[00:00:00] Speaker 01: Good morning. [00:00:15] Speaker 04: Good morning, Your Honor. [00:00:19] Speaker 04: Matthew Hellman for the petitioners and thank you and may it please the court. [00:00:24] Speaker 04: General John Baker is the second highest-ranking lawyer in the Marine Corps. [00:00:30] Speaker 04: Military Commission Rule 505 expressly gives him the authority to excuse Assistant Defense Counsel upon their application for withdrawal. [00:00:40] Speaker 04: The Secretary of Defense, charged with administering those rules, amended that rule to remove the express prior requirement that military judges must approve excusals. [00:00:50] Speaker 04: When the military commission overrode the general's determination in this case, it exercised the power that it did not have, and it forced petitioners to engage in a representation from which General Baker concluded they were entitled to withdraw from. [00:01:04] Speaker 04: Mandamus is the appropriate remedy, and that's for that violation. [00:01:09] Speaker 04: I want to make three points today in that regard. [00:01:12] Speaker 04: First, the text, structure, and history of Rule 505, unmistakably, that's what happened. [00:01:18] Speaker 05: Please. [00:01:18] Speaker 05: Can I ask something sort of preliminary? [00:01:20] Speaker 05: Is it my understanding that Mr. al-Nashiri has a new defense team in place? [00:01:26] Speaker 04: My understanding is that additional members have joined that team, but that's... Why this dispute then? [00:01:33] Speaker 05: Is there any sense that Spears and Ali-Adi are going to be forced to go back there? [00:01:39] Speaker 05: There's a new team. [00:01:41] Speaker 05: Well, and I understood the government to – Are you just asking for an advisory opinion here, that we weigh in on the way these two authorities interact? [00:01:51] Speaker 05: I appreciate – When we don't need to, because there's a new defense team in place? [00:01:54] Speaker 04: I appreciate the question, and the government's brief in this case suggested, in fact, that it might even support that subsequent motion to withdraw. [00:02:02] Speaker 04: However, that would not provide the relief that we are seeking in this case for two very important reasons. [00:02:08] Speaker 04: Of course, obviously, our contention to this court is that it is General Baker as chief defense counsel who is the decider, but even moving beyond that, if, as I understand it, what the government is suggesting [00:02:19] Speaker 04: go back to the military commission, and then the military commission determines that petitioners here are superfluous to the representation, that would leave in place all of the findings and orders by the military commission and by the CMCR which affirmed it that petitioners acted lawfully, that they face professional sanctions for their conduct. [00:02:40] Speaker 04: There is a pending motion unresolved [00:02:44] Speaker 04: for sanctions, disbarment from the military-communical bar, which would have the effect of causing petitioners to lose their clearance, which would have the effect of petitioners' – [00:02:55] Speaker 05: I understand the gravamen of the relief you're seeking is that you don't want them to be forced to go back to represent Mr. al-Nashiri. [00:03:04] Speaker 05: And if that's not going to happen, why would we need to get to any of the other issues? [00:03:10] Speaker 04: It is certainly the result that we are seeking. [00:03:13] Speaker 04: But if that result happens without the vacatur, without recognition by an order from this court, relief from this court, [00:03:22] Speaker 04: clarifying or correcting, I should say, the CMCR's determination that petitioners acted unlawfully when this all happened, that they could be subject to sanctions which are pending and unresolved. [00:03:34] Speaker 04: If it goes back just today on the ground that today it's superfluous, today it was unnecessary – and by the way, their representation was not necessary to the defense even at the time – but what's on the record today are findings, repeated statements by the military judge, the petitioners acted unlawfully, which could have – and of course, we would dispute that they should – but absolutely could have [00:03:55] Speaker 05: serious professional consequences that we're putting in place? [00:04:09] Speaker 04: As I understand it, if this court were to grant everything that petitioners in the subsequent case are asking for, a vacatur of all of the military commission's orders, a vacatur of the CMCR's view of that order, as are considered. [00:04:23] Speaker 05: How about the vacatur of the orders by Judge Spath after he applied for the Department of Justice position? [00:04:32] Speaker 05: Not as broad as you're talking about. [00:04:33] Speaker 05: I think that they're asking for that in the alternative. [00:04:38] Speaker 04: The intermediate positions that petitioners are asking for do not give the relief that we would need to make this case as I understand it. [00:04:51] Speaker 04: I would concede that if this court were to say that everything that Judge Spath did regarding [00:04:57] Speaker 04: petitioners were vacated, the CMCR's orders regarding that were also vacated, and General Baker's order excusing the petitioners remained in place. [00:05:08] Speaker 04: I believe that would give us what we were looking for, but that is – we really need petitioners to get everything they're looking for in the subsequent case, and that to be the case. [00:05:21] Speaker 03: No, just to continue a little bit on Judge Griffith's question, couldn't you – the government's argument is the new military judge can provide – you need to ask the new military judge first. [00:05:40] Speaker 04: Yes. [00:05:42] Speaker 03: So why couldn't you ask the new military judge also to – in addition to ruling in favor of your clients also [00:05:51] Speaker 03: a.k.a. [00:05:52] Speaker 03: the orders that you're worried about? [00:05:56] Speaker 04: A couple of reasons. [00:05:57] Speaker 04: First of