurisdiction to review only “final judgment[s] rendered
by . . . military commission[s].” 10 U.S.C. § 950g(a). But
because the All Writs Act permits us to “issue all writs
necessary or appropriate in aid of [our] . . . jurisdiction[],” 28
U.S.C. § 1651(a), “we can issue a writ of mandamus now to
protect the exercise of our appellate jurisdiction later,” Al-
Nashiri I, 791 F.3d at 76. As we explained in In re Mohammad,
where we removed a different judge from a military
commission case for expressing his opinion on the guilt of the
accused, mandamus provides “an appropriate vehicle for
seeking recusal of a judicial officer during the pendency of a
case, as ‘ordinary appellate review’ following a final judgment
is ‘insufficient’ to” remove the insidious taint of judicial bias.
866 F.3d 473, 475 (D.C. Cir. 2017) (quoting Al-Nashiri I, 791
F.3d at 79).
Confident of our jurisdiction to consider mandamus
petitions seeking judicial disqualification, “[w]e are
nonetheless mindful of the . . . important purpose” served by
the MCA’s final judgment rule and therefore of the need to
“faithfully enforce the traditional prerequisites for mandamus
relief.” Al-Nashiri I, 791 F.3d at 78. For a court to grant a writ
of mandamus, three conditions must be met: the petitioner must
demonstrate “that [his] right to issuance of the writ is clear and
indisputable,” “the party seeking issuance of the writ [must]
have no other adequate means to attain the relief he desires,”
and “the issuing court, in the exercise of its discretion, must be
satisfied that the writ is appropriate under the circumstances.”
Cheney v. U.S. District Court for the District of Columbia, 542
U.S. 367, 380–81 (2004) (alterations in original) (internal
quotation marks omitted). We address each requirement in
turn, beginning with Al-Nashiri’s right to relief.
17
A.
Unbiased, impartial adjudicators are the cornerstone of
any system of justice worthy of the label. And because
“‘[d]eference to the judgments and rulings of courts depends
upon public confidence in the integrity and independence of
judges,’” jurists must avoid even the appearance of partiality.
United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir.
2001) (quoting Code of Conduct for United States Judges,
Canon 1 cmt. (2000)). “Such a stringent rule,” to be sure, “may
sometimes bar trial by judges who have no actual bias and who
would do their very best to weigh the scales of justice equally
between contending parties.” In re Murchison, 349 U.S. 133,
136 (1955). But “‘to perform its high function in the best
way,’” the Supreme Court has emphasized, “‘justice must
satisfy the appearance of justice.’” Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 864 (1988) (quoting In re
Murchison, 349 U.S. at 136).
The principle that judges must preserve both the reality
and appearance of impartiality finds expression in many
sources of law. “It is axiomatic,” of course, that due process
demands an unbiased adjudicator, and the Supreme Court has
therefore identified several circumstances in which “‘the
probability of actual bias on the part of the judge . . . is too high
to be constitutionally tolerable.’” Caperton v. A.T. Massey
Coal Co., 556 U.S. 868, 876–77 (2009) (quoting Withrow v.
Larkin, 421 U.S. 35, 47 (1975)). But the “Due Process Clause
demarks only the outer boundaries of judicial
disqualifications,” Aetna Life Insurance Co. v. Lavoie, 475
U.S. 813, 828 (1986), and various statutes and codes of
conduct, in service of their essential function “to maintain the
integrity of the judiciary and the rule of law,” “provide more
protection than due process requires,” Caperton, 556 U.S. at889–90. These assembled sources of rules governing judicial
18
conduct—including section 455 of Title 28 of the United States
Code, the Code of Conduct for United States Judges, the
American Bar Association’s Model Code of Judicial Conduct,
and the Rules for Courts-Martial—all speak with one clear
voice when it comes to judicial recusal: judges “shall
disqualify” themselves in any “proceeding in which [their]
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a); Code of Conduct for United States Judges, Canon
3C(1); American Bar Association, Model Code of Judicial
Conduct, Rule 2.11; Rule for Courts-Martial 902(a).
