[00:00:02] Speaker 02:
Case number 19-1100 at L. Henry Mustafa Ahmed out.

[00:00:58] Speaker 03:
That's where you tell the courtroom.

[00:01:27] Speaker 03:
All right.

[00:01:28] Speaker 03:
Good morning.

[00:01:29] Speaker 06:
Good morning, Your Honor.

[00:01:30] Speaker 06:
Good morning, Your Honors.

[00:01:35] Speaker 06:
Petitioners have been litigating in pretrial proceedings in Guantanamo, their capital case for more than seven years.

[00:01:44] Speaker 06:
And we are here today asking the court to vacate nine months of judicial decisions arising from Colonel Perella's tenure on the bench.

[00:01:54] Speaker 06:
A reasonable person looking at the time of Colonel Perel's tenure on the bench would question his impartiality.

[00:02:05] Speaker 05:
It would be really helpful to us if, when you make your argument, you do it within the standard of review that we have to apply here.

[00:02:13] Speaker 05:
This is a mandamus action.

[00:02:14] Speaker 05:
Yes, sir.

[00:02:15] Speaker 05:
So you have to have clear and indisputable right to release.

[00:02:22] Speaker 06:
That's correct.

[00:02:23] Speaker 05:
This is not an appeal from the commission.

[00:02:27] Speaker 06:
The facts show clearly and indisputably that a reasonable person would question Colonel Porella's impartiality if the reasonable person had knowledge of all the facts on the record.

[00:02:39] Speaker 06:
There is a clear and indisputable right to the writ because of the record that shows the issues with Colonel Porella's bias or potential bias.

[00:02:47] Speaker 05:
What do you think is the strongest part of your cases?

[00:02:51] Speaker 05:
What would you point to as the strongest?

[00:02:55] Speaker 06:
Judge Hale, our claim is one that's cumulative.

[00:02:57] Speaker 06:
So I hesitate to get torn down the road of one fact as another.

[00:03:02] Speaker 06:
That's fair.

[00:03:03] Speaker 05:
You don't have to do that if you don't want to.

[00:03:05] Speaker 05:
That's a totally fair point.

[00:03:07] Speaker 05:
But of all the arguments that you accumulate, is one stronger than the other?

[00:03:12] Speaker 06:
I think the strongest factor is that the extensive ex parte proceedings that take place in Guantanamo commissions

[00:03:20] Speaker 06:
Colonel Perella conducted five ex parte proceedings with the prosecution.

[00:03:25] Speaker 06:
And most notably, one of the first acts in the first month he was on the bench was to request an ex parte proceeding.

[00:03:32] Speaker 06:
And I'll characterize that most specifically.

[00:03:36] Speaker 06:
He asked for the prosecution who had requested an ex parte proceeding to expand the notion of that proceeding into a history of the ex parte litigation in the case.

[00:03:45] Speaker 06:
So essentially, he wanted an ex parte presentation from the prosecution

[00:03:49] Speaker 06:
the same prosecution that he worked for just three years earlier, some of the same prosecutors that were his colleagues just three years earlier.

[00:03:56] Speaker 05:
I'm sorry, is there evidence that he himself worked on this prosecution?

[00:04:00] Speaker 06:
The best that he was able to give on the record in Voydeer was that he does not, to the best of his recollection, he didn't work on the case.

[00:04:08] Speaker 06:
And to the best of his recollection, he wasn't present at any briefings.

[00:04:13] Speaker 06:
But the record also shows that

[00:04:15] Speaker 06:
counterterrorism prosecutors, of which there were only 40.

[00:04:18] Speaker 06:
And we know at least three of those, while he was at the counterterrorism section, were prosecutors on Petitioner's case.

[00:04:24] Speaker 06:
At least three of those, that those 40 lawyers met regularly, according to the affidavit at the appendix in Petitioner Ben-Attach's, at 468 of Petitioner Ben-Attach's appendix, it indicates, an affidavit indicates, that those 40 counterterrorism prosecutors met regularly to discuss the cases that they had.

[00:04:44] Speaker 06:
So it stands to reason that when Colonel Perala says to the best of his recollection he didn't receive a briefing, it's likely he did.

[00:04:52] Speaker 05:
But again... See, when you get to words like that, it's hard to fit this under clear and indisputable.

[00:04:58] Speaker 05:
That's what bothers me.

[00:05:00] Speaker 05:
Well, it's clear... There's no clear evidence in the record that he worked on this case.

[00:05:07] Speaker 05:
There's surmise, but that's not clear and indisputable.

[00:05:12] Speaker 06:
Correct, but Judge, respectfully, what we need to show is not that there actually was, that he actually worked on this case, but that there's an appearance problem, that a reasonable person looking at the record would question his ability to be impartial.

[00:05:25] Speaker 06:
The question is not whether he actually worked on the case, but whether the record shows that he appeared to be impartial.

[00:05:31] Speaker 06:
And if Your Honor is going down to looking at the road of 455B3 in the federal courts,

[00:05:37] Speaker 06:
That's where I was going.

[00:05:38] Speaker 05:
Is that where you were going?

[00:05:39] Speaker 05:
Yeah.

[00:05:41] Speaker 06:
Okay.

[00:05:41] Speaker 06:
Our position is one, the 455B3 has no analog in the military commissions because that distinction between prior federal government work and being on the bench has no application in the military.

[00:05:56] Speaker 06:
Military judges are always with the federal government.

[00:06:00] Speaker 06:
So that's why in the military,

[00:06:03] Speaker 06:
and in military justice, Rule 902A, which is analogous to 455A, and says that a judge should be removed, sorry, shall remove himself, recuse himself when his impartiality might reasonably be questioned.

