[00:00:14] Speaker ?:
Call the respondent.

[00:00:16] Speaker ?:
Congratulations.

[00:01:10] Speaker 00:
Good morning, Your Honor.

[00:01:14] Speaker 00:
Good morning, Your Honors and may it please the Court.

[00:01:18] Speaker 00:
We ask this Court to vacate the pretrial proceedings in this case because the undisputed record shows that Colonel Vance Bath, who presided over this capital case, violated at least four clear and indisputable rules of judicial conduct

[00:01:34] Speaker 00:
The violation of any of these rules would warrant the vacator of the proceeding.

[00:01:39] Speaker 00:
But collectively, they shock the conscience.

[00:01:44] Speaker 00:
First, Colonel Spath knowingly concealed facts that called his impartiality into question.

[00:01:52] Speaker 00:
Second, he angled for an appointment from the Attorney General at the same time the Attorney General and the Justice Department had a substantial interest in the case before him.

[00:02:02] Speaker 00:
Third, he traded on the fact that he was the judge in this capital case for his own personal gain.

[00:02:10] Speaker 00:
And fourth, and most seriously, he allowed his personal financial interests to influence how he handled and scheduled this capital case.

[00:02:24] Speaker 00:
None of that, what you've alleged, was before the CMCR, right?

[00:02:30] Speaker 00:
No, that's not correct, Your Honor.

[00:02:32] Speaker 00:
With respect to the first two, first, the concealment of facts that called his impartiality into question, and second, the fact that he had been seeking this attorney general appointment, both of those facts were in front of the CMCR.

[00:02:44] Speaker 00:
The CMCR had the same record before it that this court had when we filed our initial petition.

[00:02:51] Speaker 00:
With respect to the third and the fourth,

[00:02:54] Speaker 00:
the trading on his judicial service and subsequently how his personal ambitions influenced this case.

[00:03:00] Speaker 02:
So why not give it back?

[00:03:03] Speaker 02:
There's a new military commission judge, right?

[00:03:05] Speaker 02:
Why not kick it back there, create the record?

[00:03:11] Speaker 02:
Much of what you're referring to now comes from a FOIA request.

[00:03:15] Speaker 02:
Why not create a record there and have it proceeded in an orderly fashion in front of a new judge?

[00:03:20] Speaker 00:
For at least two practical reasons and a third, I would say, is an important doctrinal reason.

[00:03:26] Speaker 00:
The first practical reason is that the current military commission judge, Colonel Shelley Schools, as the government disclosed in their 28-year letter, is now also appointed as an immigration judge.

[00:03:38] Speaker 00:
And so we'd be going back in front of a judge who committed exactly the conduct we're complaining about with respect to Colonel Spath.

[00:03:44] Speaker 04:
Well, isn't she gone now?

[00:03:45] Speaker 00:
No, that's not correct, Your Honor.

[00:03:47] Speaker 00:
She remains the military commission judge.

[00:03:48] Speaker 00:
She has not yet been reassigned by the chief judge of the military commission trial judiciary.

[00:03:54] Speaker 00:
And so that's the first practical problem.

[00:03:58] Speaker 00:
We're going in front of a judge who, at a minimum, is going to have a jaundiced view of our arguments here.

[00:04:05] Speaker 00:
The second practical problem, though,

[00:04:09] Speaker 00:
is the CMCR ruled on the merits, at least with respect to the first two claims we've raised, which we think are clear and indisputable violations, the withholding of material facts as well as the seeking an appointment, making oneself a supplement for employment from a party or someone with a substantial interest in the case.

[00:04:27] Speaker 00:
So if the mandate rule means anything, it's that at a minimum, the military commission judge, whomever that may be, is going to have to take that incredibly seriously if not treated as binding.

[00:04:39] Speaker 00:
The third and the doctrinal reason that I think is really quite important here is the kind of concerns that this court pointed out in United States versus Microsoft.

[00:04:48] Speaker 00:
Judicial misconduct is thankfully quite rare, but when it does happen, all the case law says it has to be stamped out at the earliest possible opportunity because even the whiff

[00:05:00] Speaker 00:
of judicial partiality.

[00:05:02] Speaker 00:
Even the whiff of judicial bias and misconduct fundamentally compromises the public's faith in the integrity of the judicial system.

[00:05:09] Speaker 00:
So in Microsoft, this court had far less clear and indisputable of a record than it has now.

[00:05:15] Speaker 00:
And it nevertheless declined to send it back down to the district court, even though the case was already going back down to the district court, and said, no, we have to resolve this now.

[00:05:26] Speaker 04:
What's your response to the government's argument that, look, you'd be completely right if the judge here applied for a job in the Defense Department, but this was justice and these cases are prosecuted by the Defense Department.

[00:05:42] Speaker 04:
This is a Defense Department commission.

[00:05:45] Speaker 04:
The Justice Department is just not involved.

[00:05:49] Speaker 00:
Well, at first, I think if he was applying for a job in the Defense Department, we may actually have less of an argument, at least in part because there are certain provisions, at least a military position in the Defense Department, because there are provisions of the Military Commissions Act that prohibit reviewing a judge's conduct on the bench for the purposes of promotion.

[00:06:08] Speaker 00:
So if we were still within the Defense Department, we'd at least have some kind of statutory protection.

[00:06:12] Speaker 00:
But I think the broader point that Your Honor is getting to

[00:06:16] Speaker 00:
is belied by the record from beginning to end.

[00:06:18] Speaker 00:
The lead prosecutor, and that's not my characterization, that's Colonel Spath's characterization of this individual.

[00:06:24] Speaker 00:
The lead prosecutor is a Justice Department attorney who is personally assigned by the Attorney General or at least by Attorney General order to this case.

[00:06:32] Speaker 00:
The Attorney General both has an office and then former Attorney General, excuse me, Attorney General Sessions

[00:06:37] Speaker 00:
who gave Colonel Spath this appointment have had routine and important and particular interest.

[00:06:43] Speaker 04:
Suppose there wasn't, I'm just trying to test where mine is here, suppose there wasn't a detailed Justice Department lawyer on the prosecution team?

[00:06:51] Speaker 00:
We would have a weaker case, but I still think, at least with respect to that second rule violation, we're still here only talking about one of the four rule violations

[00:07:00] Speaker 00:
that the record here unambiguously shows, the uncontested record unambiguously shows.

[00:07:07] Speaker 00:
We may have a harder case in that situation, but that's not the situation we have here.

[00:07:11] Speaker 00:
Attorney General Sessions in particular had a very special and particular interest both in the military commissions and our client's case.

[00:07:18] Speaker 00:
And we would think any one of these would require vacator of the pretrial proceedings in this case, at least from the time he applied.

[00:07:25] Speaker 04:
So is this a case of

[00:07:30] Speaker 04:
Maybe your answer to my question is going to be both.

[00:07:32] Speaker 04:
Is this a case of an actual inappropriate interest, or is this an appearance problem?

[00:07:39] Speaker 00:
We would say this actually meets the high standard of being an actual.

[00:07:44] Speaker 00:
That's an often vague line.

[00:07:47] Speaker 00:
Your Honor, it's a concurring opinion in the matter of judicial conduct, I think, tried to parcel it between what in actual, in sort of potential bias or appearance of bias, it's sort of the near occasion of bias.

[00:07:58] Speaker 00:
Whereas, does someone actually have a bias that they know about creates an actual bias, even if you can't show that, or even if you can't individually point to decisions that were the product of that bias, right?

[00:08:08] Speaker 00:
Because it still is an objective test.

[00:08:11] Speaker 00:
And so the question is, does a reasonable observer, knowing all the facts, would they determine that this decision could have been influenced by bias?

[00:08:18] Speaker 00:
To use the Supreme Court's language,

[00:08:21] Speaker 00:
It's would there be any temptation to not hold the line of justice neat, clean, and true?

[00:08:27] Speaker 02:
What are the orders by Judge Spath that he rendered after he applied to the Department of Justice that were affirmed by the CMCR?

[00:08:38] Speaker 02:
What are we talking about here?

[00:08:39] Speaker 00:
Affirmed by the CMCR, I think it's probably close to about half a dozen specific orders.

[00:08:46] Speaker 00:
Some of these orders, and one of the reasons why we're asking for vacate or proceedings as a whole, is some of these orders build on one another, and they'll be amended orders or they'll revisit the same issue.

[00:08:57] Speaker 00:
So I think, at bottom, I think... I'm trying to get at you.