The Rules for Military Commissions are no different. Rule
902(a) requires that a “military judge shall disqualify himself
or herself in any proceeding in which that military judge’s
impartiality might reasonably be questioned.” Like the judicial
recusal statute they mirror, the Rules for Military Commissions
focus not on whether a military judge harbored actual bias, but
rather on what “would appear to a reasonable
person . . . knowing all the circumstances.” Liljeberg, 486 U.S.
at 860–61 (quoting Health Services Acquisition Corp. v.
Liljeberg, 796 F.2d 796, 802 (5th Cir. 1986)); see also Opp. to
Al-Nashiri 43 (acknowledging that the “Rules for Military
Commissions incorporate the judicial recusal statute”). “[A]ll
that must be demonstrated to compel recusal,” then, is “a
showing of an appearance of bias . . . sufficient to permit the
average citizen reasonably to question a judge’s impartiality.”
United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981).
In asking what would cause a reasonable person to doubt
a judge’s neutrality, we recognize the somewhat “subjective
character of this ostensibly objective test.” Pepsico, Inc. v.
McMillen, 764 F.2d 458, 460 (7th Cir. 1985). That said, relying
on section 455, judicial codes of conduct, precedent, and our
own judgment as ethics-bound jurists to guide us, we conclude
19
that, based on the totality of the circumstances, Judge Spath’s
conduct falls squarely on the impermissible side of the line.
To begin with, it is beyond question that judges may not
adjudicate cases involving their prospective employers. The
risk, of course, is that an unscrupulous judge may be tempted
to use favorable judicial decisions to improve his employment
prospects—to get an application noticed, to secure an
interview, and ultimately to receive an offer. And even in the
case of a scrupulous judge with no intention of parlaying his
judicial authority into a new job, the risk that he may appear to
have done so remains unacceptably high. Simply put, “a judge
cannot have a prospective financial relationship with one side
yet persuade the other that he can judge fairly in the case.” Id.
at 461. This is why, for example, the Judicial Conference’s
Committee on Codes of Conduct has opined that “[a]fter the
initiation of any discussions with a [potential employer], no
matter how preliminary or tentative the exploration may be, the
judge must recuse . . . on any matter in which the [prospective
employer] appears.” Judicial Conference of the United States
Committee on Codes of Conduct, Advisory Opinion No. 84:
Pursuit of Post-Judicial Employment (April 2016), in Guide to
Judiciary Policy, vol. 2, pt. B, at 125, 125 (2019); see also id.(explaining that “[a]lthough this opinion discusses exploration
of employment opportunities with a law firm, the principles
discussed would apply to other potential employers”).
This general prohibition applies with equal force to judges
serving on military commissions, where, as in every other
court, “[t]he dignity and independence” of the commission “are
diminished when [a] judge comes before the lawyers in [a] case
in the role of a suppliant for employment.” Pepsico, 764 F.2d
at 461. The question, then, is whether Spath’s prospective
employer was a party to Al-Nashiri’s case such that it “would
appear to a reasonable person . . . knowing all the
20
circumstances,” Liljeberg, 486 U.S. at 860 (internal quotation
marks omitted), that Spath’s impartiality was in jeopardy. To
answer this inquiry, we identify first the “employer” and then
the “party.” If they are one and the same, then an intolerable
appearance of partiality exists.
As to the first inquiry—who is Spath’s employer?—
although the Justice Department is a complex institution with
many offices performing many different functions, it is enough
to decide this case to know that the Attorney General himself
is directly involved in selecting and supervising immigration
judges. Unlike administrative law judges, who are hired
through a selection process administered by the Office of
Personnel Management, immigration judges such as Spath are
appointed directly by the Attorney General. Compare 5 C.F.R.
§ 930.204 (“An agency may appoint an individual to an
administrative law judge position only with prior approval of
[the Office of Personnel Management]”), with 8 U.S.C.
