[00:00:01] Speaker 00:
Case number 14-1075 at L. Ibrahim Ahmed Mahmoud Al-Hossey, Petitioner, versus United States of America.

[00:00:09] Speaker 00:
Ms.

[00:00:09] Speaker 00:
McCormick for the petitioner, Mr. Palmer for the respondent.

[00:00:21] Speaker 01:
Good morning, Your Honor.

[00:00:22] Speaker 01:
It may please the Court.

[00:00:24] Speaker 01:
In this Court's 1979 decision in Curry, the Court deferred to Congress's authority to set up procedures for military tribunals that would not, as this Court said, pass constitutional muster in a civilian system.

[00:00:39] Speaker 01:
Critical to the Court's decision in Curry were three safeguards.

[00:00:43] Speaker 03:
Did you think, Your Counsel, did you think it made sense?

[00:00:45] Speaker 03:
to start with the merits of your dispute rather than the issue that we flagged for you?

[00:00:51] Speaker 03:
Since there's no standing, that's the end of the case, isn't it?

[00:00:55] Speaker 01:
But the three safeguards that, two of the three safeguards are at issue here.

[00:00:59] Speaker 01:
One is the automatic right to appeal and one is the automatic appointment to counsel.

[00:01:03] Speaker 01:
As far as standing goes, Coase has not disavowed his appeal and therefore he has standing.

[00:01:12] Speaker 01:
Conviction is at issue in this case.

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And I have been appointed under the statute to represent him for purposes of the automatic appeal below.

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And I have no authority as even the case... It's perfectly clear.

[00:01:24] Speaker 03:
He has an abstaining right?

[00:01:27] Speaker 01:
Yes, Your Honor.

[00:01:28] Speaker 03:
And he has not authorized this appeal?

[00:01:32] Speaker 01:
He has not disavowed this appeal, Your Honor.

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And I don't have the authority to waive this appeal.

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In other words, this is not a permissive appeal.

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This is an automatic right to appeal, and I don't have authority to waive it absent instructions from him.

[00:01:47] Speaker 02:
Isn't that automatic right to appeal contingent upon the notion that the person wants to take the appeal?

[00:01:54] Speaker 01:
Well, there's nothing in the record that he doesn't want to take this appeal, and I'll tell you... Is there anything in the record that he wants to take the appeal?

[00:02:01] Speaker 01:
He did not file the waiver of appeal as required within the 10 days.

[00:02:07] Speaker 01:
And so he was entitled to automatic appeal below.

[00:02:11] Speaker 03:
The automatic appeal is in the law of our proceeding.

[00:02:14] Speaker 03:
It's not in this court, is it?

[00:02:16] Speaker 03:
There's no rule on an automatic appeal in this court.

[00:02:18] Speaker 01:
That's correct, Your Honor, but this, in order to vindicate his right to that automatic appeal below, I had no authority from him to waive the right.

[00:02:27] Speaker 02:
But I thought the only cases that we could hear, speaking of our jurisdiction under 950G,

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We may act under this section, I'm quoting from subsection D, only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside by the court.

[00:02:50] Speaker 02:
of Military Commission Review.

[00:02:52] Speaker 02:
Is that what you're bringing in front of us?

[00:02:54] Speaker 01:
Yes, Your Honor.

[00:02:55] Speaker 02:
The findings and sentence of the Court of Military Commission Review.

[00:02:59] Speaker 02:
Is that what you're bringing in front of us?

[00:03:01] Speaker 01:
Yes, Your Honor.

[00:03:01] Speaker 02:
How so?

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They have made a final decision that they've rejected 950-F.

[00:03:06] Speaker 02:
I'm not saying final decision.

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It has to be a finding, finding and sentence.

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What's the finding that's before us?

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Finding before us is that there is no appeal pending because the

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presumably the waiver was effective.

[00:03:22] Speaker 01:
So it's not unlike any other case that is before this Court where the case is docketed for purposes of determining the effectiveness of the waiver and whether review... So what is the finding again?

[00:03:36] Speaker 01:
The finding is that there was no appeal pending.

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that he waived his right, or for whatever reason, the court determined that, and it based its entire decision on that.

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And that's a final judgment for purposes of appeal.

[00:03:50] Speaker 04:
Captain McCrory, I think there's an... The problem I think you may have here is with respect to the 950G, which says... I mean, Judge Griffiths is right about looking at D, but...