[00:09:00] Speaker 02:
You've raised, there's an alternative argument here, right, and that is to vacate

[00:09:05] Speaker 02:
his orders entered after he applied to the Department of Justice.

[00:09:09] Speaker 02:
I'm just trying to see what that would look like with respect to the CMCR.

[00:09:14] Speaker 00:
I think it is a little bit at least unclear.

[00:09:17] Speaker 00:
If those orders are vacated, we would argue that CMCR's initial jurisdiction, which we would also argue is in doubt to begin with, but nevertheless, that their jurisdiction over the interlocutory appeal the government brought from the abatement would probably fall as well, and therefore their decision should at least be vacated by this court.

[00:09:35] Speaker 00:
We could probably file a writ of quorum nobis seeking the same remedy, but I think it would be simpler.

[00:09:40] Speaker 04:
Let me just pursue that a little more.

[00:09:43] Speaker 04:
There's been a whole series of orders since November, what is it, 2015?

[00:09:48] Speaker 04:
Yes.

[00:09:48] Speaker 00:
When he applied for the job?

[00:09:51] Speaker 00:
That's correct.

[00:09:52] Speaker 04:
So I assume some of those orders, I mean, we don't know what they are, but how would we, if we don't want to just vacate all of them, we're all assuming you win here.

[00:10:04] Speaker 04:
This is a hypothetical question.

[00:10:05] Speaker 04:
Absolutely.

[00:10:06] Speaker 04:
If you do, do we vacate?

[00:10:09] Speaker 04:
Why would we vacate them all?

[00:10:10] Speaker 04:
Wouldn't we want to know whether

[00:10:14] Speaker 04:
some of them may be just ministerial orders that weren't influenced.

[00:10:19] Speaker 04:
And also, just to pursue, I think what Judge Griffith was getting at, some of the orders affirmed by the CMCR, the CMCR was reviewing it de novo, right?

[00:10:32] Speaker 00:
I believe that's correct.

[00:10:33] Speaker 04:
Yeah, so why wouldn't those orders be okay?

[00:10:36] Speaker 04:
In other words,

[00:10:37] Speaker 04:
They've been affirmed by a bias-free appellate body.

[00:10:44] Speaker 00:
Because that's not how bias questions are dealt with.

[00:10:48] Speaker 00:
We don't have to point to prejudice from bias.

[00:10:51] Speaker 00:
The prejudice is the bias.

[00:10:52] Speaker 00:
It's the fact that my client from at least February or at least November of 2015, we would argue potentially February of 2015, which is

[00:11:01] Speaker 00:
the decision that he ends up using as his writing sample, which is essentially a favorable decision to the government.

[00:11:07] Speaker 00:
I think a reasonable observer, looking at all the facts, can see that decision and say, is that influenced by his future career ambitions?

[00:11:14] Speaker 00:
Many of the letters of recommendation he received also predate his actual application.

[00:11:17] Speaker 00:
But even if we just stick to that November 2015 date,

[00:11:22] Speaker 00:
My client was permanently deprived of the right to appear before an unbiased judge.

[00:11:27] Speaker 00:
That's the harm.

[00:11:28] Speaker 00:
That's the prejudice.

[00:11:29] Speaker 00:
And it's an objective test.

[00:11:31] Speaker 00:
And that's why this court, in a variety of circumstances, I'll point to the court's decision in Kempthorne, which I think is

[00:11:38] Speaker 00:
Somewhat analogous in many respects, where you had a special master essentially hire a former employee, or actually hire an employee of one of the parties.

[00:11:46] Speaker 00:
And this court said, everything that that judge did after he hired, excuse me, after that special master did, after that employee was hired has to be vacated because we have no idea how that influenced.

[00:11:57] Speaker 00:
could matter.

[00:11:58] Speaker 00:
And again, just returning to the point, the reason why courts such as this court review these issues at the earliest possible opportunity is so that clear decisions can be made.

[00:12:09] Speaker 00:
Had the government or Colonel Spath disclosed these facts on the record back in 2015, we could have litigated them.

[00:12:15] Speaker 00:
We could have perhaps built up a different record, although I don't know what unanswered questions are in the record.

[00:12:20] Speaker 03:
In reference to his having issued hundreds of orders

[00:12:25] Speaker 03:
Prior to his application on November 8th, what are we talking about in those prior orders?

[00:12:32] Speaker 03:
What's the nature of them, since all of this is pre-trial?

[00:12:37] Speaker 00:
Principally, and we did our best to sort of put together the record and figure out what it would look like if we went back.

[00:12:44] Speaker 00:
Principally, the orders from that prior period are a certain number of discovery compelling, the production of discovery orders, a number of rulings on legal motions, such as motions to dismiss.

[00:12:58] Speaker 03:
In other words, I'm trying to get this harmless era sort of clarified.

[00:13:02] Speaker 03:
These are not on this.

[00:13:06] Speaker 03:
ministerial rulings about undisputed matters?

[00:13:10] Speaker 00:
No, most of these would be disputed.

[00:13:12] Speaker 00:
When they say hundreds of orders, many of those will be, we're going to have a hearing on April 5th or something like that.

[00:13:18] Speaker 00:
The majority, I would even reckon to say, are probably that kind of ministerial order.

[00:13:23] Speaker 00:
But the substantive rulings run the gamut of discovery orders, legal motions, resources.

[00:13:30] Speaker 00:
There were certain conditions of confinement issues

[00:13:32] Speaker 00:
you know, pertained then have been resolved in one way or another now.

[00:13:37] Speaker 00:
That's sort of the universe of orders.

[00:13:39] Speaker 03:
But if I could point to one thing just in terms of in thinking about... I mean, you started out by saying you were seeking to have this court vacate the pretrial proceedings.

[00:13:49] Speaker 03:
Yes, Your Honor.

[00:13:50] Speaker 03:
And I think these questions have been trying to define exactly what that would involve.

[00:13:57] Speaker 00:
So I think the default rule that the Supreme Court set out in Lilleberg is to just vacate the proceedings.

[00:14:03] Speaker 00:
And that's after a trial.

[00:14:04] Speaker 00:
That's after a jury has been impaneled.

[00:14:06] Speaker 00:
That's after the significant event of a criminal trial where someone may have been found guilty of a crime, as they were in SIGA, a serious crime.

[00:14:14] Speaker 00:
And so we start with that remedy as the default.

[00:14:18] Speaker 00:
And we say, vacate the pretrial proceedings.

[00:14:20] Speaker 00:
We counted up the number of days.

[00:14:21] Speaker 00:
That sounds significant, and it is.

[00:14:23] Speaker 00:
And that's why we're asking for it.

[00:14:24] Speaker 00:
But we actually counted up the number of actual hearing days that this case has undergone, and it's about 79.

[00:14:31] Speaker 00:
So we're really only asking for what would be an ordinary proceeding about the vacator of about three to four months' worth of hearings and proceedings.

[00:14:43] Speaker 04:
Is that what all that is?

[00:14:45] Speaker 04:
It's all pre-trial stuff?

[00:14:46] Speaker 00:
A lot.

[00:14:47] Speaker 00:
Some of it is about evidence.

[00:14:48] Speaker 00:
Certainly in the pre-spath period, not that much was of it actually about evidence.

[00:14:52] Speaker 00:
The evidentiary rulings were more pertinent in the 2015, 16, 17 period.

[00:14:58] Speaker 04:
If this all hadn't happened, so you said 70 or 80 days, how much more pre-trial work is necessary before trial would begin in this case?

[00:15:09] Speaker 00:
I would have... Do you have any idea?

[00:15:12] Speaker 00:
The major periods, I think there's still some discovery that's being litigated.

[00:15:16] Speaker 00:
The government had not yet provided all of its discovery as of at least September 2017, so I think there's at least some discovery litigation that's left.

[00:15:24] Speaker 04:
Is there a trial date?

[00:15:26] Speaker 00:
No, there was not a trial date at the time.

[00:15:28] Speaker 00:
There was a – I think we still obviously had to do four dear.

[00:15:31] Speaker 00:
There were a lot of motions in Lumine.

[00:15:32] Speaker 00:
Those hadn't been done yet.

[00:15:33] Speaker 04:
I think a handful of other legal motions were still – And when did the military commission proceedings begin against al-Nusra?

[00:15:40] Speaker 00:
So the first round of military commission – so really 2008, the – So we're at the 10-year mark now?

[00:15:47] Speaker 00:
Well, yes, and again, that sounds like an awful lot, but I think it's important to remember what happened over the course of those 10 years.