all, although the government has suggested it might agree that we are superfluous today, I've seen nothing from the government that would suggest that the orders of the military commission resting on other grounds that we acted unlawfully. [00:06:09] Speaker 03: Right, but your point is you could make that argument to the military judge. [00:06:14] Speaker 04: We could make that argument to the military judge, but the CMCR, the appellate body there, has already held [00:06:20] Speaker 04: that what Judge Stafford was correct, and it's that ruling that brings us here today. [00:06:27] Speaker 04: So I do – I appreciate – we recognize that mandamus is an extraordinary remedy, but mandamus is the appropriate remedy where there is coercion. [00:06:37] Speaker 04: And here, because of how the cases come to this court, there are collateral consequences that will not go away. [00:06:42] Speaker 04: will not go away. [00:06:43] Speaker 04: We do not have adequate alternative means simply by going back to the commission today and saying today, Your Honor, we are superfluous. [00:06:51] Speaker 04: That will not, at page 389 of the underlying record, there is a pending motion to disbar which rests on the predicate findings that would not be disturbed under the course that Your Honor has suggested. [00:07:08] Speaker 03: Now. [00:07:08] Speaker 03: Okay, would you want to go ahead and make your argument then about [00:07:12] Speaker 03: plain language of the statute. [00:07:13] Speaker 04: Absolutely. [00:07:14] Speaker 04: Thank you. [00:07:14] Speaker 04: Thank you, Your Honor. [00:07:15] Speaker 04: 505 – rule 505 D2B says who is the decider when councils seek to withdraw. [00:07:27] Speaker 04: And the answer to that question is the chief defense counsel. [00:07:31] Speaker 04: And the chief defense counsel is not a mere [00:07:34] Speaker 04: in the government. [00:07:35] Speaker 04: This is a position created by Congress, held by a high-ranking general whose job is not to be an advocate. [00:07:42] Speaker 04: The Chief Defense Counsel is not like the U.S. [00:07:44] Speaker 04: attorney who is essentially the lead attorney on any prosecution the government brings. [00:07:49] Speaker 04: The Chief Defense Counsel's job is to supervise, facilitate, and supervise and facilitate the representation of defendants in that facility, in the military commission system. [00:08:01] Speaker 04: That is the entity that Congress chose to have authority in this area. [00:08:07] Speaker 04: Again, it's not a typical advocate. [00:08:10] Speaker 04: And it makes all the sense in the world that Rule 505 vests that authority with the general. [00:08:16] Speaker 04: But if there were any doubt about that, one need only look at the previous version of Rule 505, which the CMCR inexplicably read as if it had not been amended. [00:08:27] Speaker 04: There was a dispute between the CDC, the Chief Defense Counsel, and the military judge in a case called Cotter about who had the authority to excuse, who had the authority to dismiss counsel. [00:08:42] Speaker 04: The military judge thought that it had the authority. [00:08:45] Speaker 04: The CDC thought it had the authority. [00:08:47] Speaker 04: Whatever the right answer was under that old rule, the amended rule unmistakably excises [00:08:54] Speaker 04: from the rules altogether, the military judge's authority in this area. [00:08:58] Speaker 04: And if it's helpful to – please. [00:08:59] Speaker 02: So let me understand. [00:09:00] Speaker 02: Is your position that assistant counsel then are fungible? [00:09:07] Speaker 02: Assistant counsel? [00:09:08] Speaker 02: This is an administrative task, so if you can't use your clients, just plug in some other people and there's no problem. [00:09:16] Speaker 04: Yeah, so that's certainly one reason why our position is correct. [00:09:20] Speaker 02: So the objection would have to come from lead counsel that, no, I've been working so closely with these two assistants that plugging in two others would just disrupt my preparation? [00:09:34] Speaker 02: We're trying to understand how you see this proceeding. [00:09:36] Speaker 02: You've been working for three years with these people, and all of a sudden they're removed. [00:09:45] Speaker 04: Yes, Your Honor. [00:09:48] Speaker 04: Well, the way that this proceeded tells the tale of why we are here. [00:09:54] Speaker 02: No, but I'm trying to understand your responses to the other judges in terms of your brief says plain text, structure, mystery, cotter, end of discussion. [00:10:06] Speaker 02: Yes. [00:10:06] Speaker 02: So I'm just wondering practically what happens and whether that was what the court was concerned about as well. [00:10:14] Speaker 04: Yes. [00:10:16] Speaker 04: Well, with the case of Assistant Defense Counsel, for example, the CDC would work to detail new Assistant Defense Counsel. [00:10:25] Speaker 02: I understand that, but I'm just trying to press you to see how far you go. [00:10:29] Speaker 04: Yes. [00:10:30] Speaker 02: At one point when the presiding judge says, you know, I have to stop the proceedings. [00:10:36] Speaker 02: So the lead counsel will have a chance to brief these new assistant counsel so the case can go forward. [00:10:46] Speaker 04: If I'm understanding the thrust of your question, [00:10:50] Speaker 04: Our position is, and the rule says, and the Secretary of Defense amended it to have this outcome, that if the CDC determines that Assistant Defense Counsel have a warrant withdrawal when they ask for it, then that is what happens. [00:11:06] Speaker 04: As a practical matter, if I'm understanding it correctly, there would then be the opportunity to put in new counsel. [00:11:13] Speaker 04: And I think it's important to recognize here that [00:11:20] Speaker 04: The rule – there's a policy choice to be made there. [00:11:23] Speaker 04: So who – and who should that authority be vested in? [00:11:26] Speaker 02: I understand, and I'm just trying to press you as to how clear you