In re Al-Nashiri

577 F.Supp.3d 1285

IN RE Abd Al Rahim Hussayn Muhammad AL-NASHIRI

CMCR 21-004

United States Court of Military Commission Review.

December 28, 2021

On briefs for petitioner were Anthony J. Natale ; Captain Brian Mizer, JAGC, U.S. Navy; Lieutenant Commander Alaric Piette, JAGC, U.S. Navy; Annie Morgan; and Katie Carmon.

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

BEFORE THE COURT Burton, Presiding Judge, Key and Stephens, Appellate Judges

PUBLISHED OPINION OF THE COURT

Opinion for the court Key, Judge:

Petitioner is charged with—and facing the death penalty for—multiple offenses relating to the bombings of the USS Cole in 2000 and the M/V Limburg in 2002, attacks which resulted in the deaths of seventeen U.S. servicemembers and one foreign national crewmember. See In re Al-Nashiri (Al-Nashiri II ), 835 F.3d 110, 113–16 (D.C. Cir. 2016) (discussing the alleged offenses and development of the military commission system for adjudicating violations of the law of war).

Petitioner has filed a petition for a writ of mandamus and prohibition asking this court to dismiss without prejudice all the charges against him. Pet'r's Br. (Aug. 16, 2021). He contends the military commission judge's rulings in at least seven orders violated 10 U.S.C. § 949p-4 and Mil. Comm. R. Evid. 505, Manual for Military Commissions, United States (MMC) (2019 ed.).¹ Id. at 1–2, 19 (citing AEs 337E, 399BB, 399CC, 405K,² 435B, 435C, 443B).³ Essentially, petitioner objects to the process the military judge used to assess trial counsel's requests to redact, substitute, and summarize certain classified information contained in documents the government intended to release to petitioner in response to his discovery requests. Respondent urges this court to deny the petition because it does not meet the threshold for granting such extraordinary relief. Resp't's Br. 6 (Sept. 20, 2021) (citing Cheney v. U.S. District Court , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) ; Belize Soc. Dev. Ltd. v. Gov't of Belize , 668 F.3d 724, 729–30 (D.C. Cir. 2012) ). We agree with respondent and deny Al-Nashiri's petition.

I. Appellate background

Petitioner has filed seven petitions for writs of mandamus and/or prohibition with the Court of Appeals for the District of Columbia Circuit (D.C. Circuit), as follows: (1) In re Al-Nashiri , No. 09-1274, 2010 WL 4922649, 2010 U.S. App. LEXIS 24338 (D.C. Cir. Nov. 24, 2010) (per curiam) (unpublished) (prior to swearing or preferral of charges, order granting motion for voluntary dismissal of petition concerning federal agency decision); (2) In re Al-Nashiri , No. 14-5229, 2014 U.S. App. LEXIS 22038 (D.C. Cir. Nov. 18, 2014) (unpublished) (order denying petition for expedited district court decision); (3) In re Al-Nashiri (Al-Nashiri I ), 791 F.3d 71, 75, 86 (D.C. Cir. 2015) (denying petition asserting constitutional challenges require disqualification of United States Court of Military Commission Review (CMCR) judges); (4) In re Al-Nashiri , No. 16-1152, 2016 U.S. App. LEXIS 9947 (D.C. Cir. May 27, 2016) (per curiam) (unpublished) (order denying petition asserting Constitution's Appointments Clause and 10 U.S.C. § 973(b) require disqualification of CMCR military appellate judges);⁴ (5) Al-Nashiri II , 835 F.3d at 117 (denying petition for dissolution of commission that argued "conduct did not take place in the context of hostilities"); (6) In re Al-Nashiri (Al-Nashiri III ), 921 F.3d 224, 240–41 (D.C. Cir. 2019) (granting petition asserting commission judge's search for employment as immigration judge while serving as petitioner's judge required his disqualification); (7) In re Al-Nashiri , No. 21-1208, 2021 U.S. App. LEXIS 32152 (D.C. Cir. Oct. 26, 2021) (per curiam) (order directing filing of lodged petition in matter concerning torture allegations).

Petitioner has filed two petitions for mandamus and prohibition in this court. They are: In re Al-Nashiri , No. 21-001, at *2, *5 (CMCR Sept. 20, 2021) (order vacating commission order on admissibility of coerced admissions in discovery dispute and denying petition as moot), and In re Al-Nashiri , No. 21-004 (CMCR filed Aug. 16, 2021) (the case at bar).