[00:15:53] Speaker 00:
At least three of those years were spent after they withdrew the charges unilaterally.

[00:15:58] Speaker 00:
The prosecution withdrew the charges unilaterally, and then charged him again in 2011.

[00:16:04] Speaker 00:
The case proceeded in fits and starts, I think, for the next couple of years.

[00:16:08] Speaker 00:
There were about two years of abatement due to two government interlocutory appeals.

[00:16:12] Speaker 00:
There's been about a year.

[00:16:13] Speaker 00:
and change worth of delay based on the current abatement.

[00:16:17] Speaker 00:
So that sounds like an awful lot.

[00:16:21] Speaker 00:
But I would actually even compare our case to, for example, the 9-11 case, which began after ours and has not had these kinds of interruptions.

[00:16:27] Speaker 00:
We have about 11,000 to 12,000 pages of trial record at this point.

[00:16:32] Speaker 00:
The 9-11 case is at least 22,000.

[00:16:33] Speaker 00:
So again, we're dealing with really orders of magnitude difference.

[00:16:38] Speaker 03:
So you referred to the pre-space period.

[00:16:43] Speaker 03:
When did Colonel Faith first enter this case?

[00:16:47] Speaker 00:
He was detailed to preside in July of 2014.

[00:16:49] Speaker 03:
So you are not, I know your broadest relief is to go back to square one, but is your second just to go back to square one?

[00:17:07] Speaker 03:
scrub the space from the record involvement in this case?

[00:17:13] Speaker 00:
Certainly, absolutely.

[00:17:14] Speaker 03:
Then the other one is just going back to the period November 8, 2015.

[00:17:20] Speaker 03:
the date of his application?

[00:17:22] Speaker 00:
I think all three of those are meaningful relief.

[00:17:24] Speaker 00:
And based on any one of these violations, I think this court could look and sort of under the Lillieberg factor say, well, we're not going to vacate to really 2012, but we're going to vacate to either 2014 or sometime in 2015.

[00:17:38] Speaker 00:
If I can point to just a few issues that may arise in that line drawing, I think those are perfectly normal remedies in an average case.

[00:17:46] Speaker 00:
But I think the compound nature of the misconduct here is really significant and should be taken into account by this court when Lilleberg is talking about more modest remedies.

[00:17:56] Speaker 00:
They're talking about inadvertent breaches of the rules of judicial conduct.

[00:17:59] Speaker 00:
These are all deliberate and really quite serious breaches of rules of judicial conduct that go to the integrity of the proceedings.

[00:18:07] Speaker 00:
With respect to his application day in November, we know that he began that process sometime earlier, obviously, because we have letters of recommendation, including from a judge on the CMCR at the time, that predate the actual date of the application.

[00:18:24] Speaker 00:
I think February 2015 is the date of the ruling that he uses as his writing sample.

[00:18:30] Speaker 00:
I think that certainly falls within the sweep of the misconduct here.

[00:18:35] Speaker 00:
I think a probably more conservative remedy would be to simply say, let's remove Spath from the record, which would only go five months before that, six months before that.

[00:18:44] Speaker 03:
So let me press you on one other matter so I'm clear.

[00:18:48] Speaker 03:
In these other cases, the appellate court has been reviewing a trial court.

[00:18:54] Speaker 03:
whose final determinations it normally reviews in the ordinary course of affairs.

[00:19:01] Speaker 03:
Now you're in mandamus before this court in a statutory context where Congress has limited the role of this court as a general matter in terms of reviewing military commission matters.

[00:19:24] Speaker 03:
Is there some other entity that ought to be parsing the details of the record and what needs to be scrubbed other than this court so that even if the writ were to be granted, determining, I realize you could say, well, it'd be all this litigation about that, but I'm just trying to understand where our role

[00:19:52] Speaker 03:
starts, even if we were to agree you're entitled to the writ, then is it you're going back before judge schools or before a substitute for judge schools?

[00:20:07] Speaker 03:
or you're going back to the CMCR?

[00:20:09] Speaker 03:
Is there somebody, some entity in between?

[00:20:12] Speaker 00:
I think the very uncertainty in that question suggests why the default remedy generally is just to vacate proceedings and let cases start afresh without the taint of bias and misconduct that we have here.

[00:20:24] Speaker 00:
Because I think that is a very difficult question.

[00:20:26] Speaker 00:
And ultimately, the burden should be on the government, with respect to honor, to show why

[00:20:32] Speaker 00:
good cause exists to start finding these more fine and parceling remedies.

[00:20:37] Speaker 00:
Because the default reason has good reasons behind it, too.

[00:20:40] Speaker 00:
One is, again, it gives this court the opportunity to speak clearly and directly and concisely at the earliest opportunity.

[00:20:46] Speaker 00:
Because otherwise, the public's faith in the system itself is going to be compromised, as long as there's any whiff of misconduct hanging in the air.

[00:20:53] Speaker 00:
And then if I could also turn to your honor's opinion in Scott, what you talked about, and this comes from Lillyberg, too, is there's a prophylactic value to these kinds of remedies.

[00:21:02] Speaker 00:
Giving a remedy that may seem even extreme under the circumstances, such as vacating an entire multi-year civil litigation, as was the case in Lillebergh, or vacating an attempted murder conviction, as was the case in Scott.

[00:21:17] Speaker 00:
Outright, jury verdict, grand jury all.

[00:21:21] Speaker 00:
sends an important message to the institutional actors to take this issue, to take whatever issues before the court, much more seriously.

[00:21:31] Speaker 00:
And I think if there was ever a case in which that kind of message should be sent, it is this one, where not only did respondents fight us tooth and nail, and even providing discovery, so that when we filed our petition, we didn't have the record we have today.

[00:21:45] Speaker 00:
They, it was only by serendipity that we saw Colonel Spath and Attorney General Sessions in a newspaper photograph celebrating the session of a new class of immigration judges that allowed, that confirmed to us rumors that we had simply heard.

[00:22:03] Speaker 00:
And likewise, it was only the serendipity that a reporter filed a FOIA request that we have the record

[00:22:09] Speaker 00:
that we have in this case, which is a really, by any objective standard, a shocking record.

[00:22:15] Speaker 00:
And ultimately it's even by serendipity that we now know that Colonel Scholes is an appointee on the

[00:22:22] Speaker 00:
as an appointee to be an immigration judge.

[00:22:24] Speaker 00:
She didn't come forward with that information even after this court took up this case, even after this court stayed the proceedings in front of her, even after the FOIA request came out.

[00:22:33] Speaker 00:
And the seriousness of this issue really, I think, came to a head.

[00:22:37] Speaker 00:
So I think the prophylactic value that the default rule serves.

[00:22:40] Speaker 04:
Did you know about that before the 28J letter?

[00:22:43] Speaker 00:
We had heard a rumor, I think at a holiday party, one of our attorneys heard a rumor at a holiday party that Colonel Schools had become an immigration judge.

[00:22:53] Speaker 00:
And so we filed a discovery request with respondents, I think it was a day or two before Christmas, saying,

[00:23:00] Speaker 00:
what's going on.

[00:23:02] Speaker 00:
And then the 28-J letter was the first time I had seen the disclosure, respecting Colonel Sewell's.

[00:23:07] Speaker 00:
And the dates, which I think are also significant, because she applied for this job even before she became the military division judge in this case.

[00:23:15] Speaker 00:
And I would also point to the CMCR's decision, which dealt with this in a summary order and said, we had not even shown, at that point, we knew he was an immigration judge and we knew he had concealed that.

[00:23:23] Speaker 00:
Both clear violations of the canons of judicial conduct and the guide on judicial conduct.

[00:23:29] Speaker 00:
The CMCR said, we hadn't even

[00:23:31] Speaker 00:
shown any evidence to call Colonel Spath's partiality into question.

[00:23:34] Speaker 00:
So I think there is a lack of seriousness, frankly, in how this issue is being dealt with, and this use of judicial conduct and bias more generally.

[00:23:46] Speaker 00:
more about those, but this court certainly has seen in Inray Muhammad and Inray Cotter a number of instances where questions about judicial partiality, the relationship between a judge and the government and the parties, is just not being dealt with carefully.

[00:23:59] Speaker 00:
So if there was ever a case in which the default remedy should be the default, which all the good reasons why the default remedy is the default were in place, we would say it's this one.

[00:24:08] Speaker 00:
I see I've grossly gone over my time, but I would ask if I

[00:24:35] Speaker 03:
Good morning.