think it is that the presiding judge has no role whatsoever. [00:11:36] Speaker 04: I think it's quite clear, and I would – I understand Your Honor's talking about this as well. [00:11:42] Speaker 04: If you look at what the 2007 version of this rule said, which is that Addendum 1 [00:11:49] Speaker 04: and Addendum 4 of our appendix, the clearest thing that Rule 505 used to say is, upon request of the accused or application for withdrawal by counsel – excuse me – that the CDC may excuse such counsel upon their request [00:12:08] Speaker 04: under 506B. [00:12:10] Speaker 04: And 506B says, except as otherwise provided, defense counsel may be excused only with the express counsel consent of the accused or by the military judge upon application for withdrawal. [00:12:20] Speaker 04: So the old rule used to say, this one goes to the military judge. [00:12:25] Speaker 04: The new rule completely removes that in the context and the aftermath of the case in which that was the key question. [00:12:31] Speaker 04: The government says that maybe it was an oversight. [00:12:33] Speaker 04: Maybe they didn't mean to excise the military judge's role in this case. [00:12:38] Speaker 04: It couldn't be much clearer. [00:12:40] Speaker 04: And if I could just finish the point, it's – the proposed amendments to this rule that are currently in place [00:12:50] Speaker 04: impose a sea of redlining, which is in the back of our reply brief, to supposedly, as the CMCR say, clarify that the rule that existed in this case actually meant that no, the military judge saw the authority. [00:13:03] Speaker 04: The redlining it took to make that happen is substantial. [00:13:08] Speaker 03: Wait, I'm sorry. [00:13:09] Speaker 03: The revisions are designed to give the military judge that authority back? [00:13:14] Speaker 03: Is that what you just said? [00:13:16] Speaker 04: The revisions, which are just proposed and not necessarily — Yeah, that's what I meant. [00:13:19] Speaker 03: The proposed revisions would do what? [00:13:21] Speaker 04: Yes, Your Honor, if you — Yes, what? [00:13:23] Speaker 04: It's in the back — No, no, I know where it is. [00:13:25] Speaker 03: Yes. [00:13:25] Speaker 03: But I just didn't hear what you said it would do. [00:13:29] Speaker 03: Yes. [00:13:30] Speaker 03: Would it clarify that the military judge does have to approve it or doesn't? [00:13:40] Speaker 04: The answer is absolutely yes. [00:13:42] Speaker 03: Absolutely yes, what? [00:13:43] Speaker 04: Absolutely, yes, why? [00:13:45] Speaker 03: Because it says, for example – No, no, no, but it would make clear that it would change the rule that you think now exists. [00:13:53] Speaker 03: Is that right? [00:13:54] Speaker 03: Correct. [00:13:54] Speaker 03: Okay. [00:13:55] Speaker 03: To avoid a case like this. [00:13:57] Speaker 03: Is that your point? [00:13:57] Speaker 03: Correct. [00:13:58] Speaker 04: And again, it's a proposal and not one that's – I understand. [00:14:00] Speaker 03: But – Let me just ask you two questions about this. [00:14:05] Speaker 03: When you read the government's brief, one might get the impression that the government's concern here is that the Chief Defense Counsel is sort of an advocate for the detainees. [00:14:17] Speaker 03: And Judge Faith seems to have that impression, too. [00:14:22] Speaker 03: And your argument is, no, he's appointed by the president, confirmed by the Senate, right? [00:14:30] Speaker 03: Correct. [00:14:30] Speaker 03: And he's statutorily required to protect [00:14:35] Speaker 03: to ensure that all the detainees have zealous defense counsel, right? [00:14:38] Speaker 03: So is there any evidence in the record at all that sort of counters the government's – the government's suggestions that we need to worry about the independence of the defense counsel, chief defense counsel? [00:14:51] Speaker 03: Like, for example, has the chief defense counsel ever rejected a motion to withdraw, an application to withdraw? [00:14:59] Speaker 04: I'm not – I don't know the answer to that question, but I do know that the commission's own rules of court expressly acknowledge and recognize that it is the chief defense counsel whose job is not to be an advocate, but to facilitate the representation of defense. [00:15:15] Speaker 04: And the – and of course, General Baker was held in contempt and confined in quarters and sanctioned. [00:15:24] Speaker 04: And the lower court – the DDC reversed all of that as exceeding the – as being improper and exceeding the military judge's authority. [00:15:38] Speaker 04: And again, the Chief Defense Counsel does not act – does not sign pleadings, is not a lawyer, does not come up with defense strategy. [00:15:47] Speaker 04: It is a different kind of role that the Secretary of Defense – that Congress and the Secretary of Defense trusted. [00:15:54] Speaker 04: And again, if the rule was going to be changed, that would be the Secretary of Defense's prerogative. [00:15:59] Speaker 04: But they changed it to give more power to the CDC in light of the dispute. [00:16:04] Speaker 03: So let me ask you one other question about – you're talking about how clear the rule is? [00:16:08] Speaker 04: Yes. [00:16:10] Speaker 03: Both sides seems to think that when – and this may not be a question we have to decide, but I'm just curious. [00:16:18] Speaker 03: Both sides seem to think that when there is an application for withdrawal, which is what happened here, that the chief defense counsel has to make a good cause showing, right? [00:16:31] Speaker 03: A good cause finding. [00:16:32] Speaker 03: In other words, they can only grant for good cause. [00:16:34] Speaker 03: Is that your view? [00:16:38] Speaker 04: The rule, I think, most accurately read defines the chief – the CDC's determination to be good cause when it's – when it is made. [00:16:48] Speaker 04: But in this case, General Baker's excusal order found that there was good cause for good cause. [00:16:54] Speaker 03: No, I understand, but did he need