§ 1101(b)(4) (“The term ‘immigration judge’ means an
attorney whom the Attorney General appoints as an
administrative judge within the Executive Office for
Immigration Review . . . .”). Once appointed, moreover,
immigration judges are “subject to such supervision” and
obligated to “perform such duties as the Attorney General shall
prescribe.” 8 U.S.C. § 1101(b)(4).
As to the second inquiry—who is a party to Al-Nashiri’s
case?—the government acknowledges that the “Attorney
General . . . and the Justice Department have some
involvement in the [m]ilitary [c]ommission system” but
nonetheless argues that “whatever level that involvement is,” it
is “much less than the Defense Department[’s].” Oral Arg. Tr.
34:16–25, In re Al-Nashiri, No. 18-1279 (D.C. Cir. Jan. 22,
2019). This, of course, is true. The MCA gives the Secretary of
Defense, not the Attorney General, authority to convene
21
military commissions, see 10 U.S.C. § 948h, and as a formal
matter, “trial counsel of a military commission . . . prosecute in
the name of the United States,” not any particular agency, 10
U.S.C. § 949c(a). On issues of judicial impartiality, however,
we confront a question of reasonable appearances, not just
formal designations. And we cannot escape the conclusion that
the average, informed observer would consider Spath to have
presided over a case in which his potential employer appeared.
Two facts compel this conclusion.
First, the Justice Department, presumably with the
approval of the Attorney General, detailed one of its lawyers to
prosecute Al-Nashiri. See Rule for Military Commission
501(b) (requiring that “if [civilian trial] counsel are employed
by another government agency,” they may be detailed only
“with the approval of the head of that agency”). The Rules for
Military Commissions themselves label this prosecutor a
“party” to the proceedings. See Rule for Military Commissions
103(a)(24)(B) (defining “party” to include “[a]ny trial or
assistant trial counsel representing the United States” in the
military commission). And Commission transcripts reveal that
this Justice Department lawyer’s participation was far from
perfunctory; indeed, he appears to have been the prosecution
team’s second-in-command for at least part of the time. See
AE338H, at 1 (Feb. 22, 2017) (detailing memorandum
designating the Justice Department lawyer as “Trial Counsel”
and two judge advocates as “Managing Assistant Trial
Counsel” and “Assistant Trial Counsel,” respectively).
Second, aside from the particulars of Al-Nashiri’s case,
the Attorney General plays an important institutional role in
military commissions more generally. The Attorney General
appears by name twice in the Military Commissions Act: first
in section 949a, which permits “the Secretary of Defense, in
consultation with the Attorney General” to establish rules for
22
“trials by military commission” that depart from “the
procedures . . . otherwise applicable in general courts-martial”;
and second in section 950h, which allows appellate counsel
appointed by the Secretary of Defense to “represent the United
States” in appeals beyond the CMCR only if “requested to do
so by the Attorney General.” 10 U.S.C. §§ 949a(b)(1),
950h(b)(2). The Regulation for Trial by Military Commission,
too, contemplates that the Attorney General will detail Justice
Department lawyers to commission proceedings with some
regularity. “The Chief Prosecutor shall supervise all trial
counsel,” the Regulation instructs, “including any special trial
counsel of the Department of Justice who may be made
available by the Attorney General of the United States.” U.S.
Department of Defense, Regulation for Trial by Military
Commission § 8-6(a) (2011).
In sum, the Attorney General was a participant in Al-
Nashiri’s case from start to finish: he has consulted on
commission trial procedures, he has loaned out one of his
lawyers, and he will play a role in defending any conviction on
appeal. The challenge Spath faced, then, was to treat the Justice
Department with neutral disinterest in his courtroom while
communicating significant personal interest in his job
application. Any person, judge or not, could be forgiven for
struggling to navigate such a sensitive situation. And that is
precisely why judges are forbidden from even trying. See Scott
v. United States, 559 A.2d 745, 750 (D.C. 1989) (explaining
that a judge’s obligation to avoid seeking employment with a
party appearing before him does not “change simply because
the prospective employer is a component of the Department of
Justice”).