[00:24:35] Speaker 01:
Good morning, and may it please the court.

[00:24:37] Speaker 01:
Joseph Palmer for the United States.

[00:24:39] Speaker 01:
The CMCR acted within its discretion when it remanded, without prejudice, petitioners' judicial disqualification claim to be resolved in the first instance by the Military Commission.

[00:24:51] Speaker 01:
This court, as the appellate court two levels up from the Military Commission, should not be the first court to find the facts and to rule on this issue.

[00:25:01] Speaker 01:
Mandamus is an extraordinary remedy.

[00:25:04] Speaker 01:
It's available only when the lower court clearly acts outside its authority.

[00:25:11] Speaker 01:
When a litigant raises a disqualification claim for the first time in an interlocutory appeal, it's within the discretion of the appellate court to decide to remand that claim to the trial level for the initial ruling on the issue.

[00:25:25] Speaker 02:
But hasn't, actually, this panel said in Indray Muhammad that mandamus is appropriate during the pendency of a proceeding.

[00:25:36] Speaker 01:
Mandamus is appropriate.

[00:25:37] Speaker 01:
We're not saying that mandamus is not an appropriate vehicle for a disqualification claim, but when the trial court has not yet ruled on it, it is within the discretion of the intermediate appellate court of the CMCR to say, as it did here, go back to the military commission.

[00:25:54] Speaker 01:
allow the military commission to create a record and to rule on the issue, and if you're unsatisfied with the way the military commission resolves the claim, then come back.

[00:26:03] Speaker 02:
The argument is that there's a taint here, that there's a taint from Judge Space seeking a position with the Department of Justice without letting anyone know, and then a series of decisions that a reasonable observer would look at.

[00:26:18] Speaker 02:
He was

[00:26:19] Speaker 02:
strengthening his application to be an immigration judge.

[00:26:22] Speaker 02:
If we agreed with that assessment of the facts here, wouldn't you admit there's a pretty serious taint to the whole process?

[00:26:33] Speaker 01:
Well, that would remain fully remediable by the CMCR and by this Court.

[00:26:40] Speaker 01:
And we think that it's likely that

[00:26:43] Speaker 01:
if this case were to go back to the military commission, that it would not be Judge Staff or Judge Schools who would ultimately rule on it.

[00:26:51] Speaker 01:
But even if it were, judges rule on decisions regarding their own recusal all the time.

[00:26:58] Speaker 01:
And it's within the discretion of an appellate court to decide, let's hear from the judge himself.

[00:27:04] Speaker 01:
Let's have him explain why he did what he did.

[00:27:06] Speaker 01:
We have here a very experienced military judge.

[00:27:09] Speaker 04:
Who is that judge?

[00:27:11] Speaker 04:
Is that going to be School?

[00:27:14] Speaker 04:
Well, in this case, we think it's likely... Judge, you also applied for a job as an immigration judge?

[00:27:20] Speaker 01:
Yes.

[00:27:21] Speaker 04:
That's who's going to decide this?

[00:27:23] Speaker 01:
No, we think it's unlikely that it would be Judge School.

[00:27:26] Speaker 04:
Well, don't you need to be a little more certain about that?

[00:27:30] Speaker 04:
Because let's come back to that for just a second, okay?

[00:27:34] Speaker 04:
Because that relates to... I want to ask you about...

[00:27:37] Speaker 04:
Al-Nashiri's response to your argument that they should go to the judge first.

[00:27:43] Speaker 04:
The one thing they say is that, look, the CMCR has already said a bunch of things about this issue.

[00:27:52] Speaker 04:
That's going to make it very difficult for a – for the military judge to rule to the contrary.

[00:28:02] Speaker 04:
In the September 28 order, it said, Al-Nashiri has not shown that a reasonable informed observer would find a problem here.

[00:28:12] Speaker 04:
And then in the October 11 opinion, it said other things that would make it extremely difficult, and it's retained jurisdiction over this issue.

[00:28:24] Speaker 04:
So number one, they say, look, under all these circumstances,

[00:28:31] Speaker 04:
no lower court judge, in this case the military judge, is going to be free to take an objective look at this given what the CMCR has already said.

[00:28:39] Speaker 04:
That's one.

[00:28:41] Speaker 04:
So what's your answer to that?

[00:28:43] Speaker 01:
Well, we read the CMCR's action differently, Your Honor.

[00:28:46] Speaker 01:
The CMCR's initial denial of the mandamus petition was on the non-existent record that was then before it.

[00:28:55] Speaker 01:
But the CMCR was most clear in its order of November 2 denying the stay.

[00:29:01] Speaker 01:
when they stated it, and if you'll bear with me.

[00:29:03] Speaker 01:
Sure.

[00:29:04] Speaker 01:
Go ahead.

[00:29:04] Speaker 01:
Our disposition of Omnichiri's prior motion does not foreclose him from making a motion before the military commission seeking the same relief.

[00:29:11] Speaker 01:
If he does and is dissatisfied with the manner in which the new military judge resolves his complaint, Omnichiri is free to seek review in this court through mandamus, if appropriate.

[00:29:21] Speaker 01:
And then, again, on page four of that same order, if Al-Nashiri moves to disqualify Judge Spath, the new judge will decide whether Judge Spath acted inappropriately and will enter an order that is consistent with her finding a decision.

[00:29:33] Speaker 01:
Al-Nashiri is free to ask this court to review the resolution of his motion.

[00:29:37] Speaker 01:
He also is free to ask this court to address issues upon which we have ruled to the extent that the military judge's order may implicate them.

[00:29:43] Speaker 01:
In short, an orderly and substantive adjudication of al-Nashiri's disqualification arguments in the trial and appellate courts not only is the proper way to proceed, it does no harm to al-Nashiri.

[00:29:54] Speaker 04:
So, Your Honor, with that... That brings me back to the question we had earlier, Judge Skool.

[00:30:00] Speaker 04:
How likely is it that a military judge who has also applied

[00:30:05] Speaker 04:
for and received a job as an immigration judge, and never disclosed that, is going to rule that Judge Spathes behavior violated the code of judicial conduct.

[00:30:18] Speaker 04:
I mean, that, right?

[00:30:22] Speaker 04:
How's that gonna happen?

[00:30:23] Speaker 04:
Well, again, in light of Judge School's- I mean, I can understand you saying to us, look, we guarantee you, we're telling the Court of Appeals, the D.C.

[00:30:32] Speaker 04:
Circuit today, it won't be Judge School will be a new judge,

[00:30:35] Speaker 04:
But you're telling us Judge Schoolen might decide this thing.

[00:30:39] Speaker 01:
Yes, we do think that's unlikely in light of her... Well, that's different from saying she's not going to.

[00:30:44] Speaker 01:
Yes, that's true.

[00:30:45] Speaker 01:
But even if it were to be her, even if Judge Spath were still on the bench, we think it's within the discretion of the CMCR to decide, let's hear from that experienced military judge and his explanation of

[00:30:59] Speaker 01:
of why he made the decision he made, whether he consulted with any ethics officials within the Department of Defense, and in general also to create a record on the issue and to make the initial ruling and then the case could come back.

[00:31:14] Speaker 04:
So the second thing they point out is that even if the new judge would consider this, the new judge can't revisit a whole series of very important orders, the 505 orders, that under rule 949,

[00:31:30] Speaker 04:
These ex parte orders regarding evidence are, quote, not subject to a motion for reconsideration by the accused.

[00:31:40] Speaker 04:
So they're saying the new judge couldn't touch that.

[00:31:44] Speaker 01:
The new judge could reconsider those orders on her own motion.

[00:31:48] Speaker 01:
or on the motion of the government.

[00:31:50] Speaker 04:
And we would have every incentive if we were... Oh, you say this is limited to a motion for reconsideration by the accused.

[00:31:56] Speaker 01:
Yes, the rule bars motions by the accused, but it does not bar reconsideration by the judge or by the government's motion.

[00:32:02] Speaker 02:
We would have every incentive to... And would the government make that motion?

[00:32:06] Speaker 02:
Can you tell us here that the government would make that motion?

[00:32:12] Speaker 01:
If we were back in the Military Commission and in the context of

[00:32:16] Speaker 01:
a fashioning of a remedy for a disqualification claim.

[00:32:23] Speaker 01:
which is, again, another reason why a remand would be appropriate here, to enable the military commission judge to consider all these orders and decide whether the disqualification issue can potentially become moot or at least narrowed by reconsideration of the family of orders that are truly still in dispute or that are in closest in connection to the disqualification issue.

