In re Ali

558 F.Supp.3d 1167

IN RE Ali ABDUL-AZIZ ALI also known as Ammar al Baluchi¹ and Walid Muhammad Salih Mubarak Bin ‘Attash

CMCR 21-002

United States Court of Military Commission Review.

September 7, 2021

James G. Connell III, Alka Pradhan, Benjamin R. Farley, and Lieutenant Commander Leah A. O'Brien, U.S. Navy, on briefs and/or motions for Petitioner Ali Abdul-Aziz Ali.

Cheryl T. Bormann, Edwin A. Perry, William R. Montross Jr., Major Jay S. Peer, U.S. Air Force, and Anisha P. Gupta, on briefs and/or motions for Petitioner Walid Muhammad Salih Mubarak Bin ‘Attash.

Brigadier General Mark S. Martins, U.S. Army, Michael J. O'Sullivan, Haridimos V. Thravalos, and Major Jackson T. Hall, U.S. Air Force, on briefs and/or motions for respondent.

BEFORE THE COURT Posch, Lewis, and Schenck, Judges

PUBLISHED OPINION OF THE COURT

Opinion for the court Schenck, Judge:

Petitioners Ali Abdul-Aziz Ali, also known as Ammar al Baluchi, and Walid Muhammad Salih Mubarak Bin ‘Attash are two of five accused being tried by military commission at Guantanamo Bay, Cuba. The other three accused are Khalid Shaikh Mohammad, Ramzi Bin al Shibh, and Mustafa Ahmed Adam al Hawsawi, and they have not joined in the petition for writ of mandamus before us. All five accused face capital charges for multiple violations of the law of war, pursuant to the Military Commissions Act of 2009, 10 U.S.C. §§ 948a – 950t, for their alleged roles in the planning and execution of the attacks on September 11, 2001.

In requesting a writ of mandamus, petitioners urge this court to (i) "invalidate" the November 16, 2020, memorandum of Deputy Secretary of Defense (Deputy SECDEF) David L. Norquist pertaining to the qualifications for detailing judges to military commissions; (ii) vacate the "judicial acts" of Chief Trial Judge (CTJ) Douglas K. Watkins after he re-detailed himself to petitioners’ case on December 14, 2020; (iii) disqualify from further participation in their case any person who helped generate Deputy SECDEF Norquist's November 16, 2020, memorandum; and (iv) "require an untainted [CTJ] to detail an untainted trial judge" to petitioners’ case. Pet'rs’ Br. 5, 18 (June 25, 2021). Respondent opposes petitioners’ remedial requests.

We agree with respondent that the extraordinary remedy of mandamus is not warranted in this case, except to vacate the decisions of Judge Matthew N. McCall. The decisions issued by Judge McCall while he had less than two years of judicial experience are vacated because he was not qualified to sit as petitioners’ trial judge in their military commission. Judge McCall lacked the requisite level of judicial experience. Deputy SECDEF Norquist did not act improperly, and he did not unlawfully influence CTJ Watkins’ decisions or petitioners’ trial judge.

I. APPELLATE BACKGROUND

Petitioners, their co-accused, or other interested parties, have filed ten petitions for writs of mandamus or writs of mandamus and prohibition with this court over the previous thirteen years: (1) Ali v. United States , No. 21-002 (CMCR June 25, 2021) (case at bar); (2) Ali v. United States , 398 F. Supp. 3d 1200, 1212, 1232 (CMCR 2019) (granting mandamus petition for vacatur of closure order and remanding for determination of need to close hearing for "all testimony"); (3) Mohammad v. United States , 393 F. Supp. 3d 1101, 1103, 1109 (CMCR 2019) (denying mandamus petition regarding sufficiency of military judge's inquiry into defense counsel's possible conflicts of interest); (4) United States v. Mohammad , 391 F. Supp. 3d 1066, 1068 & n.1, 1071 (CMCR 2019) (denying mandamus petitions filed in United States Court of Military Commission Review (CMCR) Case Nos. 18-003, 18-004, and 19-002 to recuse all CMCR judges because of Department of Defense Standards of Conduct ethics opinion); (5) Hawsawi v. United States , 389 F. Supp. 3d 1001, 1003, 1009, 1014 (CMCR 2019) (denying two mandamus petitions for recusal of military commission Judge Keith A. Parrella for alleged actual or apparent bias, or both), mandamus denied , In re Hawsawi , 955 F.3d 152, 154, 156, 162 (D.C. Cir. 2020) ;² (6) al Baluchi v. United States , No. 18-003, slip op. at 1, 15 (CMCR June 18, 2019) (order denying mandamus petition for stay of black site decommissioning), mandamus denied , In re Baluchi , 952 F.3d 363, 372 (D.C. Cir. 2020) ; (7) Al Baluchi v. United States , No. 18-001 (CMCR Feb. 7, 2019) (order denying as moot mandamus petition to require acceptance of documents by military commission); (8) ACLU v. United States , No. 13-003, slip op. at 1–2 (CMCR Mar. 27, 2013) (per curiam) (order denying mandamus petition for access to commission proceedings under public's First Amendment right); (9) Miami Herald v. United States , No. 13-002, slip op. at 1–2 (CMCR Mar. 27, 2013) (per curiam) (order denying mandamus petition for access to commission proceedings and sealed classified documents); (10) Mohammad v. United States , No. 08-002 (CMCR June 3, 2008) (order denying mandamus petition to bar arraignment).