The fact of Spath’s employment application alone would
thus be enough to require his disqualification. But Spath did yet
more to undermine his apparent neutrality.
23
First, in his job application, Spath chose to emphasize his
role as the presiding judge over Al-Nashiri’s commission. He
boasted that he had been “handpicked by the top lawyer of the
Air Force to be the trial judge” on “the military commissions
proceedings for the alleged ‘Cole bombing’ mastermind,”
Reply Attachments B-2, and he even supplied an order from
Al-Nashiri’s case as his writing sample, see id. at B-11. Spath
thus affirmatively called the Justice Department’s attention to
his handling of Al-Nashiri’s case, making his performance as
presiding judge a key point in his argument for employment.
Second, while Spath made sure to tell the Justice
Department about his assignment to Al-Nashiri’s commission,
he was not so forthcoming with Al-Nashiri. At no point in the
two-plus years after submitting his application did Spath
disclose his efforts to secure employment with the Executive
Office for Immigration Review. Indeed, perhaps most
remarkably, less than twenty-four hours after receiving his July
2018 start date, Spath indefinitely abated commission
proceedings, musing on the record that “over the next week or
two” he would decide whether “it might be time . . . to retire.”
Commission Tr. 12374 (Feb. 16, 2018); see also supra at 11–
12. Given this lack of candor, a reasonable observer might
wonder whether the judge had done something worth
concealing. Cf. Rule for Military Commissions 902(e)
(permitting, in some circumstances, “the parties to [a]
proceeding” to waive judicial disqualification but only if the
waiver “is preceded by a full disclosure on the record of the
basis for disqualification”).
It is, of course, entirely possible that Spath’s orders were
the product of his considered and unbiased judgment,
unmotivated by any improper considerations. But that is beside
the point: “[a]ppearance may be all there is, but that is enough.”
Microsoft Corp., 253 F.3d at 115. As the Supreme Court has
24
explained, “[t]he problem . . . is that people who have not
served on the bench are often all too willing to indulge
suspicions and doubts concerning the integrity of judges.”
Liljeberg, 486 U.S. at 864–65. Spath’s job application,
therefore, cast an intolerable cloud of partiality over his
subsequent judicial conduct. Al-Nashiri thus has a clear and
indisputable right to relief.
B.
Because “[m]andamus is a ‘drastic’ remedy, ‘to be
invoked only in extraordinary circumstances,’” Fornaro v.
James, 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting Allied
Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)), it is
available only if “no adequate alternative remedy exists,”
Barnhart v. Devine, 771 F.2d 1515, 1524 (D.C. Cir. 1985).
Therefore, “[g]iven the availability of ordinary appellate
review” after conviction, Al-Nashiri “must identify some
‘irreparable’ injury that will go unredressed if he does not
secure mandamus relief” now. Al-Nashiri I, 791 F.3d at 79
(quoting Banks v. Office of Senate Sergeant-at-Arms &
Doorkeeper of U.S. Senate, 471 F.3d 1341, 1350 (D.C. Cir.
2006)).
Strict as it is, that standard is easily satisfied here. While
“[t]he ordinary route to relief . . . is to appeal from [a] final
judgment,” “[w]hen the relief sought is recusal of a disqualified
judicial officer, . . . the injury suffered by a party required to
complete judicial proceedings overseen by that officer is by its
nature irreparable.” Cobell v. Norton, 334 F.3d 1128, 1139
(D.C. Cir. 2003). After conviction, no amount of appellate
review can remove completely the stain of judicial bias, both
“because it is too difficult to detect all of the ways that bias can
influence a proceeding” and because public “confidence . . . is
irreparably dampened once ‘a case is allowed to proceed before
25
a judge who appears to be tainted.’” Al-Nashiri I, 791 F.3d at
79 (quoting In re School Asbestos Litigation, 977 F.2d 764, 776
(3d Cir. 1992), as amended (Oct. 23, 1992)). The same is true
for proceedings in which the disqualified adjudicator is gone
but his orders remain. If a judge “should have been recused
from the . . . proceedings, then any work produced” by that
judge “must also be ‘recused’—that is, suppressed.” In re
Brooks, 383 F.3d 1036, 1044 (D.C. Cir. 2004).