[00:04:07] Speaker 04:
It says we only have jurisdiction over final judgments.

[00:04:15] Speaker 01:
Yes, you're right.

[00:04:16] Speaker 04:
And there's no, even if you're right, that the commission's decision with respect to whether you're authorized to represent the petitioner, even if that's wrong, you don't have a final judgment here.

[00:04:33] Speaker 04:
That's the problem, isn't it?

[00:04:36] Speaker 01:
The CMCR's decision is predicated on the fact that it rejected its mandated review under 950F.

[00:04:42] Speaker 01:
Well, no.

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That's the final judgment.

[00:04:44] Speaker 04:
No, I think the way I read it, all it said was it decided only one issue.

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That is, that the authority's appointment of you was not enough to establish an attorney-client relationship with ALCOSI.

[00:04:56] Speaker 01:
Or collateral litigation.

[00:04:58] Speaker 04:
Well, no attorney-client relationship.

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But presumably, if ALCOSI, if you were to reach ALCOSI,

[00:05:06] Speaker 04:
and he would authorize you to represent him, or if he had some other lawyer, he could still bring his appeal, right?

[00:05:14] Speaker 04:
That hasn't been precluded here.

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Am I wrong about that?

[00:05:19] Speaker 01:
Presumably.

[00:05:20] Speaker 04:
OK, so then where's the final judgment?

[00:05:22] Speaker 01:
The final judgment is... That's the problem.

[00:05:24] Speaker 04:
That's what's bothering me.

[00:05:27] Speaker 01:
The court's decision below is focused on the Chief Defense Counsel's authority to appoint me for purposes of collateral litigation, because there's no appeal pending.

[00:05:37] Speaker 01:
That's expressed in the decision.

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So they've made the decision that they will not be doing 950F review below.

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That's the final decision that's before here.

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In other words, they rejected his appeal

[00:05:50] Speaker 04:
No, no.

[00:05:51] Speaker 04:
Well, that's not the way I read it.

[00:05:53] Speaker 01:
And let me draw your attention to it.

[00:05:54] Speaker 04:
Well, let me ask you to just, could you say, point to me where in the order that's under review here, where they actually rejected that?

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All I see is language saying that the authority's appointment of you is not sufficient.

[00:06:09] Speaker 04:
That's all that I see in there.

[00:06:10] Speaker 01:
But then the remainder of that sentence is because there's no direct appeal pending.

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Right.

[00:06:15] Speaker 01:
And I would draw the court's attention to the Chaucas order

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the court issued in February, I believe it was, of 2014, I think it's at page 85 of the government supplement, where the court, the CMCR recognized that as an alternative remedy, I did ask them to dock at the case or review, sorry, the 950C.

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So that was a remedy before it.

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All of this was briefed.

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They had before them the full briefing that review was mandated, and they rejected that decision.

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And that's the final decision that's before you.

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That's why their current decision is based on collateral litigation and their conclusion that there's no appeal pending.

[00:06:57] Speaker 04:
But isn't it, am I wrong, that if you were to reach Al-Kosy, say, by phone,

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and he authorized you to pursue his appeal.

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Or if he found other counsel, he could do that, correct?

[00:07:11] Speaker 04:
Nothing precludes that at this point.

[00:07:13] Speaker 01:
Nothing precludes that, Your Honor.

[00:07:16] Speaker 04:
OK.

[00:07:16] Speaker 04:
All right.

[00:07:16] Speaker 01:
Although it's difficult to understand, given the court's decision below, the vehicle that I would use to do that.

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It might have to be Corm Novus that I bring, rather than the direct appeal, because they did reject the 950-F appeal.

[00:07:32] Speaker 04:
So I had another question for you.

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The CMCR asked you several times to explain why you actually had to travel there, why a phone call or a letter wouldn't do.

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And the government says in its brief that you never responded to that.

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You say that you did.

[00:07:59] Speaker 01:
I did, Your Honor.

[00:08:00] Speaker 01:
In response to the show cause order, I told them that despite my best efforts, given the limitations the government had placed on me, I had been unable to establish communication.

[00:08:10] Speaker 01:
Nothing was sufficient.

[00:08:13] Speaker 01:
absent, and I had explained to them in my initial brief that travel to Sudan was necessary because of the trust issues that are involved and to try and establish trust and... Okay, so I'm looking at your response to the Chokha's order.

