Ali v. United States

398 F.Supp.3d 1200

Ali ABDUL-AZIZ ALI, a/k/a Ammar Al Baluchi, Petitioner

v.UNITED STATES, Respondent

CMCR 19-002

United States Court of Military Commission Review.

June 28, 2019

On brief for petitioner were Alka Pradhan; Lieutenant Colonel Sterling R. Thomas, U.S. Air Force; Benjamin R. Farley; Captain Mark E. Andreu, U.S. Air Force; and James G. Connell III.

On brief for respondent were Brigadier General Mark S. Martins, U.S. Army; Michael J. O'Sullivan, San Antonio; and Haridimos V. Thravalos.

On brief for amici curiae of twelve press organizations were David A. Schulz and Maxwell S. Mishkin.

On brief for amicus curiae of the American Civil Liberties Union were Brett Max Kaufman and Hina Shamsi.

BEFORE THE COURT POLLARD, PRESIDING JUDGE; HUTCHISON AND FULTON, JUDGES

PUBLISHED OPINION OF THE COURT

Opinion for the Court Pollard, Presiding Judge:

Petitioner Ali Abdul-Aziz Ali, also known as Ammar Al Baluchi, is one of five defendants in a case pending before a military commission held at Naval Station Guantanamo Bay (NSGB), Cuba.¹ Each defendant, or accused, is charged with crimes, including capital crimes, for his alleged involvement in the September 11, 2001, attack on the United States. On March 14, 2019, petitioner asked this Court to issue a writ of mandamus directing the military judge presiding over his commission case to hold a public hearing in a pre-trial matter involving the unclassified testimony of a witness known as the "Interpreter."

I. Jurisdiction

We have mandamus jurisdiction to review this case pursuant to the All Writs Act, 28 U.S.C. § 1651(a), because review in this instance is in aid of our appellate jurisdiction under 10 U.S.C. § 950f(c). See In re Al-Nashiri , 791 F.3d 71, 75 (D.C. Cir. 2015).

II. Back ground

A. Statement of the case

The witness previously was the interpreter for defendant Ramzi Bin al Shibh. See AE 350RRR at 1. The witness also worked for other defense teams, including petitioner's team. See id. at 4, 10. As such, the Interpreter was privy to privileged and work product information that belongs to the defendants and their attorneys. The purpose of the hearing at issue is to allow the defense to explore whether the Interpreter was a government "asset" placed in the defense community and whether the Interpreter compromised privileged and work product information belonging to petitioner, the other defendants and/or their defense teams. See id. at 9-11.

The government unequivocally denies that it had anything to do with the Interpreter working for the defense or that it was involved in any compromise of the defense's protected information. AE 350RRR at 1, 4-5; Resp't Br. 16 (Mar. 21, 2019). It also opposes petitioner's request that the Interpreter's unclassified testimony be taken in an open hearing. It argues a closed session is necessary to prevent the inadvertent disclosure of classified information and to protect the Interpreter and his or her identity, which is classified. See Resp't Br. 5, 13, 16-17, 19. The government also contends that there are no conditions that would allow public testimony without jeopardizing the classified information at issue that it seeks to protect.

Petitioner agrees that a closed session is appropriate to the extent that the Interpreter's testimony would elicit classified information. Pet'r Br. 8-9 (Mar. 14, 2019). He argues, however, that "the entirety of the Interpreter's expected testimony" will not involve classified information, id. at 8-9, 13, and that taking the unclassified testimony in a closed hearing violates his right to a public trial, id. at 2, 8-11. He further argues that there are steps short of barring all public testimony that would adequately protect the Interpreter's safety and his or her classified identity. Id. at 10.

The military judge ruled that the government had satisfied its burden to justify closure, as set forth in 10 U.S.C. § 949d(c) and the Manual for Military Commissions (M.M.C.), Rule for Military Commissions (R.M.C.) 806 (b)(2). See AE 616J at 2-3. He entered a decision and order, AE 616J, (Closure Order) directing that the Interpreter's testimony, both classified and unclassified, be taken in a closed session, followed by the release within ten days of the hearing of a transcript that has only unclassified testimony, as determined by the government. Id. at 4.