[00:32:48] Speaker 01:
And in the event that that's

[00:32:50] Speaker 01:
what we were doing in the military commission, then we would agree that as part of fashioning that remedy, that the orders that are covered by this rule that we're talking about, certain orders concerning classified information, it would be appropriate for the judge to reconsider those as part of fashioning that remedy.

[00:33:12] Speaker 04:
Let's go back to the antecedent question here.

[00:33:17] Speaker 04:
Set aside the question of whether

[00:33:20] Speaker 04:
This is mandamus, so relief has to be clear and indisputable as well as no other form of relief.

[00:33:26] Speaker 04:
What about Alan O'Shea's argument that it's just crystal clear here that Judge Spathes' behavior throughout this whole process violated several well-accepted can of judicial conduct that you, in your brief, don't challenge at all, concede that they are the right ones?

[00:33:46] Speaker 04:
I mean, how do you, what's your best argument

[00:33:50] Speaker 04:
that there's some doubt about Judge Day's behavior.

[00:33:56] Speaker 01:
Your Honor, we don't think there's any controlling case that clearly and indisputably requires a military judge.

[00:34:03] Speaker 04:
That's not the mandamus, Sandra.

[00:34:05] Speaker 04:
But go ahead.

[00:34:06] Speaker 04:
You don't have to find a case right in point.

[00:34:09] Speaker 04:
Is there a case that says that?

[00:34:11] Speaker 01:
No, we agree that there doesn't necessarily have to be a case on point.

[00:34:14] Speaker 04:
So set that aside and tell us

[00:34:17] Speaker 01:
But we don't think there's any clear statement of a controlling rule that governs when a military judge who is seeking another judicial position within the executive branch necessarily requires recusal.

[00:34:30] Speaker 01:
And that's because military judges necessarily already have an employment relationship with the Defense Department and with the military service who are bringing the case.

[00:34:45] Speaker 01:
The impartiality of military judges is not structural.

[00:34:49] Speaker 01:
They don't have tenure.

[00:34:50] Speaker 01:
They're subject to the same personnel procedures that govern other judge advocate military officers.

[00:34:58] Speaker 01:
And that includes involuntary reassignment, promotion boards.

[00:35:05] Speaker 01:
And the Supreme Court in the Weiss case explained, in considering an argument that military judges were

[00:35:15] Speaker 01:
that they needed to have tenure in order to be impartial.

[00:35:18] Speaker 01:
The Supreme Court said that their impartiality is guaranteed not by structural independence, but by provisions of the UCMJ that prohibit anyone from attempting to influence the decision of a judge in a case.

[00:35:30] Speaker 01:
And those provisions apply to military commission judges as well.

[00:35:33] Speaker 01:
And they govern the Department of Justice as much as the Department of the Defense.

[00:35:39] Speaker 01:
And so it's not clear that it automatically creates

[00:35:45] Speaker 01:
a conflict for military judges, when they're inevitably already looking to the Defense Department that has a much closer relationship with the prosecution than the Department of Justice, they're already looking to that department for their next assignment.

[00:35:58] Speaker 01:
And military judges routinely discuss in confidence what their next assignment might be.

[00:36:08] Speaker 01:
They're in a temporary job as military judges.

[00:36:12] Speaker 03:
Judge Tatel's question tried to, I think, did sharpen the question, and I need to be clear about this.

[00:36:21] Speaker 03:
Is the government challenging that Colonel Spath was subject to the ethical standards that counsel recited here this morning in the brief?

[00:36:39] Speaker 03:
As I recall, Judge Tatel's question

[00:36:42] Speaker 03:
said that the government hadn't challenged that.

[00:36:44] Speaker 03:
That's right.

[00:36:45] Speaker 04:
That was my question.

[00:36:46] Speaker 01:
I think that's, we agree that the recusal is governed by the rule of Military Commission 902 that essentially tracks the

[00:36:55] Speaker 01:
Section 455A, recusal language.

[00:36:58] Speaker 01:
But our submission is that those principles need to be construed in light of the fact that it's a military court.

[00:37:04] Speaker 03:
I understand.

[00:37:05] Speaker 03:
And the series of questions that went on as to this particular case, as opposed to, say, Colonel Spath was seeking to be a hearing officer at the hood for the Department of Transportation, Department of Labor, this is where the attorney general

[00:37:24] Speaker 03:
himself had been directly involved.

[00:37:29] Speaker 03:
And his employees were directly before the judge.

[00:37:38] Speaker 03:
That's why I want to be clear, because I thought your latest answer suggests that military judges are not subject to what I'll call the 455 standard

[00:37:51] Speaker 01:
Yes, we agree that they're subject to the standard, but that whether an application creates a conflict needs to be understood in light of the fact that military judges are already employees in the executive branch and that they're looking to the Defense Department for a follow-on assignment.

[00:38:12] Speaker 04:
So your argument is that all of the evidence that they've

[00:38:18] Speaker 04:
put forward about his application for a job in the Justice Department and the Attorney General's actions.

[00:38:28] Speaker 04:
That's all irrelevant because this is just a DOD question, right?

[00:38:33] Speaker 04:
And that a reasonable person, knowing all the circumstances, would understand that.

[00:38:36] Speaker 04:
Is that your point?

[00:38:39] Speaker 01:
We think that that's

[00:38:41] Speaker 01:
that it does need to be understood in light of the military court system and that's why this court would benefit from the application of the military expertise of the Military Commission and the CMCR to the question of how these recusal standards work within the military and that their impartiality is primarily protected not by structural independence but by unlawful influence provisions.

[00:39:06] Speaker 04:
When I read your brief, what I understood was your argument is this is DOD, not DOJ.

[00:39:12] Speaker 04:
But the fact is that the Justice Department is not as walled off from these proceedings as the impression I got from first reading your brief.

[00:39:23] Speaker 04:
I'll give you just two examples.

[00:39:27] Speaker 04:
The Military Commission Act itself, I found two references to the role of the Attorney General.

[00:39:32] Speaker 04:
949A,

[00:39:35] Speaker 04:
says that, quote, the Secretary of Defense, in consultation with the Attorney General, may make exceptions, and then it goes on to talk about procedures that they can do together.

[00:39:47] Speaker 04:
And then 950H says, Appellate Counsel appointed under the Department of Defense Regulations may, when requested to do so by the Attorney General,

[00:40:02] Speaker 04:
represent the United States before the U.S.

[00:40:04] Speaker 04:
Court of Appeals for the District of Columbia Circuit or Supreme Court.

[00:40:08] Speaker 04:
So under the statute, you've got the attorney general involved at the beginning in the way they set up the procedures and at the end of the process in terms of authorizing counsel.

[00:40:19] Speaker 04:
So it's not as walled off as you suggest in your brief here.

[00:40:26] Speaker 04:
Justice seems to be very much involved statutorily in the military commission process, and therefore,

[00:40:33] Speaker 04:
al-Nashiri says, Judge Spathes' interactions with the Justice Department are deeply relevant to whether or not he's impartial.

[00:40:46] Speaker 01:
We're not disputing that the Attorney General and the Justice Department have some involvement in the military.

[00:40:51] Speaker 01:
Well, not some.

[00:40:52] Speaker 01:
It's pretty significant.

[00:40:54] Speaker 01:
But go ahead.

[00:40:55] Speaker 01:
But our submission is that

[00:40:58] Speaker 01:
Whatever level that involvement is, it's much less than the Defense Department.

[00:41:03] Speaker 01:
And yet the military judges are employees of the Defense Department.

[00:41:06] Speaker 01:
And they're seeking further assignment.

[00:41:09] Speaker 04:
We're talking about an appearance of impropriety, right?

[00:41:11] Speaker 04:
That's the standard.

[00:41:13] Speaker 04:
And the appearance standard requires what would a reasonable person, knowing all the circumstances that could be obtained reasonably, think?

[00:41:22] Speaker 04:
And is it your position that a reasonable person, knowing

[00:41:27] Speaker 04:
about the involvement of the Justice Department statutorily in the military commission proceedings, and also knowing about Judge Spathes' application for a job, that a reasonable person – and this is an objective standard – wouldn't have some doubts about his impartiality.

[00:41:50] Speaker 01:
We think that a reasonable person needs to be informed about the relevant facts and circumstances, which include the reality that military judges are not protected by structural independence of the executive branch, but instead by unlawful influence provisions.