[00:06:16] Speaker 06:
So that analog to 455A, which exists in the military commissions under 902A, that carries much greater weight in the military justice system because military judges stand as the bulwark against

[00:06:30] Speaker 06:
against the influence, against the power of government, because they are the only bulwark.

[00:06:35] Speaker 06:
They're not a third branch.

[00:06:36] Speaker 06:
They're part of the government.

[00:06:38] Speaker 06:
And the appearance issues and their role are, therefore, paramount.

[00:06:42] Speaker 06:
And the importance of a judge ensuring that the appearance of impartiality is maintained is, therefore, so much more important in the military commission system.

[00:06:54] Speaker 03:
So Colonel Perales.

[00:06:55] Speaker 03:
What's your position on the order of the CMCR that came down?

[00:07:00] Speaker 06:
The chief issue with the CMCR's position is that they changed an imperative in 902A to a conditional, and they say the judge should remove himself under 902A if there's an appearance, and that is not the standard in military justice, so they incorrectly stated the standard.

[00:07:18] Speaker 06:
It clearly says in 902A, a military judge shall recuse himself if his impartiality might reasonably be questioned.

[00:07:26] Speaker 06:
So the CMCR essentially misstated the rule that applies in military justice and underestimates the importance of the judge having to serve as that bulwark in the system.

[00:07:36] Speaker 06:
In Hassan versus United States, which we cite in our papers, the court of appeals of the armed forces was clear that in the military justice system,

[00:07:47] Speaker 06:
The impartiality of a judge, in fact, and in appearance, is paramount to preservation of the system.

[00:07:53] Speaker 06:
And this is where things failed.

[00:07:56] Speaker 06:
Colonel Perrella, in his tenure at the counterterrorism section, worked with prosecutors on this case.

[00:08:01] Speaker 06:
He was a full-fledged prosecutor just three years before he took the bench in this case.

[00:08:07] Speaker 04:
And it's important to note, going back to the, if you want to... Because he worked with prosecutors on this case, you just mean he worked with people who were prosecutors, not that he worked on this case.

[00:08:16] Speaker 06:
Correct.

[00:08:17] Speaker 06:
He worked with prosecutors.

[00:08:18] Speaker 06:
He was colleagues, if you will, Judge.

[00:08:21] Speaker 06:
But the importance there is to look at not – this is not – CTS is not just a federal agency.

[00:08:26] Speaker 06:
It's not as though he worked at DOJ in the Securities Litigation Division.

[00:08:29] Speaker 06:
He was with the section in the division that is dedicated to prosecuting counterterrorism cases such as petitioners.

[00:08:36] Speaker 03:
About 40 lawyers in that?

[00:08:39] Speaker 06:
That's what the record shows, yes, that there were approximately 40 lawyers.

[00:08:42] Speaker 06:
So it's, in fact, much more analogous to the private firm situation.

[00:08:46] Speaker 06:
And again, I don't want to be dragged down the road of paralleling too much with the federal practice, because this is a military practice.

[00:08:53] Speaker 06:
And the military practice has that rule in 902A that I cited to you, but also it adopts, excuse me, Colonel Perella was bound by the canons of judicial conduct.

[00:09:02] Speaker 05:
But isn't the right analogy US attorney's offices?

[00:09:05] Speaker 05:
There are lots of federal judges who come from US attorney's offices and preside over cases brought by that office.

[00:09:13] Speaker 05:
The only limitation is they can't preside over a case they worked on.

[00:09:17] Speaker 05:
Why isn't this exactly the same thing?

[00:09:20] Speaker 06:
Because he was coming from an office that was designated to prosecute this case, essentially.

[00:09:29] Speaker 06:
The counterterrorism section and the CMA.

[00:09:31] Speaker 05:
Well, the U.S.

[00:09:32] Speaker 05:
attorney, assistant U.S.

[00:09:33] Speaker 05:
attorney, could come from an office, from a section that's, say, designated, organized to bring gun cases.

[00:09:44] Speaker 05:
And that now confirmed judge could sit on gun cases from that office so long as it wasn't a case he or she worked on.

[00:09:54] Speaker 06:
But that judge is, and I see my time has run out.

[00:09:58] Speaker 06:
You can keep going.

[00:09:59] Speaker 06:
Thank you.

[00:10:00] Speaker 06:
That judge joins the third branch, as you know, and that judge becomes independent and is no longer and will no longer theoretically return to the executive branch.

[00:10:12] Speaker 06:
That is not the case with Colonel Perrella, who was sent to the bench, assigned to the bench, not appointed

[00:10:18] Speaker 06:
assigned to the bench by the executive returns to work for the executive and came from the very section that whose sole mission was to prosecute, is to prosecute, the petitioners.

[00:10:29] Speaker 06:
And, like the petitioners.

[00:10:32] Speaker 06:
My time has run out so I'll go to my colleague.

[00:10:58] Speaker 00:
Morning on ours, Maine Police Court.

[00:11:02] Speaker 00:
Following up on my colleague, the relevant factors under Logeberg that would cause a reasonable person to question the impartiality or perceive the appearance of partiality of Colonel Borrella are not just that it's 40 attorneys in the counterterrorism section, but that the counterterrorism section was

[00:11:23] Speaker 00:
created in the wake of 9-11, the very case in which obviously the petitioners are being accused of committing.

[00:11:30] Speaker 00:
And CTS is divided into three groups, an al-Qaeda section, a non-al-Qaeda section, and a domestic section.

[00:11:40] Speaker 00:
The undisputed record is that work in these sections bleeds.