[00:08:35] Speaker 04:
You say

[00:08:37] Speaker 04:
You talk about the obstacles the government has put in your way, right?

[00:08:42] Speaker 04:
You talk about the obstacles.

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You call them insuperable.

[00:08:48] Speaker 04:
But as I read your response to the show cause order, it's basically that the appeal is automatic.

[00:08:56] Speaker 04:
Where's the response to the government saying, why isn't either a letter or a phone call sufficient?

[00:09:04] Speaker 01:
Well, first of all, the court didn't ask me to be specific about what I'd done.

[00:09:08] Speaker 01:
But if you look at the section, it's near the end, where I say that despite my, the language is in there, despite my best effort, I have been unable to establish communication with him.

[00:09:18] Speaker 03:
But you didn't write a letter to your erstwhile client, did you?

[00:09:22] Speaker 01:
Yes, I did, Your Honor.

[00:09:23] Speaker 03:
And what happened?

[00:09:24] Speaker 01:
There was no response.

[00:09:25] Speaker 01:
But I don't have an address for him.

[00:09:27] Speaker 01:
I don't have a phone number for him.

[00:09:28] Speaker 01:
I went through intermediaries.

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And all the information I had in the case file, nothing was sufficient.

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And I would remind the court that he's subject to monitoring by the Sudanese government, which is a very repressive regime.

[00:09:43] Speaker 01:
Our office is subject to monitoring, and communications to Sudan are subject to monitoring.

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So I can't even be certain that he received my letter or that the intermediaries made contact with him.

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So I've been frustrated at every angle.

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And the fact that I can't travel, which is a normal thing for an appellate counsel to do, to try and consult with a client, has made this case what it is.

[00:10:11] Speaker 01:
That's how it started out.

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And the reason the government denied my travel was that they deemed the waiver to be effective.

[00:10:20] Speaker 01:
And we know now in the Hicks case, the CMCR is held differently.

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that the waiver, because it wasn't filed within 10 days in Hicks, same situation as here, that the appeal should have gone forward.

[00:10:32] Speaker 01:
And there's nothing in the statute that says that Hicks and Cozy should be treated differently.

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And so I would... What confidence do you have that if you were to travel, you would be in contact with?

[00:10:43] Speaker 01:
All I can relate to the court is I've been assured by the Sudanese government that they will arrange a meeting if I can get to Sudan.

[00:10:51] Speaker 03:
But they can't arrange a phone call.

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The Sudanese government would have assured that a letter would have been presented.

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Or a phone call.

[00:10:58] Speaker 01:
But I can't trust that that happened.

[00:11:00] Speaker 03:
Well, you wouldn't trust them in the meeting then, either.

[00:11:03] Speaker 01:
But at least I've made every effort then.

[00:11:05] Speaker 01:
And I've made the most effort I can.

[00:11:08] Speaker 03:
Because you haven't made an effort to make a phone call.

[00:11:11] Speaker 01:
I don't have a phone number, Your Honor.

[00:11:12] Speaker 01:
I call the intermediaries.

[00:11:14] Speaker 01:
I call the contacts right now.

[00:11:16] Speaker 02:
But that doesn't make sense.

[00:11:17] Speaker 02:
You're saying the Sudanese government has promised you that they will arrange an interview.

[00:11:22] Speaker 02:
Why don't, instead of promising to arrange an interview, they promise to put him on the phone?

[00:11:28] Speaker 02:
Certainly, if they can produce him to meet with you face to face, they can produce him to be on the phone with you.

[00:11:34] Speaker 01:
And I did ask them for that, Your Honor.

[00:11:36] Speaker 02:
And what did they say?

[00:11:37] Speaker 01:
They said they couldn't arrange it.

[00:11:39] Speaker 02:
They couldn't arrange a phone call, but they could arrange it in person.

[00:11:43] Speaker 02:
That doesn't seem plausible.

[00:11:46] Speaker 01:
I can only go by what they're telling me you're on now.

[00:11:50] Speaker 01:
And whether or not I ever establish communication with COSI, the review below is supposed to take place.

[00:11:56] Speaker 01:
Now, I understand that that's a system, military system is quite different than what you're used to, but that's what happens in military tribunals.

[00:12:04] Speaker 01:
The automatic review below happens whether or not you ever talk to your client, because Congress has mandated that review will happen.

