Terrorism Trials & Investigations

Dwight Sullivan on Dan Mori's Win in District Court

By Benjamin Wittes
Sunday, January 20, 2013, 8:35 AM

A very interesting post from Dwight Sullivan over at the CAAFlog about a litigation of which I was previously unaware:

 . . . McClatchy’s Michael Doyle brings us word that today, Judge Leon of the United States District Court for the District of Colubmia ruled for LtCol [Michael] Mori in his quest to win a new promotion board.  That decision is available here.  Mori v. Dep’t of the Navy, No. 07-2167 (D.D.C. Jan. 18, 2013).  Judge Leon concluded that the Department of the Navy’s refusal to give him a special selection board was “arbitrary and capricious.”  He remanded the case to SECNAV to convene a special selection board.

LtCol Mori’s request for a special selection board was based on the possibility that his zealous work as a military commission defense counsel in the Hicks case improperly prejudiced a previous selection board against him.  Judge Leon found that SECNAV’s rejection of LtCol Mori’s challenge to the SSB was fatally flawed.

Judge Leon explained that SECNAV’s “decision to deny plaintiff’s SSB request cannot withstand scrutiny for two reasons.  First, the decision simply fails to address certain elements of plaintiff’s evidence.  Second, the Secretary improplery dismisses certain examples of plaintiff’s circumstantial evidence without explanation.”  Regarding the first basis, Judge Leon observed that an “agency action that lacks explanation is a textbook example of arbitrary and capricious action.”  While SECNAV need not address every aspect of a special selection board request “at length and in detail, . . . he must provide enough information to ensure the Court that he properly considered the relevant evidence underlying plaintiff’s request.   . . .  By providing no information whatsoever as to relevant evidence supporting plaintiff’s request, the Court cannot reasonably discern the Secretary’s decision-making process.”

Oh, and by the way, I have added the CAAFlog to the Lawfare News Feed.