[00:42:07] Speaker 01:
So you're saying this goes on all the time?

[00:42:11] Speaker 01:
Well, Your Honor.

[00:42:15] Speaker 01:
Not necessarily, but only our submission really just is that what does go on all the time.

[00:42:19] Speaker 02:
But if it did go on all the time, it's OK.

[00:42:22] Speaker 01:
What does go on all the time is that military judges don't have tenure.

[00:42:26] Speaker 01:
And they're in a temporary assignment.

[00:42:28] Speaker 02:
I want to know, does this go on all the time, what Judge Spath did?

[00:42:35] Speaker 02:
Applying for jobs with the Justice Department while Justice Department lawyers are appearing in his court.

[00:42:44] Speaker 02:
while he's making decisions that would be seen by the Justice Department while he's applying for position there, does that go on all the time, or is this an unusual circumstance that we have here?

[00:42:54] Speaker 01:
I think it's fair to say that it's an unusual circumstance simply because ordinarily in a court-martial case, there isn't this involvement of the Justice Department that happens in the Military Commission.

[00:43:07] Speaker 02:
That seems to me to be a rather significant concession that you just made.

[00:43:12] Speaker 01:
But I would say what makes this case, the answer, unclear is that the relationship between the Executive Office of Immigration Review and the immigration judge position for which Judge Spath applied for isn't a kind of direct involvement in the military commission system.

[00:43:29] Speaker 01:
There's no relationship there.

[00:43:32] Speaker 01:
And a reasonable person, I don't think, would think that the decision about whether Judge Spath would be

[00:43:40] Speaker 01:
appointed as an immigration judge in a judicial position, where he's expected to be independent, would turn on his rendering favorable rulings for the government and the military.

[00:43:51] Speaker 04:
But when he applied for the job, I just want to describe some of the evidence that troubles me here.

[00:43:58] Speaker 04:
When he applied for the job, he used as part of his application the work he was doing as a military judge in this very case.

[00:44:08] Speaker 04:
And I assume you would agree that a reasonable person, knowing all the circumstances, would know that also, right?

[00:44:15] Speaker 01:
Yes, that's part of the circumstances.

[00:44:16] Speaker 04:
Yeah.

[00:44:17] Speaker 04:
And also, let me just give you one other example.

[00:44:20] Speaker 04:
Not only did, and I'm just describing the evidence I see in the record here, not only did he do that, but he never disclosed to the parties in all the months that

[00:44:35] Speaker 04:
he was negotiating with the Justice Department about his job.

[00:44:38] Speaker 04:
He never disclosed that fact.

[00:44:42] Speaker 04:
On February 15th, the Justice Department offers Judge Stathis start date, finally, after months of negotiation.

[00:44:56] Speaker 04:
Next day, he abates the proceedings and says, gee,

[00:45:02] Speaker 04:
It may be time, I'm really frustrated with these proceedings, it may be time for me to retire.

[00:45:06] Speaker 04:
I'll let you know soon.

[00:45:07] Speaker 04:
He's been talking about retirement for years and never disclosed that to anybody.

[00:45:13] Speaker 04:
I just don't see, I get your argument about DOJ being different from DOD and some of you otherwise, but if you're just applying the standards of judicial behavior, which you agree in your brief apply here, I just don't see how that

[00:45:32] Speaker 04:
passes the Snell test.

[00:45:35] Speaker 01:
Well, Your Honor, Judge Spath's application did include an order from the military admission case, but it was an order that highlighted his independence and that was adverse to the government in which he abated the case because he felt like the convening authority was potentially attempting to unlawfully influence him.

[00:45:56] Speaker 01:
And we think that his

[00:46:00] Speaker 01:
references to his military commission and his other judicial service on the Air Force court were meant to show that he was an experienced and independent judge, and wouldn't clearly and indisputably raise in the minds of an objective.

[00:46:11] Speaker 04:
This is an objective standard.

[00:46:13] Speaker 04:
I hear your point about his motives may have been totally pure.

[00:46:18] Speaker 04:
He may have been trying to show that he was an experienced judge.

[00:46:22] Speaker 04:
It's an objective standard.

[00:46:23] Speaker 04:
We have to look at this objectively.

[00:46:25] Speaker 04:
What would a reasonable person think, right?

[00:46:29] Speaker 04:
Next question.

[00:46:32] Speaker 01:
Yes, so we think that his application, his experience,

[00:46:38] Speaker 01:
was designed to show his independence.

[00:46:41] Speaker 01:
And he was applying for a judicial position, not to be a prosecutor in the Justice Department or an attorney who would represent zealously someone's interests, but instead another judicial position.

[00:46:51] Speaker 01:
And we don't think that there's a case or practices of judges recusing themselves in analogous circumstances.

[00:46:58] Speaker 01:
For example, judges are often considered for positions within the executive branch, including capital.

[00:47:04] Speaker 02:
How many of those cases involve the death penalty?

[00:47:07] Speaker 02:
And how does that factor into our approach here?

[00:47:15] Speaker 01:
I can only think of one capital case.

[00:47:17] Speaker 01:
That's the Ninth Circuit case in Mikell, where the judge put his name forward for a position as the US attorney in the district that was prosecuting the case.

[00:47:28] Speaker 01:
Now, there's important differences there.

[00:47:30] Speaker 01:
The judge ended up disclosing and withdrawing his application.

[00:47:34] Speaker 01:
That's a significant difference.

[00:47:36] Speaker 01:
Yes.

[00:47:37] Speaker 04:
Could you say what you said again about judges seeking jobs in the executive branch?

[00:47:42] Speaker 01:
Well, it's common for judges to be considered for positions within the executive branch.

[00:47:47] Speaker 04:
And there doesn't appear to be cases or a practice of judges recusing them under... I can tell you what many of us think about that, which is that an inquiry from the executive branch to any one of us about our interest in a job would cause an immediate recusal.

[00:48:07] Speaker 04:
I mean, if the executive branch wants to offer a judge a job, they offer the job, period.

[00:48:12] Speaker 04:
End of matter.

[00:48:13] Speaker 04:
I don't know that judges are doing that.

[00:48:17] Speaker 04:
I certainly wouldn't do it, and I don't think most of my colleagues would.

[00:48:23] Speaker 01:
Well, I'm just relying, Your Honor, on the fact that judges often

[00:48:29] Speaker 01:
become take-up positions in the executive branch or higher positions in the judiciary, and we're unaware of cases for a standard practice of recusal where judges say, I'm being considered for elevation to the Ninth Circuit, and so I'm going to recuse myself now from all cases involving the government in my court.

[00:48:48] Speaker 04:
Let me ask you a totally hypothetical question.

[00:48:52] Speaker 04:
Suppose we think we need to grant this writ and that

[00:48:59] Speaker 04:
So what's your view about the remedy?

[00:49:02] Speaker 04:
If we were going to vacate orders issued by Judge Stath post-November, what is it, 2013?

[00:49:14] Speaker 01:
2015.

[00:49:14] Speaker 04:
Yeah.

[00:49:14] Speaker 01:
What's your view about that?

[00:49:16] Speaker 01:
Well, we think that in that hypothetical circumstance, the court should

[00:49:21] Speaker 01:
allow the military commission and the CMCR to fashion tailored remedy.

[00:49:25] Speaker 01:
We dispute the opponent's contention that the standard or default remedy is to vacate everything that a judge did.

[00:49:33] Speaker 01:
This court in Microsoft didn't do that.

[00:49:36] Speaker 01:
And it referred to that kind of retroactive blanket vacator of everything as a draconian remedy.

[00:49:42] Speaker 01:
And it's appropriate in this circumstance to allow the military commission to tailor a more narrow remedy that would

[00:49:52] Speaker 01:
reconsider, if necessary, orders that are truly in dispute, or narrow the category of orders down to those that are closest to... Would it be the MCMR?

[00:50:04] Speaker 01:
The CMCR, Your Honor.

[00:50:09] Speaker 01:
Our view is that it should be the Military Commission in the first instance, followed by a review by the CMCR, followed by a review by this Court.

[00:50:16] Speaker 01:
This Court sits two levels up.

[00:50:19] Speaker 01:
Neither Court below has yet

[00:50:21] Speaker 01:
issued a ruling on the question.

[00:50:23] Speaker 01:
And in that circumstance, mandamus is inappropriate because mandamus is designed to confine a lower court.

[00:50:29] Speaker 04:
You're going back to your basic argument.

[00:50:30] Speaker 04:
Just the relief.