[00:11:46] Speaker 00:
You can be assigned to a particular section, but that doesn't mean that's exclusively what you do.

[00:11:50] Speaker 00:
And you certainly sit in on unit meetings,

[00:11:53] Speaker 00:
Office-wide briefings.

[00:11:57] Speaker 00:
Memoranda are distributed throughout the office to everybody.

[00:11:59] Speaker 00:
And Mike Mullaney, the chief of counterterrorism section himself, wrote a letter to the Marine Corps after Colonel Perelett's time working at CTS saying that's exactly what Colonel Perelett did.

[00:12:13] Speaker 00:
He wrote memoranda that was on topics of importance to the CTS.

[00:12:19] Speaker 00:
that were widely read and distributed to CTS attorneys.

[00:12:23] Speaker 00:
There is not another case more important to CTS than the 9-11 case.

[00:12:29] Speaker 00:
So again, is it established clear and indisputably that he worked directly on the case?

[00:12:35] Speaker 00:
No, Your Honor.

[00:12:36] Speaker 00:
But it is clear and indisputable that he worked in an office alongside attorneys that were prosecuting the case and would have been participating in meetings and memoranda talking about the case.

[00:12:48] Speaker 00:
And that's what rises to the level of the appearance of partiality.

[00:12:52] Speaker 04:
Does your case depend upon the presiding judge having heard in his recollection?

[00:12:58] Speaker 04:
The presiding judge heard in his recollection?

[00:13:01] Speaker 04:
In his recollection of what he did and did not encounter?

[00:13:04] Speaker 00:
Well, I think one of the relevant factors is that when presented with

[00:13:11] Speaker 00:
the questioning of the petitioners during voir dire on September 10th, that was the best answer that he could give was, to the best of my knowledge, I did not work on the 9-11 case.

[00:13:21] Speaker 00:
That answer changes over time as, of course, it becomes abundantly clear that CTS is a big problem in his rulings denying the motions to disqualify

[00:13:32] Speaker 00:
It's suddenly, I did not work directly on the 9-11 case, is his answer, which is true.

[00:13:38] Speaker 00:
He was not detailed, much like other CTS attorneys like Jeffrey Gohering and Clay Trevet in our record, are detailed from CTS to the Office of the Chief Prosecutor to work on the 9-11 case.

[00:13:53] Speaker 00:
He was not that.

[00:13:54] Speaker 00:
He did not appear in court on behalf of the United States in Guantanamo.

[00:14:00] Speaker 00:
But that is not what's necessary to establish an appearance of partiality, as Counselor Roller said.

[00:14:07] Speaker 04:
But if it's true that he doesn't recall, then there's nothing to go against him.

[00:14:14] Speaker 04:
That would be apparent to any reasonable person.

[00:14:18] Speaker 00:
It's whatever the reasonable person knowing all the relevant facts.

[00:14:22] Speaker 00:
So one of the relevant facts would be that his answer during Lord Dyer was that he did not recall working on the 9-11 case.

[00:14:29] Speaker 00:
But what the reasonable person would also know is that

[00:14:33] Speaker 00:
CTS is a very small office.

[00:14:35] Speaker 00:
His own section boss said that he could have possibly sat in on 9-11 in military commission meetings where those cases were discussed.

[00:14:47] Speaker 00:
That was Anthony Assuncion, was his section chief, his immediate supervisor.

[00:14:52] Speaker 04:
The Marine Corps.

[00:14:53] Speaker 04:
Suppose he did.

[00:14:54] Speaker 04:
Suppose there was some instance in which he did, but he doesn't recall it.

[00:14:57] Speaker 00:
How can it bias him?

[00:15:00] Speaker 00:
At the end of the inquiry is not whether the individual can admit bias or admit that there's an appearance problem.

[00:15:08] Speaker 00:
It's that given, and many times, military judge Perella said, irrespective of my time at CTS and irrespective of my relationship with Jeffrey Gohering, one of the CTS attorneys, I can be impartial in this case.

[00:15:23] Speaker 00:
It's an objective test where looking at all the factors, even a judge would have to say there's an appearance problem here.

[00:15:32] Speaker 04:
Typically that involves somebody who does have knowledge and says, I can put that aside.

[00:15:38] Speaker 04:
Here we have someone who says, I have no knowledge, or at least no recollection.

[00:15:42] Speaker 04:
So there's nothing to put aside.

[00:15:44] Speaker 00:
Military Judge Perella could have hit his head and experienced amnesia and forgot about the entire time he was at CTS from July 2014 to June 2015.

[00:15:54] Speaker 00:
And it would not change the clear and indisputable record in this case based on the appearance of partiality.

[00:16:01] Speaker 00:
Because of his time at CTS working directly alongside prosecutors that are prosecuting this capital case,

[00:16:08] Speaker 00:
there's an appearance problem.

[00:16:11] Speaker 00:
Also, one of the big factors that a reasonable person would have to take into consideration is in December of 2014, the Senate Select Committee on Intelligence issued its report on the interrogation and detention program.

[00:16:25] Speaker 00:
commonly known as the torture report, a copy.

[00:16:28] Speaker 00:
There was only so many copies given to government agencies.

[00:16:31] Speaker 00:
The Senate gave a copy to DOJ, and of course, the CTS attorneys, because that is their mission to prosecute the 9-11 case, would have had access to that report and discussed it in December of 2014.

[00:16:43] Speaker 00:
That's exactly when Colonel Broad was there.

[00:16:45] Speaker 04:
You just said the mission of the CTS attorneys was to prosecute the 9-11 case.