In addition to Spath’s many oral rulings from the bench,
the government advises us that he “issued approximately 460
written orders” in Al-Nashiri’s case. Opp. to Al-Nashiri 8.
Requiring Al-Nashiri to proceed under the long shadow of all
those orders, even if enforced by a new, impartial military
judge, would inflict an irreparable injury unfixable on direct
review. Al-Nashiri thus has no adequate remedy for Spath’s
conduct other than to scrub Spath’s orders from the case at the
earliest opportunity.
The government, however, proposes another option:
although the CMCR in September 2018 rejected Al-Nashiri’s
request to disqualify Spath and vacate his orders, see Order 2,
United States v. Al-Nashiri, No. 18-002 (CMCR Sept. 28,
2018), we are now told that Al-Nashiri may yet “assert[] his
disqualification claims in the still-pending military
commission,” Opp. to Al-Nashiri 29. True, in a November
2018 order—entered after Al-Nashiri had filed his petition for
mandamus in our court—the CMCR stated that its “disposition
of Al-Nashiri’s prior motion [for disqualification] does not
foreclose him from making a motion before the military
commission seeking the same relief.” Order 3, United States v.
Al-Nashiri, No. 18-002 (CMCR Nov. 2, 2018). But despite the
CMCR’s belated attempt to narrow the effect of its September
2018 denial, the enduring consequences of that appellate
body’s previous rulings—two in particular—would
26
significantly constrain and maybe even bar the new military
judge’s ability to afford Al-Nashiri a complete remedy. First,
the CMCR has “retain[ed] jurisdiction over the issue of Al-
Nashiri’s representation.” Al-Nashiri, slip op. at 38. Although
the import of this statement is not entirely clear, it appears that
any new military judge would lack authority to issue orders
pertaining to Al-Nashiri’s defense team—a subject on which
Spath made many rulings. Second, the CMCR has already
ruled that, at least under the heightened mandamus standard,
“[Al-Nashiri] has not shown that a reasonable and informed
observer would question [Spath’s] impartiality.” Order 2,
United States v. Al-Nashiri, No. 18-002 (CMCR Sept. 28,
2018) (internal quotation marks omitted). The factual findings
and legal conclusions embedded in this statement remain law
of the case. Cf. Al-Nashiri, slip op. at 37 (stating that the
CMCR’s “holdings are . . . the law-of-the-case and the law of
the military commissions even if [the CMCR] did not have
pendent jurisdiction to decide them”).
Accordingly, if Al-Nashiri moved in the military
commission to disqualify Spath, the new military judge would
find himself incapable of vacating all the orders necessary to
purge the proceedings of Spath’s lingering and disqualified
influence. Al-Nashiri has thus demonstrated that his sole means
for adequate relief lies with this mandamus petition.
C.
Last, we consider whether issuance of a writ of mandamus
“is appropriate under the circumstances.” Cheney, 542 U.S. at
381. Because this petition seeks vacatur of judicial decisions,
our discretion is guided by the three Liljeberg factors: “the risk
of injustice to the parties in the particular case, the risk that the
denial of relief will produce injustice in other cases, and the
risk of undermining the public’s confidence in the judicial
27
process.” 486 U.S. at 864. Two features of this case weigh
especially heavily.
To begin with, we cannot forget that the government seeks
to impose the ultimate penalty against Al-Nashiri. Because “the
imposition of death by public authority is . . . profoundly
different from all other penalties,” Lockett v. Ohio, 438 U.S.
