Military Commissions

Summary: D.C. Circuit Vacates Military Judge’s Rulings in Al-Nashiri

By Sarah Grant
Tuesday, April 16, 2019, 5:06 PM

On April 16, the Court of Appeals for the D.C. Circuit granted Guantanamo detainee and alleged USS Cole bomber Abd al-Rahim Hussein Muhammed al-Nashiri’s petition for a writ of mandamus and vacated all orders issued by former military judge Col. Vance Spath during a 28-month period on account of Spath’s failure to disqualify himself due to an apparent conflict of interest. The court also vacated all decisions issued by the Court of Military Commission Review (CMCR) reviewing Spath’s orders. The decision wipes out over two years’ worth of rulings in pretrial proceedings. Jacques Singer-Emery summarized the oral argument before the D.C. Circuit here, and prior Lawfare coverage of the case can be found here and here.

Col. Spath began presiding over the al-Nashiri’s military commission proceedings in July 2014. In November 2015, he began seeking a post-military retirement position with the U.S. Department of Justice as an immigration judge. He did not disclose his pursuit of employment with the Justice Department to the defense in al-Nashiri. At the same time that he was negotiating his future employment with the Justice Department, Spath clashed with al-Nashiri’s defense attorneys over their refusal to participate in proceedings following notice of a potential breach of attorney-client confidentiality. Al-Nashiri’s three civilian attorneys, Richard Kammen, Rosa Eliades and Mary Spears, withdrew from the case. Notably, this left al-Nashiri without a learned counsel with prior experience in capital cases, something that was generally required as al-Nashiri was facing the death penalty. Lt. Alaric Piette, al-Nashiri’s sole military counsel—who did not have prior experience with capital cases—remained as assigned counsel and attended the military commission sessions but avoided active participation where possible. This dispute ultimately resulted in Brig. Gen. John Baker, the head of the Military Commissions Defense Office, being held in contempt by Spath for refusing to order the civilian defense attorneys to return to the case. Spath ultimately put the commission into an indefinite abatement in February 2018 and shortly thereafter announced his retirement. The day before abating proceedings, Spath learned that he could start work as an immigration judge in July 2018. At no time did he inform the defense team of his future career plans.

While the commission was in abatement, the defense became aware, as a result of a FOIA request filed by reporter Carol Rosenberg, that Spath was set to become an immigration judge and sought discovery from the government on the subject. The government refused to comply with the request and asserted the defense had no basis for the claim that Spath had secured employment with the Justice Department. The government appealed the abatement to the CMCR and in October 2018 the CMCR vacated the abatement order and directed the commission to resume proceedings, this time with a new judge, Air Force Col. Shelly Schools. (The defense later learned that Schools was also seeking postretirement employment as an immigration judge.) The CMCR affirmed Spath’s ruling that there was not good cause for the withdrawal of al-Nashiri’s civilian defense counsel, and in a subsequent decision declined to rule on al-Nashiri’s petition to retroactively disqualify Spath and vacate his rulings on conflict of interest grounds.

Al-Nashiri petitioned the D.C. Circuit for a writ of mandamus vacating commission orders issued by Spath. Two of his former attorneys, Spears and Eliades, also sought a writ of mandamus vacating commission orders refusing to recognize their withdrawal.

The unanimous three-judge D.C. Circuit panel first determined that it had jurisdiction, pursuant to the All Writs Act, to consider the mandamus petitions in order to protect the integrity of the judicial process. The court then spoke at length about the requirement that a judge not only actually be independent, but also be seen as independent. Considering the factual record before it about Spath’s conduct and relying on statutory guidelines regarding judicial disqualification, “judicial codes of conduct, precedent, and [the court’s] own judgment as ethics-bound jurists to guide [it], [the court] conclude[d] that, based on the totality of the circumstances, Judge Spath’s conduct falls squarely on the impermissible side of the line.” The court determined that there was “an intolerable appearance of partiality” as a result of Spath’s pursuit of employment as an immigration judge with the Justice Department, on account of the fact that “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 court continued: “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.”

Even if “Spath’s orders were the product of his considered and unbiased judgment, unmotivated by any improper considerations,” Spath’s pursuit of employment with the Justice Department and choice not to disclose that with the defense “cast an intolerable cloud of partiality over his subsequent judicial conduct.” Consequently, the court held, “Al-Nashiri ... has a clear and indisputable right to relief.”

The court then turned to the appropriate remedy: “In addition to Spath’s many oral rulings from the bench … he issued approximately 460 written orders in Al-Nashiri’s case. 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.” (Internal quotation marks and citations omitted.)

In addition, because the CMCR had upheld a number of Spath’s rulings and rejected al-Nashiri’s assertions that Spath had acted inappropriately, the D.C. Circuit found it necessary to vacate the CMCR’s decisions on the subject. The court recognized “the powerful case for dissolving the current military commission entirely (Al-Nashiri’s preferred relief)” but declined to go so far and instead limited relief to vacatur of all orders issued from November 19, 2015, onward.

The court dismissed as moot Spears’s and Eliades’s separate petition for mandamus, concluding that the ruling on al-Nashiri’s petition afforded the two attorneys “all the relief they request.”

Cataloguing the various errant decisions by Spath, the CMCR and other government actors, the court wrote: “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.”

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Barring further appeal, the D.C. Circuit’s ruling paves the way for proceedings in al-Nashiri’s case to resume. Army Col. Lanny Acosta has been assigned as the new military judge.