[00:12:11] Speaker 01:
And if this court or the CMCR is written into a requirement that COSI come forward and do some affirmative act to ensure that its appeal happens, that's not in the statute.

[00:12:22] Speaker 01:
That's a requirement that it's written into the statute.

[00:12:24] Speaker 01:
It's not there.

[00:12:26] Speaker 01:
And I would ask that this court not adopt that.

[00:12:37] Speaker 01:
Article 3 jurisdiction exists because his conviction is that issue.

[00:12:42] Speaker 03:
No, no, no, ma'am.

[00:12:43] Speaker 03:
Not if there's no standing.

[00:12:46] Speaker 03:
You can't say there's a legal issue floating.

[00:12:49] Speaker 03:
He has standing.

[00:12:50] Speaker 03:
Only if he appeals.

[00:12:53] Speaker 03:
Do you see the point?

[00:12:54] Speaker 03:
I see the point.

[00:12:55] Speaker 03:
And the fact that there is a structure for the military commission or military appeals

[00:13:03] Speaker 03:
is irrelevant once you come to Article III court.

[00:13:05] Speaker 01:
Right, but even a court-appointed attorney here at Article III court would have standing to... unless the client came forward.

[00:13:16] Speaker 03:
Unless the client didn't authorize it.

[00:13:18] Speaker 01:
Unless the client expressed that they didn't authorize it, correct.

[00:13:20] Speaker 03:
But as I understand... In fact, we would ask for authorization unless there was an incongruency question.

[00:13:28] Speaker 04:
I've never thought of a lawyer's role here, or in any court, as one of standing.

[00:13:34] Speaker 04:
It's one of authorization by the client, isn't it?

[00:13:38] Speaker 01:
Yes, Your Honor.

[00:13:39] Speaker 04:
And the statute can authorize it.

[00:13:41] Speaker 04:
The question is, does a client have standing, and is the lawyer authorized?

[00:13:45] Speaker 01:
Right.

[00:13:45] Speaker 04:
And in our situation... You don't have any personal standing one way or the other here.

[00:13:51] Speaker 01:
That's correct.

[00:13:51] Speaker 01:
I'm only here to represent.

[00:13:53] Speaker 04:
So the question is, are you authorized?

[00:13:55] Speaker 01:
Right, and the statute authorizes me, because the statute requires my appointment.

[00:13:59] Speaker 04:
Well, we're going in circles now.

[00:14:00] Speaker 04:
The commission has said that's not sufficient, right?

[00:14:03] Speaker 01:
For collateral litigation.

[00:14:06] Speaker 01:
Yeah, right.

[00:14:06] Speaker 01:
For my request of trial.

[00:14:11] Speaker ?:
Right.

[00:14:11] Speaker 01:
OK.

[00:14:11] Speaker 01:
The court below seems to think that it has discretion to not do the mandatory review.

[00:14:20] Speaker 01:
There is no discretion built into the system.

[00:14:23] Speaker 01:
It was required to do the mandatory review,

[00:14:25] Speaker 01:
and review Mr. Cozy's conviction.

[00:14:29] Speaker 01:
I'm here at this court to vindicate that right.

[00:14:31] Speaker 01:
So the narrowest holding that you could have is to remand the case for the review that's mandated by 950F.

[00:14:38] Speaker 01:
And I ask you to do that.

[00:14:39] Speaker 01:
OK.

[00:14:40] Speaker 01:
If there are no further questions, then I'll reserve the remainder of my time and rely on the brief.

[00:14:44] Speaker 04:
OK, thank you.

[00:14:59] Speaker 05:
Good morning.

[00:15:00] Speaker 05:
I'm Joseph Palmer from the Justice Department.

[00:15:04] Speaker 05:
This court lacks jurisdiction over the petition for review in this case because there's no evidence in the record that the petitioner has authorized it.

[00:15:13] Speaker 05:
The Supreme Court's cases say that the decision... Wait, wait, wait.

[00:15:19] Speaker 04:
You started the way you started in your brief with your sentence there.

[00:15:24] Speaker 04:
I'm confused.

[00:15:26] Speaker 04:
You say we don't have jurisdiction because Captain McCormick wasn't authorized.

[00:15:30] Speaker 04:
That sounds to me like the merits.