586, 605 (1978) (plurality opinion), “the [Supreme] Court has
been particularly sensitive to ensure that every safeguard is
observed,” Gregg v. Georgia, 428 U.S. 153, 187 (1976)
(plurality opinion). In no proceeding is the need for an
impartial judge more acute than one that may end in death.
Moreover, as the Supreme Court explained in Liljeberg,
our “willingness to enforce” disqualification “may prevent a
substantive injustice in some future case by encouraging a
judge or litigant to more carefully examine possible grounds
for disqualification and to promptly disclose them when
discovered.” Liljeberg, 486 U.S. at 868. Although it was Spath
who had the ultimate obligation to recuse himself, the judge
was hardly alone in his lack of diligence. The Justice
Department knew that Spath had applied for an immigration
judge job and that he continued to preside over Al-Nashiri’s
case while awaiting his start date. The prosecution, upon
receiving the defense’s request for discovery into Spath’s
employment negotiations, refused to investigate the matter and
instead accused Al-Nashiri’s team of peddling
“unsubstantiated assertions.” Corrected Al-Nashiri
Attachments, Attachment B, at 1; see also supra at 12–13. On
the very same day the CMCR denied Al-Nashiri’s motion to
compel discovery, citing his failure to “show[] that ‘a
reasonable and informed observer would question [Spath’s]
impartiality,’” Order 2, United States v. Al-Nashiri, No. 18-002
(CMCR Sept. 28, 2018) (quoting Loving Spirit, 392 F.3d at
493), the Justice Department announced Spath’s investiture as
28
an immigration judge, see supra at 13–14. And just a few
months ago, the government informed this court that the
military judge who replaced Spath—the same judge the CMCR
and the government once suggested should hear Al-Nashiri’s
disqualification motion in the first instance to “decide whether
Judge Spath acted inappropriately,” Order 3, United States v.
Al-Nashiri, No. 18-002 (CMCR Nov. 2, 2018)—was herself
engaged in apparently undisclosed employment negotiations
with the Justice Department during the pendency of this very
case, see supra at 15.
Although a principle so basic to our system of laws should
go without saying, we nonetheless feel compelled to restate it
plainly here: criminal justice is a shared responsibility. Yet in
this case, save for Al-Nashiri’s defense counsel, all elements of
the military commission system—from the prosecution team to
the Justice Department to the CMCR to the judge himself—
failed to live up to that responsibility. And we cannot dismiss
Spath’s lapse as a one-time aberration, as Al-Nashiri’s is not
the first meritorious request for recusal that our court has
considered with respect to military commission proceedings.
See In re Mohammad, 866 F.3d at 475–77 (issuing a writ of
mandamus recusing a CMCR judge for expressing an opinion
about the accused’s guilt). That said, we hasten to add that none
of the foregoing requires the Defense Department to change the
way it assigns military judges, or the Justice Department the
way it hires immigration judges, or the CMCR the way it
considers appeals. But this much is clear: whenever and
however military judges are assigned, rehired, and reviewed,
they must always maintain the appearance of impartiality
demanded by Rule for Military Commission 902(a). It would
seem, therefore, that some additional “encourag[ement] . . . to
more carefully examine possible grounds for disqualification,”
Liljeberg, 486 U.S. at 868, would be especially “appropriate
under the circumstances,” Cheney, 542 U.S. at 381.
29
On the other side of the ledger, the government warns that
granting Al-Nashiri’s petition would require relitigation of
commission proceedings, thus costing additional time and
resources. But while the public unquestionably possesses, as
the government argues, an “interest in avoiding unwarranted
delays in the administration of justice,” Opp. to Al-Nashiri 50,
surely the public’s interest in efficient justice is no greater than
its interest in impartial justice. Any institution that wields the
government’s power to deny life and liberty must do so fairly,
as the public’s ultimate objective is not in securing a conviction
but in achieving a just outcome. Given that Al-Nashiri’s case
remains at the pre-trial stage, we are confident that the costs of
granting the writ are not intolerably high, especially when
weighed against the hefty burdens that would be shouldered by
both Al-Nashiri and the public were his military commission to
proceed under a cloud of illegitimacy.
