Al-Iraqi v. United States

455 F.Supp.3d 1273

Abd al Hadi AL-IRAQI also Known as Nashwan al-Tamir, Petitioner

v.UNITED STATES, Respondent

CMCR 19-004

United States Court of Military Commission Review.

April 21, 2020

On briefs for petitioner were Meghan S. Skelton ; Susan A. Hensler; Lieutenant Commander Jacob Meusch, JAGC, U.S. Navy; Lieutenant Charles D. Ball, JAGC, U.S. Navy; Lieutenant Mishael Danielson, JAGC, U.S. Navy; and Major Morgan Noel Engling, JAGC, U.S. Air Force.

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

BEFORE THE COURT Silliman, Deputy Chief Judge; Posch; and Aldykiewicz, Judges

PUBLISHED OPINION OF THE COURT

Opinion for the Court Posch, Judge:

TABLE OF CONTENTS

I. Statement of the case...––––

II. Statement of facts...––––

A. Background...––––

B. Judge Waits...––––

1. Judge Waits and the immigration judge positions at the Department of Justice...––––

2. Judge Waits and the Navy civilian job...––––

3. Ethical considerations...––––

C. Judge Libretto...––––

D. LC Blackwood...––––

1. LC Blackwood and the U.S. Attorney's Office for the Western District of Missouri...––––

a. Application...––––

b. Interview...––––

c. Offer, acceptance, and notification to judge...––––

d. Duties after acceptance of job offer...––––

2. LC Blackwood and other job applications...––––

3. Ethical considerations...––––

E. AE 160K disqualification motion (Sept. 19, 2019)...––––

1. LC Blackwood and the Western District of Missouri job...––––

2. LC Blackwood and the Navy civilian job application...––––

F. AE 158R dismissal motion (Oct. 4, 2019)...––––

1. Judge Waits and the Department of Justice immigration judge applications...––––

2. Judge Waits and the Navy civilian job...––––

3. Judge Rubin and LC Blackwood...––––

4. Remedies...––––

III. Jurisdiction...––––

IV. Standard of review...––––

V. Arguments...––––

A. Petitioner's arguments...––––

B. Respondent's arguments...––––

C. Reply...––––

VI. Discussion...––––

A. Writ of mandamus...––––

B. Judge Waits’ application for immigration judge positions was disqualifying...––––

1. No clear and indisputable right to writ of mandamus...––––

2. Another means to attain desired relief is adequate...––––

a. Law of the case does not apply...––––

b. Invisible impact argument is speculative...––––

c. Cascading impact argument is forfeited...––––

d. Two issues regarding Mil. Comm. R. Evid. 505...––––

(i) Background...––––

(ii) Judge's sua sponte authority to reconsider Mil. Comm. R. Evid. 505 rulings...––––

(iii) LC Blackwood and the Mil. Comm. R. Evid. 505 process...––––

3. Writ is not appropriate under the circumstances...––––

C. Judges Libretto and Rubin were not disqualified because of LC Blackwood's job search...––––

1. Applicable ethical provisions (and LC Blackwood's notice to judge—should v. must)...––––

a. Ethical provisions concerning LC Blackwood's job search...––––

b. Judicial Conference's Code of Conduct for Judicial Employees (Employee Conduct Code) applies...––––

c. ABA Model Rule of Professional Conduct 1.12(b) does not apply...––––

d. LC Blackwood's notice to judge—should v. must...––––

2. No clear and indisputable right to writ of mandamus...––––

a. LC Blackwood's job search for a position with U.S. Attorney's Offices (USAOs) did not create an appearance of impropriety...––––

b. Judge Libretto was not required to exclude LC Blackwood...––––

c. Even if LC Blackwood should have been excluded...–––– d. LC Blackwood's applications to Department of Defense components and agencies did not require his exclusion...––––

D. Judge Libretto was not required to recuse himself after LC Blackwood's acceptance of a job offer, nor was Judge Rubin's recusal required...––––

1. No clear and indisputable right to writ of mandamus as to Judge Libretto...––––

2. No clear and indisputable right to writ of mandamus as to Judge Rubin...––––

VII. Conclusion...––––

Petitioner Abd al Hadi al-Iraqi, also known as Nashwan al-Tamir, is being tried at Naval Station Guantanamo Bay, Cuba, on charges for alleged war crimes committed over a ten-year period through October 2006. The allegations include conspiracy with Usama bin Laden, also known as Osama bin Laden, and others, which resulted in deaths in Afghanistan of eight American servicemembers, two U.S. persons, coalition servicemembers, and numerous civilians.

At its core, this case concerns allegations of an appearance of partiality in the three judges who presided over petitioner's case. The three judges are Captain John K. Waits, U.S. Navy; Colonel Peter S. Rubin, U.S. Marine Corps; and Lieutenant Colonel Michael D. Libretto, U.S. Marine Corps. It is contended that the appearance of partiality stems from the job search activities of both the first judge (Judge Waits) and Law Clerk Matthew Blackwood (LC Blackwood),¹ who served all three judges. The three main issues before us are (i) whether Judge Waits’ application for an immigration judge position was disqualifying, (ii) whether Judges Libretto and Rubin were disqualified because of LC Blackwood's job search, and (iii) whether Judges Libretto and Rubin were required to recuse themselves.