[00:16:49] Speaker 04:
That was true of the CTS attorneys in that section, correct?

[00:16:54] Speaker 00:
It is specifically true of the individuals that are detailed to the Office of the Chief Prosecutor who wants Hamlet to prosecute the case.

[00:17:02] Speaker 00:
But CTS...

[00:17:04] Speaker 00:
office-wide as shown in the undisputed record based on interviews of Mike Mulaney, the chief of CTS, and Anthony Asensione said that work was fluid between the sections.

[00:17:18] Speaker 00:
Just because you were assigned to the al-Qaeda section or the non-al-Qaeda section or the domestic section doesn't mean you didn't participate in meetings involving al-Qaeda and involving the 9-11 case.

[00:17:32] Speaker 05:
As I hear your argument and your colleagues argument, it depends very heavily on us accepting your argument that Liddikee, is that how you pronounce it?

[00:17:42] Speaker 05:
Liddikee, whatever it is, doesn't govern 902A and B, right?

[00:17:48] Speaker 00:
Well, I would agree that Leidecky is a specific situation of 455A.

[00:17:56] Speaker 00:
And as counsel for Mr. Alasari pointed out, we're in a completely different situation in the military system.

[00:18:03] Speaker 05:
I understand your argument.

[00:18:04] Speaker 05:
But let's assume that we didn't agree with that.

[00:18:06] Speaker 05:
Let's assume that we think we're bound by the Supreme Court's interpretation of 455 applied here as well, OK?

[00:18:18] Speaker 05:
and that the only basis on which a former government lawyer's impartiality can be reasonably questioned, that's this case, 902A, are those instances covered by B, then would you concede then that you can't, it says,

[00:18:44] Speaker 05:
The military judge has acted as counsel, which is not true here, or in the same case generally.

[00:18:55] Speaker 05:
In other words, neither of those would cover your argument that he was on the staff of the office that was bringing Nile orientation.

[00:19:07] Speaker 00:
And I wouldn't call it concession necessarily.

[00:19:10] Speaker 00:
The undisputed record is that he was not detailed to the 9-11 case from CTS.

[00:19:16] Speaker 05:
But there's no evidence in the record at all that he worked on this case.

[00:19:20] Speaker 05:
Well, we don't know that for a fact yet.

[00:19:21] Speaker 05:
But we're at the clear and indis- Remember, my question is all in the context of us not accepting your argument that 902A and B are different.

[00:19:31] Speaker 05:
I mean, different from 455.

[00:19:33] Speaker 05:
That is, we're bound by what the civil court said.

[00:19:36] Speaker 05:
If we are,

[00:19:37] Speaker 05:
then it seems to me for you to be able to show clearly and indisputably a right to relief, there's got to be strong evidence that convincing evidence that the judge here worked on this case, acted as counsel to any offense charged or in the same case.

[00:20:03] Speaker 00:
Right?

[00:20:04] Speaker 00:
The petitioners attempted to get to the violence.

[00:20:06] Speaker 05:
That's why I start out by saying it seems to me you're both based on us accepting your argument that Latiki doesn't govern.

[00:20:14] Speaker 00:
Right.

[00:20:14] Speaker 05:
Because it can't get to the appeal of propriety standard in A beyond what B says.

[00:20:20] Speaker 05:
Correct?

[00:20:21] Speaker 00:
I would not agree with that, Your Honor.

[00:20:22] Speaker 05:
That's not, that's what Latiki says.

[00:20:24] Speaker 00:
Well, Latiki's situation did not involve extrajudicial determination under 455A.

[00:20:30] Speaker 00:
It was exclusively a determination of a judge

[00:20:34] Speaker 00:
who had made comments during the trial proceedings.

[00:20:38] Speaker 05:
Well, I know the facts are different.

[00:20:40] Speaker 05:
You're totally right.

[00:20:40] Speaker 05:
The facts of the case are different.

[00:20:42] Speaker 05:
But that stands for the proposition that when 902B is in play, there's nothing in 902A that goes beyond that in terms of the appearance of improv.

[00:20:55] Speaker 00:
Right.

[00:20:56] Speaker 00:
That's what it holds.

[00:20:57] Speaker 00:
Sure.

[00:21:00] Speaker 00:
What Your Honor also needs to consider is the Supreme Court has said also in Baker v. Hostetler that there are extraordinary situations where a prior government service can be considered under 455A.

[00:21:14] Speaker 00:
And that's cited in our petitions as well.

[00:21:16] Speaker 05:
And what is the extraordinary circumstance?

[00:21:18] Speaker 00:
The extraordinary circumstance, Your Honor, is that this Court has not yet had a situation to resolve an appearance of partiality situation involving a prior government attorney

[00:21:30] Speaker 00:
such as Colonel Perrella.

[00:21:32] Speaker 00:
We've had, obviously, Judge Silliman and Ray Muhammad, who, Your Honors, had to resolve a situation where it was a

[00:21:45] Speaker 00:
comments he made while as a law professor that would go to the guilt or innocence of the defendants.

[00:21:52] Speaker 00:
It was an expression of impunity.

[00:21:54] Speaker 05:
I mean, that was pretty clear and indisputable.

[00:21:56] Speaker 05:
I wrote that one.

[00:21:57] Speaker 05:
That was clear and indisputable, and so was Alan Sherry.

[00:22:01] Speaker 05:
Those were clear and indisputable.

[00:22:03] Speaker 05:
But I guess what I'm struggling with is to try to get you to tell me what in this case makes, what in the circumstance of this case makes this case like either of those.

[00:22:17] Speaker 00:
What the similarity is that there's a clear and indisputable right to an unbiased, impartial judge.