A writ is therefore more than “appropriate under the
circumstances.” Cheney, 542 U.S. at 381. The much harder task
is to fashion its scope. Recognizing the powerful case for
dissolving the current military commission entirely (Al-
Nashiri’s preferred relief), we are ultimately satisfied that a
writ of mandamus directing vacatur of all orders entered by
Spath after November 19, 2015—the date of his application—
will sufficiently scrub the case of judicial bias without
imposing an unnecessarily “draconian remedy.” Liljeberg, 486
U.S. at 862. Additionally, because “ordinary appellate review”
on the merits cannot “detect all of the ways that bias can
influence a proceeding,” Al-Nashiri I, 791 F.3d at 79, we shall
vacate any CMCR orders that reviewed now-vacated Spath
orders, including the CMCR’s October 11, 2018, opinion
affirming Spath’s rulings regarding Al-Nashiri’s defense
counsel.
30
In ordering such relief, we fully recognize the burden the
writ will place on the government, the public, and Al-Nashiri
himself. Despite these costs, however, we cannot permit an
appearance of partiality to infect a system of justice that
requires the most scrupulous conduct from its adjudicators,
“for the appearance of bias demeans the reputation and
integrity not just of one jurist, but of the larger institution of
which he or she is a part.” Williams v. Pennsylvania, 136 S. Ct.
1899, 1909 (2016).
III.
This brings us to Spears and Eliades’s petition. Arguing
that General Baker lawfully excused them from Al-Nashiri’s
defense team on October 11, 2017, the two seek a writ of
mandamus vacating the CMCR’s direction that as “counsel of
record” they remain “obligat[ed] to continue their
representation of Al-Nashiri.” Al-Nashiri, slip op. at 38.
Vacating all Spath’s orders issued after November 19, 2015, as
well as all CMCR decisions reviewing those orders, including
the October 11, 2018, opinion, thus affords Spears and Eliades
all the relief they request.
Spears and Eliades acknowledge that their petition seeks
relief no broader than Al-Nashiri’s, but they nonetheless worry
that negative professional consequences could flow from
Spath’s adverse rulings. See Oral Arg. Tr. 5:6–7:14, In re
Spears, No. 18-1315 (D.C. Cir. Jan. 22, 2019) (discussing the
lingering risk of “serious professional consequences” while
recognizing that affording Al-Nashiri the relief we have
ordered “would give [Spears and Eliades] what [they are]
looking for”). But we cannot imagine that any state bar
association or other professional licensing body—especially
once presented with this opinion—would initiate disciplinary
31
proceedings against lawyers based solely on the orders of a
judge ethically disqualified from issuing them.
Because issuance of a writ in Al-Nashiri’s case will afford
Spears and Eliades “‘all the relief that [they have] sought,’” we
shall dismiss Spears and Eliades’s petition as moot. Schnitzler
v. United States, 761 F.3d 33, 37 (D.C. Cir. 2014) (quoting
Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C.
Cir. 2013)); see also Iron Arrow Honor Society v. Heckler, 464
U.S. 67, 70 (1983) (“Federal courts lack jurisdiction to decide
moot cases because their constitutional authority extends only
to actual cases or controversies.”).
IV.
We do not take lightly the crimes that Al-Nashiri stands
accused of committing. To the contrary, the seriousness of
those alleged offenses and the gravity of the penalty they may
carry make the need for an unimpeachable adjudicator all the
more important. We therefore grant Al-Nashiri’s petition for a
writ of mandamus and vacate all orders issued by Judge Spath
on or after November 19, 2015, and we further vacate all
decisions issued by the CMCR reviewing such orders. We
dismiss Spears and Eliades’s petition for a writ of mandamus
as moot.
So ordered.