to make that finding? [00:16:57] Speaker 03: Yeah. [00:16:57] Speaker 03: Under your interpretation – under your reading of this rule, [00:17:00] Speaker 03: Was it enough that there was a, quote, application for withdrawal? [00:17:07] Speaker 03: In other words, there's an application for withdrawal. [00:17:12] Speaker 03: Chief Defense Counsel Baker could have granted it without making any finding, correct? [00:17:18] Speaker 04: Isn't that right? [00:17:19] Speaker 04: I think that the custom of the office and one that we have no quarrel with is to determine whether or not there is one cause. [00:17:24] Speaker 03: I know that. [00:17:25] Speaker 03: That's why I'm asking you the question. [00:17:26] Speaker 03: But that's not the way this thing reads. [00:17:30] Speaker 03: It says little i says for application for withdrawal, and then ii says for other good caution. [00:17:42] Speaker 04: Yes. [00:17:43] Speaker 03: Other suggests that application to withdraw is good cause. [00:17:50] Speaker 04: Isn't that the way you read that? [00:17:53] Speaker 04: I think that is one reading, but I think there are two permissible readings in this case. [00:17:58] Speaker 03: You do? [00:17:58] Speaker 04: But either clearly entitles us to the relief. [00:18:02] Speaker 04: One is the relief. [00:18:02] Speaker 03: Well, yeah. [00:18:03] Speaker 03: I mean, you're totally right. [00:18:04] Speaker 03: Even if good cause is not required, he made a good – it doesn't really make any difference. [00:18:08] Speaker 03: Yes. [00:18:08] Speaker 03: Exactly. [00:18:08] Speaker 04: It shows the outcome, right? [00:18:10] Speaker 04: Yes. [00:18:10] Speaker 04: That's the main contention I would like to leave you with. [00:18:13] Speaker 04: Okay. [00:18:14] Speaker 04: All right. [00:18:14] Speaker 04: I see my red light is on. [00:18:15] Speaker 04: I'd like to speak a little bit about the equities, but I can save that for rebuttal. [00:18:18] Speaker 02: Excellent. [00:18:19] Speaker 02: We should do that. [00:18:20] Speaker 04: Thank you, Your Honor. [00:18:31] Speaker 00: Good morning. [00:18:32] Speaker 00: May I please support? [00:18:34] Speaker 00: This Court should deny the petition for writ of mandamus because petitioners have an adequate alternative means to obtain the relief they seek. [00:18:41] Speaker 03: Before you get to adequate terms of relief, are you defending the CMCR's reliance on Rule 505 D2B? [00:18:56] Speaker 00: Yes. [00:18:57] Speaker 03: You're defending that? [00:18:58] Speaker 00: Yes, the U.S. [00:18:59] Speaker 03: CMCR writ – Why don't you start out by responding to counsel's argument about why this language is crystal clear given not just the language but also its amendment history? [00:19:11] Speaker 00: The petitioners cannot demonstrate clearly and indisputably their entitlement to the writ under this rule because every judicial decision to have considered this rule – No, no, no. [00:19:19] Speaker 03: I asked you about the language of rule. [00:19:22] Speaker 03: We think that the authority of the military... Just stick with the language of the rule for a minute, okay? [00:19:27] Speaker 03: We think that the... Let me just finish my question. [00:19:29] Speaker 03: His argument is that the rule for military commissions is different from the rule for court marshals because the latter has a specific requirement that the withdrawal be approved by [00:19:52] Speaker 03: by the military judge, and indeed, that that requirement used to be in the rule for military commissions. [00:19:58] Speaker 03: That's his argument. [00:19:59] Speaker 03: Is that wrong? [00:20:00] Speaker 00: Yes. [00:20:01] Speaker 03: It is. [00:20:01] Speaker 03: What is wrong about that? [00:20:03] Speaker 00: The authority of the military judge to review the excusal of the decisions of the chief defense counsel is preserved in the language for other good cause shown on the record. [00:20:11] Speaker 00: The record is the record of the judicial proceedings. [00:20:13] Speaker 03: Wait, wait, wait. [00:20:14] Speaker 03: Where is that in the rule? [00:20:16] Speaker 00: In the rule? [00:20:17] Speaker 00: Yeah. [00:20:20] Speaker 03: And it says... Are you looking at the rule for... Military commissions. [00:20:25] Speaker 03: For military commissions? [00:20:26] Speaker 00: Yes. [00:20:28] Speaker 00: And it says that for a defense counsel to be excused, they must show good cause on the record. [00:20:34] Speaker 03: And the record... No, it says, look at little i. Why don't you start with the first little i, okay? [00:20:44] Speaker 03: It says, upon the request of the accused, right? [00:20:47] Speaker 00: Yes. [00:20:48] Speaker 03: Or application for withdrawal. [00:20:50] Speaker 03: That's what this one is, right? [00:20:51] Speaker 00: Yes. [00:20:52] Speaker 03: Application for withdrawal. [00:20:54] Speaker 03: Correct? [00:20:55] Speaker 00: Yes. [00:20:56] Speaker 03: So how do you get to little two at all? [00:20:59] Speaker 00: Because of the word other. [00:21:00] Speaker 00: The word other connects the phrase for other good cause shown on the record with the request and the application. [00:21:06] Speaker 00: Other. [00:21:06] Speaker 03: But it says or before. [00:21:08] Speaker 00: But other connects the two, even if there's an or. [00:21:11] Speaker 00: In order to give other meaning. [00:21:13] Speaker 03: Wait a minute. [00:21:14] Speaker 03: Wait a minute. [00:21:14] Speaker 03: Wait a minute. [00:21:18] Speaker 03: So you say that, you say that, but this is all, this all refers back to, this all refers back to an authority competent to detail such counsel. [00:21:38] Speaker 03: So we're talking about, [00:21:40] Speaker 03: the Chief Defense Counsel. [00:21:41] Speaker 03: This whole thing is about the actions of the Chief Defense Counsel, isn't it? [00:21:45] Speaker 00: No, we agree that the Chief Defense Counsel makes the initial determination whether to excuse the Defense Counsel, but then the authority of the military judge is