Petitioner's mandamus petition challenges the Closure Order as violating his Sixth Amendment right to a public trial. Pet'r Br. 2, 5-6, 8-11. Twelve press organizations and the American Civil Liberties Union filed amici briefs arguing that the Closure Order violates their qualified First Amendment right to contemporaneous access to the Interpreter's unclassified testimony. Press Br. 7-8 (Mar. 21, 2019); ACLU Br. 4-6 (Mar. 21, 2019); see ABC, Inc. v. Stewart , 360 F.3d 90, 99 (2d Cir. 2004) ("The ability to see and to hear a proceeding as it unfolds is a vital component of the First Amendment right of access ...."). The amici, however, did not seek to intervene below or in this Court in an attempt to vindicate their own rights.²

B. Legal standards

We may issue a writ of mandamus only if three criteria are satisfied: Petitioner "must have no other adequate means to attain the relief he desires ... his right to issuance of the writ is clear and indisputable ... [and] the writ is appropriate under the circumstances." Al-Nashiri , 791 F.3d at 78 (quoting Cheney v. U.S. District Court for D.C. , 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) ).

Further, in applicable circumstances, "a clear abuse of discretion will justify the invocation of this extraordinary remedy." Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (citations omitted); Schlagenhauf v. Holder , 379 U.S. 104, 110, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (same); see also In re Thornburgh , 869 F.2d 1503, 1506-07 (D.C. Cir. 1989) (stating a "writ may issue only to correct those exceptional circumstances where there has been a clear abuse of discretion ..." (internal quotation marks and citation omitted)). Our Superior Court tells us that "[a]n abuse of discretion occurs when the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact." Lockheed Martin Corp. v. United States , 833 F.3d 225, 234-35 (D.C. Cir. 2016) (citation omitted); see also Pigford v. Johanns , 416 F.3d 12, 23 (D.C. Cir. 2005) ("While our review is deferential, an abuse of discretion occurs when the district court relies on clearly erroneous findings of fact, fails to consider a relevant factor, or applies the wrong legal standard.").

Whether we may issue a writ of mandamus in this case first requires us to (a) examine the merits of petitioner's public trial claim and (b) determine whether other adequate means are available to petitioner to attain the relief he seeks. If petitioner's claim crosses both threshold issues, we then must address whether issuing the writ is appropriate.

In summary, our analysis begins by determining what right, if any, an accused in a military commission case has to a public trial. If he has such a right, we must decide whether it extends to the pre-trial hearing at issue and requires the taking of the Interpreter's unclassified testimony in a public session. Any right that the accused may have is a qualified right. It must give way if the government demonstrates that there is a greater good served by closure. If a closure order is entered, it must be both narrow and supported by findings of fact justifying it, sufficient for a reviewing court to assess the correctness of the order. See Waller v. Georgia , 467 U.S. 39, 45, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (citing Press-Enter. Co. v. Superior Court , 464 U.S. 501, 510 (1984) (Press-Enter. I )).

C. Conclusion summary

With respect to petitioner's rights, we hold that he has a qualified right to a public trial pursuant to 10 U.S.C. § 949d and the Manual for Military Commissions (2019 ed.), R.M.C. § 806, and that this right extends to the hearing at issue. We recognize that the government has put forth two compelling reasons that might require the taking of some or all unclassified testimony in a closed session and later releasing a transcript of the Interpreter's testimony to the extent the government determines it is not classified. Those reasons are the protection of classified information, which includes the Interpreter's identity, and the Interpreter's safety, see AE 616J at 1, Resp't Br. 19. However, the commission's current findings are insufficient to demonstrate the need for the Closure Order as entered. From the order and commission record, we also cannot determine whether the Closure Order is as narrow as the law demands and whether there are no alternatives that would lessen a need to take all testimony in a closed session. See Waller , 467 U.S. at 45, 48, 104 S.Ct. 2210 ; Press-Enter. I , 464 U.S. at 510, 104 S.Ct. 819 ; United States v. Criden , 675 F.2d 550, 560 (3d Cir. 1982).

We further hold that petitioner has no other adequate means to obtain the relief that he seeks. As we will explain further, maintaining the public's confidence in the integrity of the prosecution is one of the most vital values that underlies the right to a public criminal trial. See Press-Enter. I , 464 U.S. at 508, 104 S.Ct. 819 (citing Richmond Newspapers v. Virginia , 448 U.S. 555, 569-71, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) ); Criden , 675 F.2d at 556. Closed testimony that should be taken in an open session undermines public confidence. A closure order that permits testimony in a closed hearing without adequate justification similarly impairs public confidence. Assuming that there is a post-trial appeal, it will be years before petitioner has an opportunity to seek vindication of the right he now asserts, that is, the right to take in an open session unclassified testimony that seeks to determine if there was government misconduct. During the resulting inevitable years' long...