[00:22:23] Speaker 05:
Right, but there has to be some evidence, clear and indisputable evidence, that that's not this case.

[00:22:29] Speaker 00:
The clear and indisputable evidence is that an unreasonable person would perceive the appearance of partiality, but if your honor is

[00:22:36] Speaker 00:
The question really dives into the sufficiency of the record before this court.

[00:22:41] Speaker 00:
The reason why we don't know specifically exactly what Colonel Perrella did at CTS is not because the petitioners didn't try to discern that.

[00:22:50] Speaker 00:
It's because the government, the military judge Perrella, and to some extent the court of military commission review, didn't take this matter seriously and did not err on the side of more transparency and accountability.

[00:23:02] Speaker 00:
The government denied the discovery that would have shown exactly what Colonel Perrella did at CTS.

[00:23:10] Speaker 00:
The military judge Perrella, the target obviously that the disqualification motion, denied the motions to compel to get that information.

[00:23:18] Speaker 00:
Judge Perales in his ruling denying the motion to compel discovery said, as far as he could tell, there is no right to any discovery at all on a disqualification motion, which cannot certainly be the case because of the nature of this proceeding, the need for heightened due process and reliability of its findings because it's a capital case, and because the rule for military commission

[00:23:45] Speaker 00:
like the federal rules, provides for discovery that is material to the preparation of the case.

[00:23:51] Speaker 00:
There is nothing more material to the preparation of a motion that disqualified based on his work at CTS than discovery regarding his time at CTS.

[00:24:03] Speaker 00:
He denied that motion, and he denied follow-up questions from the petitioners during voir dire that would have answered those questions as well.

[00:24:11] Speaker 00:
So in every step of the process,

[00:24:14] Speaker 00:
The government and the military judge stymied the efforts to make this record a little bit more clear to yours.

[00:24:20] Speaker 00:
But our position, of course, is that there is a clear and indisputable record about the appearance of partiality.

[00:24:27] Speaker 00:
See, I am way over.

[00:24:28] Speaker 03:
Aren't you also arguing, besides his time in the CTS, that he had a separate friendship with the prosecutor, who is, I think, was he in CTS at the same time?

[00:24:44] Speaker 00:
Yes, Your Honor.

[00:24:45] Speaker 00:
Jeffrey Gohering was a prosecutor at CTS in 2014 and 2015.

[00:24:49] Speaker 03:
And then he batted the ex parte.

[00:24:51] Speaker 00:
And he was also a CTS prosecutor prosecuting the 9-11 case, basically from the get-go.

[00:24:57] Speaker 00:
From, I believe, 2008 onward, Jeffrey Gohering has been a prosecutor.

[00:25:02] Speaker 03:
So why don't you argue that makes it a little different?

[00:25:04] Speaker 00:
That is also obviously a relevant factor that would cause the reasonable person to question.

[00:25:09] Speaker 00:
And in particular, the way in which military judge Perella responded to questions about Jeffrey Gohering.

[00:25:17] Speaker 00:
He did not affirmatively disclose that he worked with Jeffrey Gohering at CTS.

[00:25:21] Speaker 00:
That was something that the judicial canons would have required him to do, and he admitted that he was bound by them, applicable to him through a JAG instruction to the Navy Marine Corps.

[00:25:33] Speaker 00:
But he didn't affirmably disclose that.

[00:25:36] Speaker 00:
It took questions from the petitioners to ferret out that he had this personal relationship with Jeffery Gohering.

[00:25:42] Speaker 00:
that he had run these races with him from 2007 and 2008, and they had stayed in contact.

[00:25:50] Speaker 00:
They had met in the late 90s and stayed in contact since.

[00:25:53] Speaker 00:
That is a relevant factor that goes into the equation as well.

[00:25:57] Speaker 00:
His failure to affirmatively disclose, and then when follow-up questions were attempted to be presented to him by the petitioners during the Boer Dyer, he shut them down.

[00:26:07] Speaker 04:
Very earlier, you quoted an evaluation or a memorandum to the effect that work was fluid across the three sections within CTS.

[00:26:17] Speaker 04:
Yes.

[00:26:18] Speaker 04:
But I also see Pirella saying, I can only recall being detailed to cases within my section.

[00:26:27] Speaker 00:
Right.

[00:26:27] Speaker 00:
And his recollection was he worked on domestic counterterrorism cases.

[00:26:33] Speaker 00:
And we know for a fact.

[00:26:35] Speaker 04:
And they were doing probable cause determinations.

[00:26:38] Speaker 00:
Correct.

[00:26:39] Speaker 04:
And there's one case that he worked on.

[00:26:41] Speaker 04:
Had he worked at all on a 9-11 case, it would have stood out in his mind, don't you think?

[00:26:51] Speaker 04:
He's doing domestic cases only.

[00:26:53] Speaker 00:
Well, that's what he recalls specifically working on.

[00:26:57] Speaker 00:
But again, that's not the end of the inquiry.

[00:27:00] Speaker 00:
And because of all the other information that has been induced into this record,

[00:27:05] Speaker 00:
It's only one part of the puzzle.

[00:27:08] Speaker 00:
And the bigger puzzle here is, or problem that the military commission has, is this public confidence problem.

[00:27:16] Speaker 00:
And if we're going to instill public confidence in this military commission system, as this court has expressed just a few months ago on the shuri, then we need to take these matters more seriously.

[00:27:28] Speaker 00:
and err on the side of more transparency, more accountability, more discovery about his time at CTS than what occurred here today.

[00:27:37] Speaker 00:
And if without that, then there is a loss of public confidence in the system.