preserved in 505D2B because there's the language for other good cause shown on the record. [00:21:59] Speaker 03: Okay, so you think that two, the way we should read two is, you read this this way. [00:22:06] Speaker 03: Here's the way you read it. [00:22:08] Speaker 03: or application for withdrawal by such counsel for good cause found by the judge, right? [00:22:23] Speaker 03: That's the way you read that. [00:22:27] Speaker 00: as saying that first the Chief Defense Counsel makes the initial determination, but then there's judicial review. [00:22:31] Speaker 03: And where is the word judge in little i? [00:22:34] Speaker 00: On the record. [00:22:35] Speaker 03: Not in little i, but we think other good cause shown on the record connects the... Oh, you mean the record says that refers to the judge. [00:22:43] Speaker 00: Yes. [00:22:46] Speaker 00: The government agrees that there are different ways that you could interpret the rule, but that the better interpretation, the interpretation that's endorsed by nine judicial decisions from eight different judges, the interpretation that avoids the odd consequence of permitting a defense counsel to be excused on the eve of trial, and the interpretation that's consistent. [00:23:07] Speaker 03: Excuse me, what about counsel's argument that this rule used to expressly require [00:23:15] Speaker 03: the military judge's involvement, but that was deleted in 2010, and now there's an effort to put it back in again. [00:23:23] Speaker 00: It was actually deleted in 2009. [00:23:24] Speaker 03: Okay, well that can't be – you're right, but it was deleted, correct? [00:23:32] Speaker 00: Correct. [00:23:33] Speaker 03: Okay, so how does that fit into your thinking? [00:23:37] Speaker 00: A 2009 Department of Defense memorandum that explained the changes that were made to the Rules for Military Commission in 2009 and codified in the 2010 manual indicates that Rule 506B and the cross-reference to 506B were removed as a byproduct of the restructuring. [00:23:52] Speaker 00: Were what? [00:23:52] Speaker 00: Removed as a byproduct. [00:23:54] Speaker 00: of the restructuring that was done to rule 506 in order to provide defendants greater latitude in their choices of defense counsel. [00:24:01] Speaker 00: But in the government's view, the removal of 506B and the cross-reference to 506B did not remove the authority of the military judge to make the excusal determinations, and that's because we think that [00:24:14] Speaker 00: Were the Secretary of Defense going to strip the military commission judges of the authority that's possessed by every court-martial judge, then he would have said so explicitly on the face of the rule. [00:24:24] Speaker 00: And we know this because in the 2010 Manual for Military Commissions upon which petitioners rely, the Secretary of Defense departed from the rules for court-martial three times – once in Rule 703, once in Rule 910, and then Military Commission Rule of Evidence 412. [00:24:38] Speaker 00: And in each of those times, he said explicitly on the face of the rule that he was departing from the court-martial rule and that he had made a determination that applying the court-martial rule in the military commission's context. [00:24:50] Speaker 05: So is this a scrivener's error? [00:24:52] Speaker 05: What's the – because on the plain language of it, if you're speaking the plain language, all you need to do is apply for withdrawal. [00:24:59] Speaker 00: That 506 was unnecessary to preserve the military judge's authority, but even if – Even though they took it out? [00:25:05] Speaker 00: Excuse me? [00:25:06] Speaker 00: No, but it wasn't necessary. [00:25:09] Speaker 03: We have many cases in this court which say that when interpreting statutes, a deletion of language means that that provision is no longer operative, no matter what the courts say about it. [00:25:25] Speaker 00: different ways you can interpret the rule. [00:25:28] Speaker 00: I think there are other rules of statutory construction that apply here that would say that the better interpretation of the rule is this rule that... What other rules of statutory construction? [00:25:37] Speaker 00: For example, the rule of the absurdity doctrine, that this court should not read the rule in a way that would commit... So why would that be absurd to read this in the power of the Chief Defense Counsel? [00:25:49] Speaker 00: It would permit the defense counsel to be excused even on the eve of trial or, for example, immediately before the cross-examination of a critical government witness. [00:25:57] Speaker 00: Before that witness was about to be repatriated to another country pursuant to his pretrial agreement, as occurred in this case. [00:26:04] Speaker 00: But even if this court concludes that Rule 505D2B is silent with respect to the role of the military judge, then that rule is supplied by Rule of Court 4. [00:26:13] Speaker 03: Rule what? [00:26:13] Speaker 00: Rule of Court 4. [00:26:15] Speaker 03: And that – aren't those trumped by the military commissioners? [00:26:18] Speaker 00: But we don't think that they're inconsistent, and the USCMCR read them harmoniously. [00:26:22] Speaker 00: And the USCMCR's decision does not arise to the level of judicial usurpation of power that would warrant the extraordinary writ of mandamus, because the USCMCR was acting within its authority to interpret those rules [00:26:35] Speaker 00: And that interpretation was not clearly and indisputably correct when judicial review is required by every federal court in the United States and specifically required by the rules of court in this case. [00:26:46] Speaker 00: Rule of court four was written by Chief Judge of the trial judiciary at the time Judge Pohl. [00:26:51] Speaker 00: And Judge Pohl interpreted his rule of court twice in the 9-11 case, once in appellate exhibit 4AA and then again in appellate exhibit 6F. [00:26:59] Speaker 00: And there he said that to the extent there was any question about what rule of court four