[00:15:33] Speaker 04:
Then you go on in your second section of the brief, and I'll tell about page 30, and then you say under 950 we lack jurisdiction because it's not a final order, final judgment.

[00:15:44] Speaker 04:
I guess I don't completely understand your theory.

[00:15:49] Speaker 04:
It sounds like you're starting out with the merits.

[00:15:54] Speaker 05:
We see both of those issues as threshold jurisdictional questions.

[00:16:01] Speaker 05:
Section 950G that provides for this court's jurisdiction over military commission cases requires, as a jurisdictional prerequisite in the government's view, a timely and authorized petition for review.

[00:16:16] Speaker 05:
without such a petition for review, there's no jurisdiction under 950-G.

[00:16:21] Speaker 05:
And so the government's initial argument regarding whether the petition was authorized goes to whether this court has jurisdiction under section 950-G.

[00:16:33] Speaker 05:
If there's no petition filed, then this court's jurisdiction isn't invoked under that statute.

[00:16:41] Speaker 04:
Well, did you start with that because you think that's a stronger argument than that there's no final judgment?

[00:16:49] Speaker 05:
I do.

[00:16:49] Speaker 05:
It does seem to us to be the most straightforward resolution of the case.

[00:16:54] Speaker 05:
And the ground relied on below in that because

[00:17:05] Speaker 05:
analogous to a notice of appeal in a criminal case, if there's no authorized petition to invoke the court's jurisdiction, then there's no jurisdiction.

[00:17:17] Speaker 05:
And in this case, I don't think there's any dispute that the, as a matter of fact, that the petition hasn't been authorized by the petitioner.

[00:17:25] Speaker 04:
I'm sorry.

[00:17:26] Speaker 04:
I'm just looking at the statute here.

[00:17:28] Speaker 04:
What in 95950-G?

[00:17:32] Speaker 04:
What in 950G are you relying on?

[00:17:34] Speaker 04:
I understand the final judgment.

[00:17:36] Speaker 04:
I mean, maybe there's something in this court's procedures or some other federal statute that says we don't have jurisdiction if we don't have a proper notice of appeal.

[00:17:47] Speaker 04:
But what's in 950G that says that?

[00:17:49] Speaker 04:
It says the DC Circuit shall have exclusive jurisdiction to determine the validity of a final judgment.

[00:17:57] Speaker 04:
That's all it says.

[00:18:01] Speaker 04:
GD says, as Judge Griffith pointed out to Captain McCormick, we may act under this section only with respect to findings in sentence.

[00:18:13] Speaker 04:
What in there talks about what would we rely on in that statute for the proposition that because Captain McCormick is not authorized, we don't have jurisdiction?

[00:18:27] Speaker 05:
I'm relying on the provision in between those, subsection C of section 950G referring to a petition for review that must be filed within a 20-day time limit.

[00:18:43] Speaker 05:
And we view that requirement, the filing of that petition, according to the time limit, presupposes that that petition must be authorized in order to invoke the court's jurisdiction.

[00:18:57] Speaker ?:
OK.

[00:18:58] Speaker 04:
It seems like a much harder argument than your other one.

[00:19:01] Speaker 03:
I don't agree with you.

[00:19:02] Speaker 03:
I think it's easier here.

[00:19:02] Speaker 03:
Well, I think they're both equivalent grounds to throw a case out of the jurisdiction.

[00:19:08] Speaker 03:
A lawyer can't come to court presenting an issue without a client.

[00:19:15] Speaker 03:
And we don't have a client here.

[00:19:17] Speaker 03:
So then the lawyer doesn't have to.

[00:19:20] Speaker 04:
But that's the issue she's asking us to review.

[00:19:27] Speaker 04:
No.

[00:19:27] Speaker 03:
It's a question of whether there's authority.

[00:19:29] Speaker 04:
Well, but she's challenging that.

[00:19:32] Speaker 04:
Her theory is that the Commission's decision that her appointment is insufficient is inaccurate.

[00:19:39] Speaker 02:
This is what conference is like.

[00:19:42] Speaker 02:
Right.

[00:19:42] Speaker 02:
Except we don't have our robes on for that.

[00:19:43] Speaker 04:
You're welcome to participate.

[00:19:44] Speaker 04:
If you'd like to participate in this, please join in.

[00:19:56] Speaker 03:
even if my colleague is not.