[00:50:31] Speaker 04:
So you would want us, if we happen to disagree with you, to send this to the military judge.

[00:50:42] Speaker 04:
to decide which orders to leave in place and which ones to vacate, right?

[00:50:47] Speaker 01:
Yes, and or which ones to reconsider in an effort to create an appropriate remedy.

[00:50:53] Speaker 04:
And you're telling us that that judge could reconsider every order, including the ones involving ex parte submissions, right?

[00:51:01] Speaker 00:
Yes.

[00:51:05] Speaker 03:
We could tailor it that it should be someone other than Judge Scholes.

[00:51:12] Speaker 01:
We think it is likely that it will be someone other than Judge Schools.

[00:51:16] Speaker 01:
But that it wouldn't be outside the discretion of the CMCR to let Judge Schools have the first.

[00:51:23] Speaker 03:
No, I understand that.

[00:51:24] Speaker 03:
And you're not able to make that commitment.

[00:51:27] Speaker 03:
Apparently, you weren't authorized to make that commitment before this court.

[00:51:30] Speaker 01:
Well, what we have committed, Your Honor, is that if her retirement is approved, that we would not oppose a motion to reassign the case to a different military direction.

[00:51:38] Speaker 04:
Well, would you have to?

[00:51:40] Speaker 04:
I mean, if she retires.

[00:51:42] Speaker 04:
You need another judge, right?

[00:51:43] Speaker 01:
Yes.

[00:51:44] Speaker 04:
OK, so that's not a big concession.

[00:51:47] Speaker 01:
Well, it's a concession to bring it forward whenever the retirement would be.

[00:51:50] Speaker 04:
OK, I see.

[00:51:51] Speaker 04:
So what's unknown about her now is that she has an offer but no start date?

[00:51:57] Speaker 04:
Is that where that's coming from?

[00:51:59] Speaker 01:
I think what's unknown is, at least to us, Your Honor, is the

[00:52:05] Speaker 01:
the Air Force must approve the retirement.

[00:52:07] Speaker 01:
And as far as we're aware, we don't know whether that's taken place or not.

[00:52:13] Speaker 01:
And the assignment of military judge is something where that is a role that's played by the chief judge of the Military Commission Judiciary, and the prosecution doesn't have influence or control institutionally over the judges that are assigned.

[00:52:34] Speaker 01:
But our primary submission really is that the lower court acted within its discretion in not reaching the merits of the issue yet.

[00:52:43] Speaker 01:
Neither court below has actually ruled on the case.

[00:52:47] Speaker 01:
And that means mandamus is inappropriate because mandamus is where the court says the lower court failed in its responsibility.

[00:52:56] Speaker 01:
It did something it wasn't authorized to do.

[00:52:57] Speaker 04:
That's true with everything except for

[00:53:03] Speaker 04:
appearance issues.

[00:53:05] Speaker 01:
Appearance issues are an exception.

[00:53:13] Speaker 01:
constitute irreparable injury.

[00:53:15] Speaker 01:
But it doesn't relieve the normal mandamus standard, which is that a lower court must take an action that it was not authorized to take.

[00:53:26] Speaker 01:
And when there's an intermediate appellate court, that all it did was say, let's have the trial court decide this first when there's no record before us.

[00:53:35] Speaker 01:
If you're unhappy with how the trial court resolves that question, come back.

[00:53:39] Speaker 01:
When the intermediate appellate court does that, it hasn't acted without – outside of its discretion, and mandating the submission.

[00:53:46] Speaker 04:
Let me read you a sentence from our opinion in Cobell.

[00:53:51] Speaker 04:
When the relief sought is the recusal of a judicial officer, the injury suffered by a party required to complete judicial proceedings overseen by that officer is by itself irreparable.

[00:54:05] Speaker 04:
And the stay in our case, that's like law of the case right now, right?

[00:54:08] Speaker 04:
I mean, we've basically said that the injury is just the existing irreparable injury in this case is binding law.

[00:54:17] Speaker 04:
Is law the case?

[00:54:19] Speaker 01:
We agree with that, Your Honor, and that's the argument for why the issue shouldn't have to await final judgment.

[00:54:26] Speaker 01:
But what's before the court now is there hasn't been even an initial ruling on interlocutory review.

[00:54:32] Speaker 01:
I see.

[00:54:34] Speaker 01:
The intermediate appellate court is permitted to decide, let's have the military commission decide this issue.

[00:54:40] Speaker 01:
Let's hear from Colonel Spath, an experienced military judge, about what happened below.

[00:54:46] Speaker 01:
Let's let them apply their military expertise to the different situation of military judges within the executive branch.

[00:54:54] Speaker 01:
come back and will rule in the orderly, the ordinary course of appeals, which is that issues are decided at the trial level, then by the CMCR, and only then does this court's review take place.

[00:55:07] Speaker 05:
All right, now.

[00:55:13] Speaker 03:
All right, counsel, the petitioner, you get a couple of minutes.

[00:55:20] Speaker 00:
Thank you, Your Honor.

[00:55:22] Speaker 00:
If I may just respond to a few points as quickly as possible.

[00:55:27] Speaker 00:
We take strong exception to their characterization of military judges as somehow subject to lesser ethical standards than ordinary judges.

[00:55:35] Speaker 00:
And if I can read just one quote from the Court of Appeals for the Armed Forces.

[00:55:39] Speaker 00:
And this is in the Roche case.

[00:55:41] Speaker 00:
We cited at page 26 of our reply brief, page 2169, MJ 21,

[00:55:46] Speaker 00:
The appearance of impartiality may be especially important in the military justice context, and we would say that's correct precisely because the structural insulation is not present.

[00:55:56] Speaker 00:
We have to rely on military commission judges in these high-profile capital cases to make decisions that are going to be unpopular to the government, and the public cannot have doubts about their financial interests interfering with their ability to be just.

[00:56:11] Speaker 00:
Going to the clarity of the rules, if I may just quickly iterate, and I apologize if this is too quick, but I'd like to get these out.

[00:56:20] Speaker 00:
With respect to his failure to disclose, indeed, active concealment of his conduct, we would point to Canon of Judicial Conduct 3D, as well as Rule of Military Commission 902D1, and the discussion which talks about the importance of disclosing facts that may call one's impartiality into account.

[00:56:38] Speaker 00:
The Supreme Court's decision in common multicodings

[00:56:41] Speaker 00:
which is an arbitration case, not an arbitrator's.

[00:56:44] Speaker 02:
What do you do with your friend's argument that this hasn't been adequately argued or decided at the trial court or the appellate court that we're at the wrong place to be making these arguments right now?

[00:56:56] Speaker 00:
Sure.

[00:56:56] Speaker 00:
So in this way, we do disagree about what happened at the CMCR.

[00:56:59] Speaker 00:
The fact that the CMCR, once this court appeared ready to enter a stay, attempted to backtrack and muddy the record, I think doesn't detract from the fact

[00:57:06] Speaker 00:
that they did rule quite squarely, and if I may read your honor, just one other quote with your indulgence, is the government's argument.

[00:57:17] Speaker 00:
They spent about a page and a half to two pages of their brief in the CMCR saying that it should be sent down to the Military Commission.

[00:57:22] Speaker 00:
The rest of their 20-page brief was dedicated to the merits, the same merits we've discussed today, and they argued that those merits

[00:57:29] Speaker 00:
would not cause a reasonable person knowing all the relevant facts to question Judge Spath's impartiality.

[00:57:36] Speaker 00:
And it seems you are ruling in a summary order, so we have to assume that the, under OB, we assume... Without all the facts that you're alleging now.

[00:57:44] Speaker 02:
That's the difference.

[00:57:46] Speaker 00:
Not all the facts, but the crucial facts.

[00:57:47] Speaker 00:
The facts that he had sought disappointment from the Attorney General, that he had received it, and that he had concealed that fact.

[00:57:53] Speaker 00:
Those facts were not in dispute when we filed our petition.

[00:57:58] Speaker 00:
The subsequent record facts, which are now part of the record,

[00:58:00] Speaker 00:
from the FOIA documents only, I think, make the misconduct here that more egregious.

[00:58:07] Speaker 00:
And I would also, say, speak to why the rules regarding post-judicial employment are so clear and were so clearly, per se, violated.

[00:58:15] Speaker 00:
The very policy considerations about the worry of developing these financial ties and having that influence one's hand.

[00:58:21] Speaker 02:
But don't you agree that is a distinction that could be made?