meant, [00:27:04] Speaker 00: that he meant that it required the approval of the military judge of, quote, all defense counsel, end quote, before a defense counsel may be excused. [00:27:13] Speaker 00: And so as this court has recognized, every circuit court in the United States defers to the trial courts in their interpretation and enforcement of their local rules. [00:27:22] Speaker 00: And petitioners provide no sound basis upon which to do that here. [00:27:25] Speaker 00: So even if this court concludes that rule 505-D2 be silent with respect to the role of the military judge, then rule of court four supplies that rule. [00:27:35] Speaker 00: Petitioners also have an adequate alternative means to obtain the relief they seek, and that's by reapplying for withdrawal when the military commission proceedings resume. [00:27:44] Speaker 00: And petitioners have a reasonable basis upon which to reapply for withdrawal, even if they are — But their position is that they've already withdrawn and their withdrawal has been approved. [00:27:54] Speaker 03: But — That's their argument, and they're also arguing that there are orders that the military judge issued subsequent to that that need to be vacated. [00:28:04] Speaker 00: Every judicial decision to have considered that argument, including the one by Judge Bath, concluded that that was incorrect and they are required to comply with the orders of the military court until they obtain a stay of those orders or until a reviewing court overturns those orders. [00:28:19] Speaker 00: And that was not what they did here. [00:28:22] Speaker 00: So the military judge considered the Chief Defense Counsel's opinion as well as the petitioner's reading of the rule and rejected that. [00:28:30] Speaker 00: explained that they were required to continue representing. [00:28:34] Speaker 03: Who did the CMCR? [00:28:35] Speaker 00: The CMCR did as well reject that interpretation on October 11th of 2018 in its merits opinion. [00:28:42] Speaker 00: And Judge Spath also issued the same orders interpreting the rule in 389A, 389J, and 389F. [00:28:52] Speaker 03: You heard the questions we asked counsel petitioner. [00:28:57] Speaker 03: If we believe – this is a hypothetical question. [00:29:02] Speaker 03: If we were to grant al-Nashiri's motion in the next case, if we were to grant that and vacate Judge Stath's orders, every order from the date he applied for a job, would that move this case? [00:29:22] Speaker 00: No. [00:29:23] Speaker 00: We think that the USCMCR's merits opinion [00:29:26] Speaker 00: from October 11th, 2018 would remain in place, and that's because – [00:29:44] Speaker 03: Why is that responsive to my question? [00:29:46] Speaker 00: Well, it would – if you ruled that Judge Spath were disqualified and you vacated his orders, that would mood it with respect to Judge Spath's orders, but not with respect to the U.S. [00:29:57] Speaker 00: CMCR's decision. [00:29:57] Speaker 03: But what about with respect to those CMCR orders that rejected the disqualification argument? [00:30:07] Speaker 03: Yes, sir. [00:30:07] Speaker 00: Yes, but the USCNCR's order also rejecting the interpretation of Rule 505, D2B, and Rule of Court for rejecting the interpretation would remain. [00:30:18] Speaker 03: Yeah, that I understand, but I take your point about that. [00:30:23] Speaker 03: Okay, go ahead. [00:30:24] Speaker 00: But the government's interest with respect to petitioners is not to seek to compel them to continue representing on the sherry. [00:30:32] Speaker 00: It's not to punish them for violating the military commission's orders requiring them to continue the representation. [00:30:39] Speaker 00: file ethical complaints against them, the government's interest with respect to petitioners is simply to ensure adequate representation upon the sherry. [00:30:46] Speaker 00: And as long as it's some defense counsel, it matters not to the government, whether it's these particular defense counsel or other defense counsel who are providing that. [00:30:55] Speaker 03: The government could have done this a long time ago. [00:30:58] Speaker 00: The government wasn't in a position to support an application for withdrawal because at the CMCR, [00:31:03] Speaker 00: Even though Captain Miser had been recalled to active duty in May of 2018, he told the US CMCR that he was not able to file any briefs before the US CMCR until he obtained the consent of al-Nashiri to do so. [00:31:20] Speaker 00: And that's why the US CMCR in its May 23, 2018 decision said that there was still a, quote, risk, end quote, that Captain Miser wouldn't be representing al-Nashiri and then [00:31:30] Speaker 00: Captain Miser submitted a declaration to the USCNCR explaining that, in his view, he would not be competent to represent al-Nashiri until at least late June 2018 because of the press of other obligations that he had to address. [00:31:44] Speaker 03: Has that issue now been resolved? [00:31:46] Speaker 00: We believe it has because – When was it resolved? [00:31:49] Speaker 00: We'll be – by Captain Miser's representation, continued representation of al-Nashiri in this court today, we believe it has been resolved because it appears that [00:31:58] Speaker 00: He is going to continue to represent al-Nashiri and can provide that adequate representation. [00:32:03] Speaker 00: And as long as he provides that adequate representation, then we believe that the military commission could grant an application for withdrawal on the ground that petitioner's assistance is no longer needed. [00:32:21] Speaker 00: And this court asked also whether Judge Spath had ever, or excuse me, the Chief Defense Counsel had ever denied a request for withdrawal of a defense counsel. [00:32:32] Speaker 00: And the answer is yes. [00:32:34] Speaker 00: He denied the request of Captain Miser, who was then Commander Miser, to withdraw. [00:32:39] Speaker 00: And in fact, Mr. Cannon [00:32:41] Speaker 00: file the motion asking the Military Commission to abate the proceedings