[00:20:00] Speaker 03:
But you can take on the other jurisdictional issue, which is no final judgment.

[00:20:08] Speaker 05:
Yes, I think I'd like to agree with the view that was expressed.

[00:20:16] Speaker 05:
Let me start over.

[00:20:21] Speaker 05:
Defense counsel relies on the automatic appeal provisions related to the jurisdiction of the CMCR, the court below.

[00:20:31] Speaker 05:
But those provisions do not apply to this court's jurisdiction.

[00:20:36] Speaker 05:
There's no automatic appeal to this court.

[00:20:39] Speaker 05:
This court's jurisdiction, again, requires the timely filing of an authorized petition in order to invoke it.

[00:20:47] Speaker 05:
But in the government's view, the decision below did not- I thought her- I'm sorry.

[00:20:54] Speaker 04:
I thought her automatic appeal argument went to the question of whether- of the actions of the commission, not us.

[00:21:05] Speaker 04:
Is that not right?

[00:21:07] Speaker 04:
No, she said she has an auto- he has an automatic appeal to the commission.

[00:21:09] Speaker 04:
She wasn't arguing she had an automatic appeal here, just to the commission.

[00:21:14] Speaker 04:
That was her argument.

[00:21:15] Speaker 04:
I'm not saying it was right or not, but that was her argument.

[00:21:19] Speaker 05:
That may be.

[00:21:20] Speaker 05:
I took counsel to be contending that because of that automatic appeal below, then the jurisdiction carried over to this court in order to ensure that that automatic review took place.

[00:21:34] Speaker 04:
Well, we can ask her when she says that.

[00:21:36] Speaker 04:
I thought her argument about an automatic appeal was a response

[00:21:39] Speaker 04:
was an effort to make an argument that there was an automatic appeal, so there was a case pending.

[00:21:52] Speaker 04:
And therefore, her appointment was sufficient.

[00:21:55] Speaker 04:
I thought that's what she was arguing.

[00:21:57] Speaker 05:
I agree that she's argued that.

[00:21:58] Speaker 05:
I was responding then to what we see as the additional hurdle of establishing jurisdiction in this court.

[00:22:17] Speaker 03:
with Article 3, that's Article 1.

[00:22:20] Speaker 05:
That's correct.

[00:22:20] Speaker 03:
Congress could legitimately provide for Article 1 that an appeal is pending whether or not it's authorized.

[00:22:30] Speaker 03:
Congress could do that, but not with respect to Article 3.

[00:22:34] Speaker 03:
Is that your point?

[00:22:37] Speaker 05:
Whether Congress could provide for an automatic appeal in this court, I agree, Your Honor, would at least raise a difficult question.

[00:22:46] Speaker 05:
Our argument is that Congress hasn't done that.

[00:22:49] Speaker 05:
And so the Court doesn't need to necessarily address the constitutional issue, because Congress has required

[00:22:58] Speaker 05:
the affirmative act of the filing of a petition within the 20-day time limit in order to invoke... What's your strongest argument that there's no final judgment here?

[00:23:08] Speaker 02:
Isn't that the neatest shot here?

[00:23:10] Speaker 02:
I mean, it says we are only supposed to be looking at final judgments from the Commission.

[00:23:15] Speaker 05:
Well, there is a final military Commission judgment in the sense that there is a conviction and sentence in the case.

[00:23:22] Speaker 02:
I'm sorry, I didn't hear that.

[00:23:23] Speaker 02:
Could you say that again?

[00:23:25] Speaker 02:
I'm asking for your strongest argument that there is no final judgment before us.

[00:23:30] Speaker 05:
Our argument is that there is no final judgment as affirmed or set aside by the CMTR.

[00:23:36] Speaker 05:
We construe the decision below as not having reached the question of affirming or setting aside the military commission's judgment, because it determined that the... So is there a finality element to the decision below?

[00:23:51] Speaker 02:
It's just not that it's a final judgment reviewing findings and sentence.

[00:23:57] Speaker 02:
Is that your argument?

[00:23:59] Speaker 05:
Yes, if I've understood, Your Honor, we see the decision below as having left open the possibility that the petitioner could still authorize defense counsel or other counsel to pursue remedies in that court.

[00:24:16] Speaker 04:
It resolved only the question of- That's what I was going to ask you.

[00:24:19] Speaker 04:
You're representing to us that that's the case, correct?