[00:58:23] Speaker 00:
It's a distinction that could be made, but it's not a relevant distinction, we would say, for the purposes of this Court's review, particularly in terms of

[00:58:30] Speaker 00:
restoring the public's faith in the credibility of these proceedings.

[00:58:35] Speaker 00:
If I might, with Your Honor's indulgence, just iterate quickly through these.

[00:58:40] Speaker 00:
In seeking post-judicial employment, we would point to 902B5A of the Rules of Military Commissions, which is basically comparable to Canon 3C1C of the Rules of Judicial Conduct

[00:58:54] Speaker 00:
with trading on one's judicial position, which is what his application clearly did, the Canon 2B, and then allowing outside influences to interfere with his handling in a case, particularly financial interests.

[00:59:09] Speaker 00:
Obviously, Toomey versus Ohio, as well as Canon 3 of the Rules of Judicial Conduct,

[00:59:14] Speaker 00:
And to the extent, just responding to Your Honor's question as well, a point my friend made, you know, why we should go to the Military Commission.

[00:59:23] Speaker 00:
The only fact that they seem to dispute is what was in Colonel Spath's mind.

[00:59:28] Speaker 00:
They say that we're going to have some sort of hearing where he testifies about what he did and why he did it.

[00:59:35] Speaker 00:
First of all, I don't think that would improve the public reputation of these proceedings.

[00:59:39] Speaker 00:
But second of all, that is completely irrelevant.

[00:59:41] Speaker 00:
It's not a subjective test.

[00:59:43] Speaker 00:
We don't dig into judges' minds.

[00:59:45] Speaker 00:
It's an objective test about what the public would reasonably believe.

[00:59:52] Speaker 04:
When I asked counsel about these 505 orders that Judge Spath entered, you've identified about, I don't know, 20 or 30 of them since November.

[01:00:04] Speaker 04:
He said the judge could vacate those.

[01:00:06] Speaker 04:
Do you agree with that?

[01:00:07] Speaker 00:
I think that's probably a strange reading of the rule.

[01:00:12] Speaker 00:
I understand why they want to make that concession here, but certainly that wasn't our impression reading the statute.

[01:00:17] Speaker 04:
But doesn't the rule say not subject to reconsideration on motion of the accused?

[01:00:22] Speaker 04:
Isn't that what it says?

[01:00:23] Speaker 00:
Yes, and as I understand the proceedings below that the government contemplates, is that we would say, because of misconduct, we ask you to reconsider X, Y, and Z rulings.

[01:00:33] Speaker 00:
That's the sort of the half measure, or quarter measure, we would say, that they're asking to try and remove the taint of these proceedings.

[01:00:40] Speaker 00:
I think a plain reading would view that as us seeking to reconsider a ruling, specifically a 505 ruling.

[01:00:47] Speaker 00:
They sort of suggested, well, the judge may... I see.

[01:00:50] Speaker 00:
unilaterally do that, and we don't dispute that necessarily, but I just wanted to be clear about what we understand, at least the rules.

[01:00:56] Speaker 04:
I interrupted you when you said finally.

[01:00:58] Speaker 00:
I apologize.

[01:01:02] Speaker 00:
But I would say that finally, all these very complicated and hard questions that we talked about and that you spoke about with my friend are precisely why vacator is the default rule.

[01:01:11] Speaker 00:
Lillebergh talks about circumstances where that default rule of vacating the proceedings is not appropriate.

[01:01:17] Speaker 00:
Here we're dealing with only pretrial proceedings.

[01:01:19] Speaker 00:
No jury has been impaneled.

[01:01:21] Speaker 00:
No verdict has been reached in these proceedings if there is no risk of taint and error in these proceedings.

[01:01:27] Speaker 00:
This court will have much more faith in the record that ultimately comes up on appeal if we have not had to spend months, maybe years, trying to remove the impact of that taint in this capital case.

[01:01:37] Speaker 00:
And finally, I would simply say that the importance to... I hope it's rare.

[01:01:45] Speaker 00:
To your question to my friend about whether military commission judges or military judges are doing this all the time, I hope it's rare, but the clearest way to ensure it's rare is if this court vacates the proceedings below and sends a clear message that this kind of misconduct is not acceptable in the American judiciary.

[01:02:02] Speaker 00:
Thank you.

[01:02:08] Speaker 04:
Mr. Palmer, I just have one question.

[01:02:11] Speaker 04:
I'm sorry, I forgot to ask you this before.

[01:02:13] Speaker 04:
But it relates to your argument is that it relates to the FOIA documents.

[01:02:18] Speaker 04:
And you say, look, we need to remand this because we don't have the facts, right?

[01:02:24] Speaker 04:
That's why you had a trial judge.

[01:02:25] Speaker 04:
But are there any facts we don't know that we need to know to decide this case?

[01:02:35] Speaker 01:
Your Honor, I think the record would benefit both from the application of the military expertise to those facts.

[01:02:43] Speaker 04:
I understand that point.

[01:02:44] Speaker 04:
I was asking a different question.

[01:02:46] Speaker 04:
I agree, I hear what you're saying about that.

[01:02:48] Speaker 04:
But I didn't understand, you're not, I didn't see you challenging any, true, these documents came in

[01:02:55] Speaker 04:
through FOIA requests.

[01:02:57] Speaker 04:
They're not officially in the record.

[01:02:59] Speaker 04:
But I didn't hear the government challenging the authenticity of any of the facts.

[01:03:04] Speaker 01:
That's correct.

[01:03:05] Speaker 01:
We haven't challenged the authenticity of the documents, but we think a factual hearing at which Judge Spath could explain would

[01:03:15] Speaker 01:
bring additional facts and his military experience and the military expertise of the courts that considered the issue.

[01:03:22] Speaker 03:
Let me be clear, though.

[01:03:23] Speaker 03:
Judge Tatel was asking, as I understood it, was the government disputing any facts?

[01:03:29] Speaker 03:
Your response was the government is not disputing the authenticity of the document, which to me is a different

[01:03:38] Speaker 03:
I mean, these were documents produced during, in response to the FOIA request.

[01:03:44] Speaker 03:
They came from certain agencies, et cetera.

[01:03:48] Speaker 03:
But I thought Judge Taylor's question was going to the facts that are in those documents.

[01:03:55] Speaker 01:
Well, I don't know how to ... Distinguish our ... Stipulate to ... Well, it's something you disagree with.

[01:04:05] Speaker 03:
That's what we're getting at.

[01:04:07] Speaker 01:
We don't dispute the basic facts that are set out in the documents.

[01:04:11] Speaker 01:
I don't want to say that everything that might be referred to or that the defendants have said is necessarily true or false.

[01:04:16] Speaker 01:
Our primary submission is that that should take place, not for the first time on appeal, but in the military.

[01:04:22] Speaker 04:
OK.

[01:04:23] Speaker 04:
Let me just one more question.

[01:04:25] Speaker 04:
So I hear your point that, I get your point

[01:04:30] Speaker 04:
the process might benefit from a military judge looking at these facts first.

[01:04:37] Speaker 04:
But you also said in response to my question that that military judge could hear testimony from Judge Spath.

[01:04:44] Speaker 04:
Since we all agree, and you do in your brief, that this is an objective standard, why do we need that testimony?

[01:04:54] Speaker 04:
It's an objective standard.

[01:04:55] Speaker 04:
It doesn't really make any difference what was in his mind.

[01:04:59] Speaker 04:
if we all agree on the facts.

[01:05:02] Speaker 01:
But I think part of the facts might be his explanation of how things work with respect to military judges and why it was appropriate for him to, when seeking another judicial appointment, to emphasize his

[01:05:23] Speaker 01:
experience and independence as a judge, but that there wasn't any implication either intended by him or objectively to suggest that... Well, he can't testify about the objective side.

[01:05:38] Speaker 04:
I guess my question goes this way, and then we're way over time, but that's my fault, not yours.

[01:05:44] Speaker 04:
Let's assume that he testifies in convincing way, that this is the way things are done in the military and that he was simply trying to

[01:05:53] Speaker 04:
explain to the Justice Department that he could really be a good judge.

[01:05:58] Speaker 04:
This was totally innocent.

[01:06:00] Speaker 04:
What's that got to do with how we apply the objective standard?

[01:06:04] Speaker 01:
Because I think the realities of the military personnel system and the fact that judges in the military are their independence comes from not from structural independence of the executive branch but from unlawful influence provisions is relevant to the

[01:06:23] Speaker 03:
objective view of the circumstances here.