Respondent filed one interlocutory appeal, and this court reversed the military commission judge's decision to dismiss two charges. United States v. Mohammad , 280 F. Supp. 3d 1305, 1330 (CMCR 2017), vacated, In re Mohammad , 866 F.3d 473, 477 (D.C. Cir. 2017) (per curiam). During that litigation, petitioner unsuccessfully moved to disqualify military CMCR judges for violation of 10 U.S.C. § 973(b), the Constitution's Commander-in-Chief Clause, and bias. See United States v. Mohammad , No. 17-002, slip op. at 10 (CMCR June 21, 2017), mandamus denied , In re Mohammad , No. 17-1179, 2018 U.S. App. LEXIS 29671, at *2 (D.C. Cir. Oct. 19, 2018) (per curiam) (unpublished order). A new panel of this court reinstated the two charges. United States v. Mohammad , 398 F. Supp. 3d 1233, 1258 (CMCR 2019).³

II. FACTS

On October 16, 2020, CTJ Watkins detailed Judge McCall as the military judge in petitioners’ case. App. 585.⁴ Judge McCall was assigned as a trial judge for general courts-martial in July 2019. App. 139–40. The parties agree that Judge McCall did not possess the minimum two years of trial experience specified in Regulation for Trial by Military Commission (RTMC), ¶ 6-3.d (2011 ed.), as a qualification requirement. Resp't Br. 4 (July 19, 2021). On October 20, 2020, Petitioner Ali moved for abatement of the military commission "until a judge qualified under [RTMC] 6-3 is available." App. 169.

On October 26, 2020, the CTJ wrote the SECDEF urging him to clarify that the CTJ's authority at RTMC ¶ 1-3.b "inherently" includes waiver authority of the two-year experience requirement in RTMC ¶ 6-3.d. App. 126.⁵ The CTJ gave the following reasons for his request:

A recent notice in a pending case raised an ambiguity concerning the Chief Trial Judge's authority under R.T.M.C. 1-3.b. to waive the regulatory 2-year military judge experience requirement of R.T.M.C. 6-3.d. The ambiguity stems from a lack of specificity in the R.T.M.C. and not a conflict with any provision in the Military Commissions Act of 2009 or the Rules for Military Commissions.

Inherent in the authority to supervise and administer the Military Commissions Trial Judiciary must be the authority to waive the 2-year experience requirement when a military judge is otherwise qualified and certified under the statute. Reading the regulation otherwise would frustrate the delegated authority of the Chief Trial Judge, and undermine the independence of the trial judiciary by potentially placing the Secretary of Defense, or his designee, in an active role in the nomination of judges into the pool of military commissions judges and the detailing of judges to Military Commission cases.

To resolve the ambiguity in the R.T.M.C., and solidify the independence of the Military Commission Trial Judiciary, the Secretary should clarify that the Chief Judge's authority under R.T.M.C. 1-3.b. includes waiver authority of the 2-year experience requirement in R.T.M.C. 6-3.d.

App. 125–26.

Department of Defense (DoD) General Counsel Paul C. Ney Jr. recommended denial of the CTJ's request. App. 133. On November 16, 2020, the Deputy SECDEF⁶ responded to the CTJ's request as follows:

Upon review of the authorities, waiver of the RTMC requirements does not rest with you or members of the trial judiciary. DoD declines to issue the clarification you seek.

Further, the two-year experience requirement is a reasonable and necessary requirement to best protect the interests of the accused and the Government in administering military commissions.

App. 164. The Deputy SECDEF did not mention Judge McCall, direct the CTJ to remove Judge McCall, or designate a replacement for Judge McCall. See id. On December 8, 2020, respondent filed a motion with the military commission asking that Judge McCall recuse himself because he "lacks two years of judicial experience, a requirement of R.T.M.C. 6-3.d,"⁷ and his failure to recuse "would create legal uncertainty for the remainder of the trial and any subsequent appellate litigation." App. 136–37.

Judge McCall did not recuse or disqualify himself from petitioners’ case. See Manual for Military Commission (MMC), Rule for Military Commissions (R.M.C.) 902(d)(1) (stating "[t]he military judge shall, upon motion of any party or sua sponte, decide whether the military judge is disqualified"). The CTJ, however, replaced Judge McCall on December 14, 2020, when he detailed himself as trial judge for petitioners’ military commission. App. 122–23, 472. The CTJ reviewed his own detailing order after he received certifications from the service Judge Advocates General that all certified judicial nominees met RTMC qualifications. See App. 122. On December 15, 2020, the CTJ denied as moot petitioners’ motion to abate and respondent's motion to recuse. App. 472–73.

On December 18, 2020, and January 19, 2021, Khalid Shaikh Mohammad, a co-accused of petitioners, challenged the CTJ's "unwarranted removal of a fully qualified military judge from Mr. Mohammad's case." App....