[00:27:42] Speaker 00:
And that is why this is an extraordinary case that needs remedy today in a rate of mandamus.

[00:27:49] Speaker 03:
All right.

[00:27:50] Speaker 00:
Thank you.

[00:27:50] Speaker 00:
Thank you.

[00:27:52] Speaker 03:
Mr. Smith.

[00:28:06] Speaker 01:
Thank you, Your Honor, and may it please the Court.

[00:28:08] Speaker 01:
Jeffrey Smith on behalf of the United States.

[00:28:10] Speaker 01:
The petitions in this case should be denied because the petitioners cannot show a clear and indisputable right to the relief that they seek.

[00:28:18] Speaker 01:
I'd like to begin with the record before us.

[00:28:22] Speaker 01:
We provided to the court in the supplemental excerpts the entire voir dire.

[00:28:29] Speaker 01:
It was from 9 a.m.

[00:28:30] Speaker 01:
till 3 p.m.

[00:28:31] Speaker 01:
where Judge Perala answered questions from the defense counsel.

[00:28:34] Speaker 01:
And I'd just like to focus on one page because contrary to what you've heard,

[00:28:39] Speaker 01:
Judge Perala said, and this is on page 98 of the SCR, I do recall that none of the cases that I was working on involved anything other than Article III courts that had no workings with the OMC

[00:28:59] Speaker 01:
That's the Office of Military Commissions or the 9-11 case.

[00:29:03] Speaker 01:
So he did specifically recall that he didn't work on this case or on any other commission cases or even on any other al-Qaeda matters.

[00:29:12] Speaker 01:
And it's entirely unsurprising that he didn't work on these cases and that he didn't have any professional interaction with the people who did, because the cases are being prosecuted out of an office in Virginia that is headed by a military general.

[00:29:28] Speaker 01:
The CTS attorneys who work for this general on this case go to work every day in Virginia.

[00:29:34] Speaker 01:
They don't have an office at CTS, as Judge Perrella stated.

[00:29:40] Speaker 01:
They're not in the same place.

[00:29:41] Speaker 01:
Judge Perala saw Mr. Grohering only one or two times, or two or three times, one being the Marine Corps ball.

[00:29:48] Speaker 01:
One or two times at CTS, and those were at social events where he didn't discuss the substance of the case.

[00:29:59] Speaker 01:
What about the denial of discovery?

[00:30:02] Speaker 01:
So, well, as I noted, Judge Perala sat for the better part of a business day answering questions.

[00:30:07] Speaker 05:
What about the rejection of the motion for discovery?

[00:30:10] Speaker 01:
Okay, so I think there are two points here.

[00:30:13] Speaker 01:
The petitioners have shown no basis that there is any discoverable or relevant, set aside discoverable, relevant information that they don't already have.

[00:30:25] Speaker 01:
They even did their own investigation and their investigation is consistent with everything that Judge Perala said and just fills in details.

[00:30:35] Speaker 01:
I guess what they're asking for are the internal memorandum he wrote, the kind of things that DOJ doesn't give out when individuals are appointed to the Supreme Court or to this court.

[00:30:46] Speaker 01:
I mean, that's the kind of very sensitive internal deliberative process work that the government doesn't give out.

[00:30:54] Speaker 01:
And it doesn't have any relevance here.

[00:30:56] Speaker 01:
And the second point I would point out is the petitioners have never

[00:31:01] Speaker 01:
in their papers or in their argument today, set forth any legal

[00:31:07] Speaker 01:
right that they have to discovery in this type of thing.

[00:31:11] Speaker 01:
And if you compare it to, there's quite a few cases that we cite regarding recusal issues.

[00:31:17] Speaker 01:
None of those cases involve motions for discovery or a right to discovery.

[00:31:23] Speaker 01:
None of them set forth a right to discovery.

[00:31:25] Speaker 01:
And none of them, frankly, have anywhere near the level of disclosure of information that Judge Perella gave in this case.

[00:31:32] Speaker 01:
If you compare, for example,

[00:31:33] Speaker 01:
Then Judge Kavanaugh's disclosures in Baker and Hostetler, he gives the specific information that they're entitled to and no more.

[00:31:46] Speaker 01:
Judge Perala gave extensive background answering the questions again for hours.

[00:31:57] Speaker 01:
Now, Judge Tatel asked earlier about the relationship between Section 455 and Rule 902 of the Rules of Military Commissions.

[00:32:09] Speaker 01:
The fact is, as it pertains here, the rules are exactly the same.

[00:32:14] Speaker 01:
There are certain differences between the two rules, and they stem mainly from the fact that the

[00:32:22] Speaker 01:
The military rules, which are the same in court marshals as in military commissions, don't account for the possibility that a judge formerly was in private practice because military judges don't come from private practice.

[00:32:34] Speaker 01:
They're career military officers, generally JAG officers.

[00:32:40] Speaker 01:
And so the military rules don't have

[00:32:45] Speaker 01:
455B2 and 902B2 is essentially equivalent to, and for this case is entirely, subsequently the same as 455B3.

[00:32:59] Speaker 01:
Petitioner's argument today that the military rules are somehow different or that 455A and 902A should be interpreted differently despite the fact that there's no, the only difference between the two sections is that the military rules are gender inclusive, where the federal rule simply uses the masculine pronouns.

[00:33:24] Speaker 01:
This is an argument that they're making for the first time today.

[00:33:27] Speaker 01:
It's not in their papers, and they didn't make it below, and they have not elicited any support for the provision.

[00:33:44] Speaker 01:
My colleague brought up Baker and Hostetler.