Petitioner filed with our Court a Petition for Writ of Mandamus and Prohibition and Application for Stay of Proceedings, pursuant to the All Writs Act, 28 U.S.C. § 1651(a) ; the 2009 Military Commissions Act, 10 U.S.C. § 950f ; and Rule 22 of this Court's Rules of Practice (2016). Pet'r Br. 1 (Sept. 13, 2019). He alleges "irreparable injury," id. at 2, 19-21, 44-46, from a taint originating after the first thirty-three minutes of proceedings, id. at 6, 8, 46. He contends that the taint springs from then-Presiding Judge Waits’ search for employment as an immigration judge and acceptance of an offer for a U.S. Navy civilian job and from LC Blackwood's employment search and acceptance of a job offer from the United States Attorney's Office (USAO) for the Western District of Missouri. See id. at 2-3. Relying on In re Al-Nashiri , 921 F.3d 224 (D.C. Cir. 2019), petitioner argues that the judge's and the law clerk's searches for employment resulted in an appearance of partiality causing a taint over his proceeding, thus requiring vacatur of the convening orders, Pet'r Br. 6; Reply 19 (Oct. 23, 2019), and dismissal of charges, Pet'r Br. 41. Respondent argues that we should deny the mandamus petition, remand for implementation of the remedy at AE 158R, and decline to order vacatur of the convening orders and dismissal of charges. Resp't Br. 18 (Oct. 8, 2019).

After reviewing the parties’ briefs and military judge rulings, we deny the petition for a mandamus writ and remand the case to the military commission for action not inconsistent with this opinion.

I. Statement of the case

On June 2, 2014, the convening authority referred the charges and specifications sworn against petitioner to a non-capital military commission. Charge Sheet at Block VI. The sworn charges and specifications are as follows: (I) denying quarter (one specification), 10 U.S.C. § 950t(6) ; (II) attacking protected property (one specification), 10 U.S.C. 950t(4) ; (III) using treachery or perfidy (three specifications), 10 U.S.C. § 950t(17) ; (IV) attempted use of treachery or perfidy (one specification), 10 U.S.C. § 950t(28) ; and (V) conspiracy with Usama bin Laden, Ayman al Zawahiri, Mohammed Atef, Khalid Shaikh Mohammad, and other individuals to commit: terrorism; denying quarter; using treachery or perfidy; murder of protected persons; attacking protected property, civilians, and civilian objects; and employing poison or similar weapons to force the United States, its allies, and non-Muslims out of the Arabian Peninsula, Afghanistan, and Iraq (one specification), 10 U.S.C. § 950t(29). Id. at Block II, Contin. Sheet at 8-12. The charge sheet includes sixty-three paragraphs of common allegations in support of charges (II) through (V). Id. at Block II, Contin. Sheet 1-7. Judge Waits arraigned petitioner on June 18, 2014; petitioner reserved entry of his plea. Tr. 16-19.

On September 13, 2019, Al-Hadi (i) petitioned our Court for a writ of mandamus and prohibition and (ii) applied for a stay of proceedings. Pet'r Br. 1-2. The main point in the brief was that relief was warranted because continued litigation "overseen by a judicial officer that should have recused himself, and ... based on orders issued by judges who should have been disqualified, creates an irreparable injury."² Id. On October 8, 2019, respondent filed its brief in opposition arguing, in general, that (i) petitioner has not met the requirements for a writ of mandamus, (ii) Appellate Exhibit (AE) 160K (a recusal motion) was appropriately decided, and if not, that we remand with instructions for detail of a new judge, (iii) the reconsideration remedy at AE 158R be implemented by the commission, and (iv) we find vacatur or dismissal to be inappropriate relief. See Resp't Br. 18-19. On October 23, 2019, petitioner filed his reply maintaining his contentions.

On October 3, 2019, we granted a limited stay on petitioner's application,³ Order (CMCR Oct. 3, 2019), and subsequently denied reconsideration, Order (CMCR Oct. 7, 2019).

When he filed his writ, pending before the military commission were three motions for dismissal (AEs 157, 158, 160) and a defense motion to compel discovery (AE 155). On September 19, 2019, Judge Libretto denied AE 160, a defense motion for disqualification and vacatur of all orders by Judge Libretto based on allegations that Judge Libretto's impartiality "could reasonably be questioned." AE 160K at 22. On October 1, 2019, he denied AE 157, a motion to dismiss alleging that the Convening Authority was disqualified based on his personal interest in the case's outcome. AE 157P at 23. On October 4, 2019, the military judge (i) denied AE 158, a dismissal motion alleging that an "appearance of partiality" pervaded Al-Hadi's entire commission, yet (ii) permitted "reconsideration of any rulings and orders issued by Judge Waits [and] specifically identified by the Defense as warranting review." AE 158R ...