Respondent has filed three government appeals in this court: United States v. Al-Nashiri , 191 F. Supp. 3d 1308, 1328 (CMCR 2016) (reinstating dismissed charges); United States v. Al-Nashiri , 222 F. Supp. 3d 1093, 1105 (CMCR 2016) (reversing decision to exclude evidence); United States v. Al-Nashiri , 374 F. Supp. 3d 1190, 1225 (CMCR 2018) (holding Al-Nashiri's counsel remain his counsel and vacating commission's abatement order), vacated on other grounds , Al-Nashiri III , 921 F.3d at 240.

II. Factual background

A. Military judge's rulings on classified material

Pursuant to petitioner's discovery requests and the military judge's orders, respondent has provided petitioner with approximately 16,000 pages and over 66 megabytes of multimedia files related to alleged intrusions into attorney-client communications between petitioner and his counsel at Guantanamo Bay, Cuba. AE 399BB at 2; Resp't's Opp'n to Stay 13 (Aug. 26, 2021). This discovery was unrelated to petitioner's guilt or innocence; instead, it concerned claims the government monitored meetings between petitioner and his counsel well after his apprehension and subsequent transfer to Guantanamo Bay, Cuba. AE 399KK at 1; Resp't's Opp'n to Stay 6–7; see Al-Nashiri III , 921 F.3d at 228–29 (discussing allegations of government monitoring and possible intrusions at Guantanamo Bay, Cuba).

Prior to providing this discovery to petitioner, the government sought to protect certain classified information from release by invoking Mil. Comm. R. Evid. 505. In pursuit of this effort, trial counsel submitted several ex parte motions to the military judge, which proposed, in general, to redact certain classified information and substitute it with unclassified alphanumeric identifiers or summaries. See, e.g. , AEs 337C, 399W, 435. Two of these motions, AEs 337C and 399W, covered large volumes of discovery. Instead of providing the military judge with the entirety of the discovery in both redacted and unredacted forms, trial counsel elected to provide the military judge with samples or "exemplars"—several hundred pages of documents that trial counsel contended were representative of the larger body of discovery related to these two motions.⁵ AEs 337C, 399W. As a result, the military judge had unmodified copies of the exemplars along with copies of the same documents showing trial counsel's proposed redactions and substitutions.

At the direction of the military judge, two members of the trial judiciary staff (TJ staff)—a senior attorney advisor and an attorney advisor—met with four members of the prosecution on May 27, 2021. AE 399KK at 2. The meeting was not recorded and no verbatim transcript of the meeting was created. See id. at 14. In a later ruling, the military judge said the purpose of the meeting was "to expedite the [Mil. Comm. R. Evid.] 505 review process and to improve the quality and usefulness of the discovery to the Defense by identifying for the Prosecution issues identified by the [TJ staff] during their review of the Government's pleading." AE 435B at 1. The military judge averred that he did not participate in the meeting and no rulings or orders were communicated by the TJ staff during the meeting. Id. ; see also AE 399KK at 2.

After the meeting, the TJ staff and the prosecution exchanged several emails, and the prosecution provided the TJ staff a 34-page document, all of which was sealed and marked as appellate exhibits. AE 399KK at 2. The emails primarily consisted of the TJ staff asking why certain information had been redacted and discussing how to craft more detailed unclassified summaries of the types of information the government sought to withhold from the defense. See AEs 449A, 449B. The 34-page document set out questions asked by the TJ staff at the May 27, 2021, meeting along with the government's response to each question. AE 449C. The questions included in this document asked why certain information was redacted, but also focused on such matters as the legibility of certain pages, the accuracy of included transcriptions, missing labels for the specific authority for some of the redactions and substitutions, and the accuracy of proposed summaries. Id. The military judge stated he did not review the written responses in these emails or the separate 34-page document. AE 399KK at 2. After the meeting, the government modified some of the material previously submitted ex parte to the military judge. See, e.g. , AE 337E at 3 (referencing modification).

Ultimately, the military judge issued several rulings in July 2021, permitting the government to redact certain material, substitute redactions with identifiers, and substitute summaries for certain other classified information before providing the discovery to the defense. See AEs 337E, 399BB, 399CC,⁶ 435B, 435C,⁷ 443B. The military judge's rulings in AEs 337E and 399BB (and its classified addendum at AE 399C)—pertaining to the two motions including exemplars—further authorized the government to make these alterations to the larger body of discovery and then release those documents to the defense without first seeking the military judge's approval of each modified document. AE 337E at 6; AE 399B at 6. Both rulings explained not only the exemplar method employed by the military judge, but also discussed the May 27, 2021, meeting. Notably, the military judge included this direction in one of the rulings:

Should the Defense, during their review of intrusion-related discovery, identify substitutions and/or redactions that do not appear to comport with the process approved in this ruling or that appear to go beyond the two categories of classified information addressed by this ruling,

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