[00:33:48] Speaker 01:
Again, that's then Judge Kavanaugh's opinion.

[00:33:52] Speaker 01:
What he said about the relationship of A and B in a context like this is that in order for prior government service to require disqualification, there must be, quote, rare and extraordinary circumstances arising out of prior government employment, but not covered or envisioned by subpart B. So that is,

[00:34:15] Speaker 01:
That is, there must be something about the prior employment itself that is different from what one would have anticipated.

[00:34:23] Speaker 01:
And there's nothing of that sort here.

[00:34:31] Speaker 01:
Judge Henderson asked about Mr. Grohering.

[00:34:36] Speaker 01:
The relationship between Mr. Grohering and Judge Perella is not a close one at all.

[00:34:42] Speaker 01:
And the characterization that they met and stayed in touch is not really accurate.

[00:34:50] Speaker 01:
In fact, while they are acquainted with each other, they met in the late 90s, both being military JAG officers in the Marines.

[00:34:58] Speaker 01:
They did not have much interaction, although they were both stationed in San Diego.

[00:35:01] Speaker 01:
Judge Perella

[00:35:03] Speaker 01:
described Mr. Grohering as, quote, just an acquaintance.

[00:35:09] Speaker 04:
Well, there was the team building exercise.

[00:35:11] Speaker 01:
Well, so that was, so a number of years later, in 2007, one of Judge Perrella's teammates, Judge Perrella needed a fourth member for his athletic team, and one of his teammates suggested Mr. Grohering.

[00:35:24] Speaker 01:
And on the basis that Mr. Grohering was, athletically speaking, the best available person,

[00:35:29] Speaker 01:
Judge Perala agreed to have Mr. Gohering on his team, or invite him on the team.

[00:35:34] Speaker 01:
And they did not train together.

[00:35:36] Speaker 01:
They came together the day of the event.

[00:35:37] Speaker 01:
They competed.

[00:35:38] Speaker 01:
They did it again the next year.

[00:35:40] Speaker 01:
And then after that, they didn't speak at all for years, until approximately 2014, when they happened to see each other at a social event together.

[00:35:50] Speaker 01:
And then after seeing each other at two to three social events, they didn't speak again for years.

[00:35:56] Speaker 01:
until Judge Perella was appointed to this case.

[00:36:01] Speaker 01:
So there's no friendship whatsoever.

[00:36:04] Speaker 01:
And even if there were, friendship, of course, is not

[00:36:08] Speaker 01:
a basis for a judge's recusal.

[00:36:10] Speaker 01:
And I would point to, there's a number of cases on this, but Judge Meda's opinion for the district court in Philip Morris explains this in some detail.

[00:36:21] Speaker 01:
And in that case, he and the attorney appearing before him were in fact friends.

[00:36:25] Speaker 01:
They had worked at the same law firm

[00:36:27] Speaker 01:
The attorney had hosted Judge Mehta and his wife in his home.

[00:36:32] Speaker 01:
Judge Mehta and the attorney had had lunch after Judge Mehta took the bench.

[00:36:37] Speaker 01:
But Judge Mehta observed that that clearly did not require disqualification because it was just an ordinary friendship and not something closer.

[00:36:45] Speaker 01:
Here, what we have is something far below an ordinary friendship.

[00:36:50] Speaker 03:
Well, I think, assuming we're under 455A also, and we can

[00:36:56] Speaker 03:
consider the appearance of partiality.

[00:37:00] Speaker 03:
Isn't it a matter of building on things?

[00:37:05] Speaker 03:
He's in an office with 40 lawyers.

[00:37:09] Speaker 03:
That's one point.

[00:37:11] Speaker 03:
One of those lawyers happens to be the prosecutor.

[00:37:14] Speaker 03:
That's the second point.

[00:37:16] Speaker 03:
The appearance, it seems to me, gets stronger

[00:37:26] Speaker 03:
the more points you have that question impartiality.

[00:37:33] Speaker 01:
Well, I would say two things.

[00:37:34] Speaker 01:
First, under 455A, or section A in the military commissions, courts can consider the aggregate.

[00:37:44] Speaker 01:
The statements that you're making, I think, are not entirely accurate.

[00:37:47] Speaker 01:
He's not in the same office.

[00:37:49] Speaker 01:
He's in a different state.

[00:37:50] Speaker 01:
He's in DC.

[00:37:52] Speaker 01:
The military commissions are being prosecuted out of Virginia.

[00:37:55] Speaker 03:
But there is contact in the office, as I understand it from the record.

[00:38:03] Speaker 03:
FBI agents are in different stations, but they know each other and talk with each other and work together.

[00:38:10] Speaker 01:
Well, Judge Perel has stated on the record that he never attended meetings of the full CTS.

[00:38:16] Speaker 01:
The attorneys who work on the military commissions work full-time on the military commissions, and they don't have offices in CTS.

[00:38:23] Speaker 01:
So Judge Perala explained that he saw Mr. Grohering, again, two to three times during that period, one of which was the Marine Corps ball, and that he did not recall seeing the other prosecutors at all, although it was possible that he could have met someone at it.

[00:38:37] Speaker 04:
Where does he say that he never attended a meeting of the full CTS?

[00:38:44] Speaker 01:
I don't think I have that pinpoint.

[00:38:48] Speaker 01:
I'm sorry.

[00:38:50] Speaker 01:
But he did say that.

[00:38:52] Speaker 01:
He attended only meetings within his session.

[00:38:56] Speaker 05:
Now, I would like to... It would help if you could give us that site.

[00:39:02] Speaker 01:
Okay.