until Captain Miser had been, quote, restored, end quote, to the Military Commission team to defend al-Mashiri, and Judge Fath denied that motion in appellate exhibit 348L, explaining that [00:33:00] Speaker 00: permitting Captain Miser at that time to withdraw wouldn't disrupt the military commission proceedings because Captain Miser, not Captain Miser, but Al-Nashiri was represented by at least five additional defense counsel, which explains that regardless of whether they're the lead counsel or not, one of the factors that the military commissions consider [00:33:19] Speaker 00: in deciding whether to release a defense counsel is whether they will have adequate representation, and we believe that adequate representation is available in this case. [00:33:28] Speaker 00: And the government respectfully requests that this court deny the petition for writ of mandamus. [00:33:34] Speaker 02: Thank you. [00:33:41] Speaker 04: Thank you, Your Honor. [00:33:41] Speaker 04: Just a few quick points in rebuttal. [00:33:44] Speaker 04: I'll be quick on the text. [00:33:45] Speaker 04: There's nothing about an initial determination in Rule 505 as amended. [00:33:49] Speaker 04: There's nothing about a judicial determination. [00:33:51] Speaker 04: What there is in the old Rule 505 is an express requirement for military judge determination upon a counsel's request for withdrawal. [00:33:59] Speaker 05: If you go with the plain reading, and as Judge Taito was pressing upon you, all it takes is a request of the accused or an application for withdrawal. [00:34:10] Speaker 05: If there's an application for withdrawal, the CDC may excuse. [00:34:15] Speaker 05: Now, what can – what will prevent the parade of horribles that your friend spoke about – last-minute withdrawals? [00:34:22] Speaker 04: Yes. [00:34:24] Speaker 04: I appreciate it. [00:34:24] Speaker 04: Yes. [00:34:25] Speaker 04: The CDC is a general and the second highest-ranking lawyer in the Marine Corps. [00:34:29] Speaker 04: He serves at the pleasure of the President and can be removed for any reason or no reason. [00:34:34] Speaker 04: As I appreciate my colleague's remark that he has denied requests to withdraw in the past, this is a serious office held by a high-ranking official. [00:34:45] Speaker 04: There's always a policy decision to be made about who should be the decider of things. [00:34:50] Speaker 04: Here, Congress created an office that is held by someone who's [00:34:54] Speaker 04: more than capable of not serving as an advocate, not serving as, say, the U.S. [00:34:57] Speaker 04: attorney trying to decide whether or not to somehow stop a case, but as someone whose job is to facilitate representation. [00:35:03] Speaker 04: General Baker's record in that regard has been admirable. [00:35:07] Speaker 04: If they – if the Secretary of Defense wished to change the rule, it could. [00:35:11] Speaker 04: And of course, if the President or the Secretary of Defense wished to remove General Baker, they could as well. [00:35:16] Speaker 04: This is not a mere government functionary. [00:35:18] Speaker 04: This is a high-level, a highly qualified, [00:35:21] Speaker 04: highly decorated person who makes these decisions. [00:35:25] Speaker 03: And what's your answer to her argument that if you leave it up to him, that is the chief defense counsel, that at the very last minute, at a very inopportune moment during a trial, he could relieve defense counsel of – give him – let him withdraw and disrupt the trial? [00:35:46] Speaker 04: My answer to that is there's no reason to think that's the case. [00:35:49] Speaker 04: And if a CDC did that, if General Baker did that, I don't think he'd be very long in his position because he could be removed by the executive. [00:35:57] Speaker 04: That is the check on his power. [00:35:59] Speaker 03: Okay. [00:35:59] Speaker 03: And what's your answer to her argument that the phrase in double I? [00:36:05] Speaker 03: Yes. [00:36:06] Speaker 03: For other good cause shown on the record. [00:36:09] Speaker 03: That on the record means by the, that's the kind of language you use for an action by a judge. [00:36:16] Speaker 04: So two points. [00:36:17] Speaker 04: One, of course, we're in single I, not double I. I know. [00:36:20] Speaker 04: And second. [00:36:21] Speaker 03: But she says you have to read them together. [00:36:23] Speaker 03: I know you have to just bear with the hypothetical for a minute. [00:36:30] Speaker 04: Yes. [00:36:31] Speaker 03: So what do you think on the record means? [00:36:33] Speaker 04: On the record means you look to who the decider is. [00:36:37] Speaker 04: Yeah. [00:36:38] Speaker 04: It's the CDC. [00:36:39] Speaker 04: That's what it says right. [00:36:40] Speaker 04: Detailing authority who is the CDC. [00:36:41] Speaker 04: Yeah. [00:36:42] Speaker 04: And if we're in a situation in which it's not a request of the accused or an application for withdrawal, then other material, establishing good cause, needs to be presented to that decision maker. [00:36:53] Speaker 04: 505 is a who decides provision. [00:36:56] Speaker 04: And the answer to that question [00:36:58] Speaker 04: is clear on its face and particularly clear after the amendment, which had a different decider and expressly did so. [00:37:04] Speaker 04: Now I want to say something very brief. [00:37:07] Speaker 03: What about, just one more thing, what about, she relied on rule of court, rule of court four. [00:37:12] Speaker 04: Yes. [00:37:13] Speaker 03: What do you think about that? [00:37:14] Speaker 03: So. [00:37:14] Speaker 03: You did too, actually. [00:37:15] Speaker 04: Yes, we do. [00:37:16] Speaker 04: We think it supports us, but. [00:37:17] Speaker 04: You do? [00:37:18] Speaker 04: But. [00:37:18] Speaker 03: All right, well anyway, why is it relevant? [00:37:20] Speaker 04: So it isn't relevant in the sense that if it disagreed or if it conflicted with what 505 requires, [00:37:26] Speaker 04: 4.4 and the other rules of court cannot