[00:24:22] Speaker 04:
If Captain McCormick was able to reach him somehow by letter, then he authorized it, he could appeal, correct?

[00:24:29] Speaker 05:
There's nothing in the decision below that would preclude that.

[00:24:32] Speaker 05:
Right, OK.

[00:24:33] Speaker 05:
I wouldn't want to say that there wouldn't be arguments that the government would.

[00:24:36] Speaker 04:
I'm not asking you a little beyond that.

[00:24:37] Speaker 04:
You're just saying there's nothing in this order that would preclude it.

[00:24:40] Speaker 05:
Yes, that's the government's.

[00:24:41] Speaker 04:
The order on review here.

[00:24:42] Speaker 05:
Yes.

[00:24:42] Speaker 04:
Right?

[00:24:43] Speaker 04:
OK.

[00:24:46] Speaker 04:
So that's your answer to Judge Griffith's question about why there's no final judgment, that the only decision here is a resolution of the question of whether Captain McCormick is authorized.

[00:25:00] Speaker 05:
That's the way we view the decision below.

[00:25:02] Speaker 04:
And under your view, that's not a final judgment, because it's not a review of a sentence and of a, what is the language?

[00:25:10] Speaker 04:
Findings.

[00:25:10] Speaker 04:
Findings and sentence.

[00:25:12] Speaker 02:
Yes.

[00:25:12] Speaker 04:
Right?

[00:25:20] Speaker 04:
Anything else?

[00:25:27] Speaker 05:
have one small point that I might want to make.

[00:25:30] Speaker 05:
The government has argued that

[00:25:35] Speaker 05:
in the event that the court disagrees with us on these threshold jurisdictional questions, that it should not reach the challenges that defense counsel has raised on the merits, but rather that those should be considered in the first instance by the military courts below.

[00:25:51] Speaker 05:
But I do want to take one moment and correct an error that I just found in the government's brief related to one of those merits challenges and the standard of review.

[00:26:00] Speaker 05:
The government argued that

[00:26:02] Speaker 05:
a petitioner both waived and forfeited his ex post facto challenge to the conspiracy count, but only the waiver component of that argument is correct.

[00:26:14] Speaker 05:
The petitioner did not forfeit an ex post facto clause challenge to that count because he raised it in a motion pre-trial, but he waived it by pleading guilty without reserving the right to appeal that decision.

[00:26:28] Speaker ?:
OK.

[00:26:30] Speaker 04:
Thank you.

[00:26:31] Speaker 05:
If there are no further questions.

[00:26:32] Speaker 04:
No, I don't think so.

[00:26:33] Speaker 05:
Thank you.

[00:26:34] Speaker 04:
Does Captain McQuarrick have any time left?

[00:26:38] Speaker 04:
You can take a whole minute.

[00:26:40] Speaker 01:
Thank you, Your Honor.

[00:26:43] Speaker 01:
I would just call this Court's attention back to how this case started.

[00:26:47] Speaker 01:
I wanted to travel to see my client, and the convening authority denied travel based on the fact that the waiver was effective.

[00:26:54] Speaker 01:
He was treating the waiver of appellate review as effective.

[00:26:57] Speaker 01:
I brought that issue to the CMCR and asked them to order my travel authorized because the waiver wasn't effective and the statute mandated review and in the alternative to bring the case to that court from

[00:27:18] Speaker 01:
to do the 950 review.

[00:27:19] Speaker 01:
It didn't do either.

[00:27:20] Speaker 01:
And that's the final judgment this year.

[00:27:22] Speaker 01:
As far as Article 3 standing goes, the statute authorizes me to be his representative.

[00:27:27] Speaker 01:
And even in the case that the government cited Don v. Nix, it says I cannot waive appellate review.

[00:27:34] Speaker 01:
That's the part of the quote the government left out of its quotation.

[00:27:37] Speaker 01:
So in the absence of my client, that's what the Arrows case out of the Second Circuit, and that's what the Carter v. Brad

[00:27:45] Speaker 01:
Shaw, which is part of Ryan B. Gonzalez holds, is that there are situations where you don't have participation from a client where the attorney has the authority to proceed.

[00:27:55] Speaker ?:
Okay.

[00:27:57] Speaker 04:
Thank you.

[00:27:58] Speaker 01:
Thank you, Your Honor.

[00:27:58] Speaker 04:
The case is submitted.