vary the rule. [00:37:30] Speaker 04: We're talking about a regulation from the Secretary of Defense versus a rule that is promulgated by the Commission on this area. [00:37:36] Speaker 04: So not – so it can't – 505 is clear, so you can stop right there. [00:37:42] Speaker 04: As to 4.4 and 4.2, we lay it out in our brief. [00:37:46] Speaker 04: There is – Assistant Defense Counsel are treated differently, just as they are from the statute, 948K. [00:37:53] Speaker 04: and the regulation 502 F and now the trial court rule unlike the other counsel in. [00:38:02] Speaker 04: the military commission world, there is not the requirement that they seek approval from the military judge to withdraw. [00:38:08] Speaker 04: Instead, they are functionaries. [00:38:10] Speaker 04: They are assistant defense counsel who can only serve under the supervision of a more senior counsel. [00:38:17] Speaker 04: And if you follow rule point 4.2 through, it's pretty clear that unlike the others who conspicuously do need to go seek approval, the assistant defense counsel are not subject to that requirement. [00:38:29] Speaker 03: Let's assume you're right about that, that your relief is clear and indisputable. [00:38:33] Speaker 03: This is mandamus. [00:38:34] Speaker 04: Yes. [00:38:35] Speaker 03: So tell us, as crisply as you can, your best argument for why the government is right that you should take this whole issue to the new military judge. [00:38:47] Speaker 03: What's your best argument about that? [00:38:53] Speaker 04: It's twofold. [00:38:55] Speaker 04: One, of course, we submit that we've already been excused, and this is a question about the decider. [00:38:59] Speaker 03: I got that. [00:38:59] Speaker 03: I got that. [00:39:00] Speaker 04: But secondly – and I heard the government say a couple of different things during its argument, but the ones that I noticed were their view and the view of the CMCR and the military commission is that at the time they were excused by General Baker, they acted unlawfully. [00:39:19] Speaker 04: And I could quote at length from Judge Spath's statements, and I can also point you to in the record where the motions for sanctions exist. [00:39:28] Speaker 04: And even if those motions were withdrawn, it is the findings that petitioners acted unlawfully, violated their ethical responsibilities, put them wrongly [00:39:41] Speaker 04: unwarrantedly, unjustifiably, in danger of sanctions, either from state bar, either from the bar of the military commission, or other proceedings. [00:39:52] Speaker 04: Simply going back now and recognizing, which has always been the case, that they are superfluous and not necessary for the trial to continue does not remove that. [00:40:02] Speaker 04: Does not remove that. [00:40:03] Speaker 04: And so only this court can prevent that. [00:40:07] Speaker 04: Only this court can prevent that. [00:40:08] Speaker 04: I'll be there arguing that the sanctions ought not be issued if this court doesn't, but only this court can prevent that from happening as it should by granting us the writ. [00:40:17] Speaker 04: And while mandamus is an unusual remedy, an extraordinary remedy, the Supreme Court has recognized that it's appropriate for unlawful representations. [00:40:26] Speaker 04: And I want to stress again, we did not seek to withdraw in this case. [00:40:30] Speaker 04: When the microphones were discovered, [00:40:33] Speaker 04: We do not ask to withdraw. [00:40:35] Speaker 04: We ask for discovery. [00:40:37] Speaker 04: We ask for cross-examination. [00:40:38] Speaker 04: We ask for fact-finding. [00:40:40] Speaker 04: all of it summarily denied. [00:40:42] Speaker 04: We asked to be able to tell – the petitioners asked to be able to tell their client about the possibility of compromise conversations denied. [00:40:50] Speaker 04: The petitioners obtained an ethics opinion stating – that said they had a mandatory obligation to withdraw under those circumstances. [00:40:59] Speaker 02: I understand those arguments. [00:41:00] Speaker 02: I just want to be clear, though. [00:41:01] Speaker 02: Yes. [00:41:02] Speaker 02: Your position is once the Secretary has promulgated a rule presiding [00:41:07] Speaker 02: The judge at the military commission has no authority to set any rule that could be interpreted to require more than what the secretary has required. [00:41:21] Speaker 04: In the context of 505, 505 says who the decider is. [00:41:25] Speaker 02: In other words, I'm thinking of district court judges, where they're the rules of federal procedure. [00:41:30] Speaker 02: But a number of district court judges have their own additional rules, so when you appear before them in their courtroom, you have to follow their rules. [00:41:37] Speaker 04: Yes. [00:41:38] Speaker 04: There are, and as the court is well aware, for example, with the federal rules of appellate procedure, there are some that are mandatory and there are some that are given to the circuit courts to decide if they want to vary or change altogether. [00:41:49] Speaker 04: So it's really, you know, it's always the decision maker here, the Secretary of Defense's decision to decide whether something is optional or subject to change or not. [00:41:57] Speaker 04: The right reading of rule 505 is this is a rule and other rules may be very different, other systems of rules may be very different. [00:42:04] Speaker 04: Nothing this court says today about 505 [00:42:07] Speaker 04: has any necessary application to anything else anywhere. [00:42:10] Speaker 04: But for 505, text and history show that the Department of Defense, which is charged with administering and promulgating these rules, made a decision to give this to the CDC. [00:42:20] Speaker 04: If they choose to make that policy, to change that policy decision going forward, that is their prerogative. [00:42:27] Speaker 04: But it is their prerogative, and they spoke clearly. [00:42:33] Speaker 04: We ask that the court grant the mandamus. [00:42:36] Speaker 04: Thank you.