[00:39:03] Speaker 01:
Can I get it to you later?

[00:39:05] Speaker 04:
Yes.

[00:39:05] Speaker 04:
Perhaps you could go to the deputy at the close of further reply.

[00:39:09] Speaker 01:
Yes.

[00:39:10] Speaker 01:
Okay.

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

[00:39:15] Speaker 01:
So a couple other points that I'd like to correct.

[00:39:19] Speaker 01:
The counter-terrorism section was not created in the wake of 9-11.

[00:39:22] Speaker 01:
The counter-terrorism section has existed for decades.

[00:39:25] Speaker 01:
The National Security Division was created, and it was created to bring the department's national security prosecutors in the same

[00:39:37] Speaker 01:
department, division rather, as the department's intelligence functions.

[00:39:45] Speaker 01:
And it was part of taking down the wall to prevent a future 9-11.

[00:39:48] Speaker 01:
The National Security Division doesn't exist to prosecute 9-11.

[00:39:52] Speaker 01:
It exists to oppose terrorism in all its forms, as well as other national security violations, and to prevent future attacks like 9-11.

[00:40:05] Speaker 01:
The CTS is split up, I think it's now four groups.

[00:40:09] Speaker 01:
The groups are not al-Qaeda, domestic, et cetera.

[00:40:14] Speaker 01:
They have no, and this is actually something that Mr. Associon told the investigator, they don't have specific subject matters.

[00:40:24] Speaker 04:
And I don't think it's true that Judge Perala... There weren't at the time three sections?

[00:40:30] Speaker 01:
I think there were three at the time, but there was not an al-Qaeda section and non-al-Qaeda section.

[00:40:34] Speaker 01:
Was there a domestic section?

[00:40:36] Speaker 01:
No.

[00:40:37] Speaker 01:
The citation that they have, their investigator talked to a paralegal who left in 2009, and I don't know how things were in 2009, but at the time Judge Perala was there, and their investigator also talked to his supervisor, who said that there weren't specific sections.

[00:40:53] Speaker 01:
Of course, none of this applies to the military commission people who are not there.

[00:40:57] Speaker 01:
They're working in Virginia exclusively on the military commission cases.

[00:41:04] Speaker 03:
Can I ask you, if it's in the record, I don't want you to take your time, do we know the pool of people from whom the judges are picked?

[00:41:14] Speaker 01:
Generally, yes.

[00:41:15] Speaker 01:
The judge is chosen by the chief judge for military commissions, and that was Judge Poll at the time.

[00:41:22] Speaker 01:
The pool that Judge Pohl chooses from, and this isn't the record, but again, I don't have the pinpoint site, is

[00:41:29] Speaker 01:
It's nominees of military judges who have to have at least two years of judicial experience, and they're nominated by the TJAGS, which is the head of the JAG service, the JAG organization for each of the three services.

[00:41:43] Speaker 01:
So Judge Perella was nominated by the TJAG for the Navy, and then TJAG for the Army, and the TJAG for the Air Force also nominate people.

[00:41:50] Speaker 01:
And then Judge Pohl, the chief judge, who at the time was Judge Pohl, chooses among the judges.

[00:41:56] Speaker 03:
And how many judges have there been in this case?

[00:41:59] Speaker 01:
In this case, I believe just Judge Polo, Judge Perala, and the current judge, Judge Cohn.

[00:42:05] Speaker 04:
It's a small service.

[00:42:07] Speaker 04:
Sorry?

[00:42:08] Speaker 04:
The JAG is a small service, a small unit.

[00:42:11] Speaker 04:
Yes.

[00:42:12] Speaker 04:
I mean, everyone who comes up through the training knows everyone else.

[00:42:15] Speaker 01:
Well, the Marine JAG is particularly small.

[00:42:18] Speaker 01:
Not all these judges, just to be clear, they're not, Judge Cohen, for example, is an Air Force judge.

[00:42:22] Speaker 01:
So it's not only Marine judges involved.

[00:42:24] Speaker 01:
But yes, the Marine JAG Corps is the smallest service.

[00:42:30] Speaker 01:
And of course, Judge Perrell also talked about how he knew General Baker, who is the head of the Military Commission Defense Organization, who is also a Marine JAG.

[00:42:46] Speaker 01:
And I would just conclude by noting, as we did in our brief, that there are numerous cases of prosecutors, including U.S.

[00:42:56] Speaker 01:
attorneys, leaving their office and hearing cases as district judges.

[00:43:01] Speaker 05:
Well, as Ms.

[00:43:02] Speaker 05:
Herron points out, the Article III situation is quite different because those judges don't then return to the U.S.

[00:43:09] Speaker 05:
Attorney's Office, right?

[00:43:13] Speaker 01:
That's true, but there's no reason to believe that Judge Pirello will return to CTS or to the Department of Justice.

[00:43:19] Speaker 04:
His current... He certainly hasn't ruled it out.

[00:43:21] Speaker 01:
Well, it's true.

[00:43:22] Speaker 01:
I suppose anything's possible in the future.

[00:43:25] Speaker 01:
He didn't say he would never consider it.

[00:43:27] Speaker 01:
But his current job is a non-legal job commanding security at embassies.

[00:43:35] Speaker 01:
So there's no reason to believe.

[00:43:37] Speaker 01:
I mean, a judge could return, I suppose, to government service.

[00:43:40] Speaker 01:
Sometimes judges do that.

[00:43:43] Speaker 01:
But it's not something that you necessarily expect in that case or in this one.

[00:43:47] Speaker 01:
But I don't think it's really a distinction.

[00:43:49] Speaker 01:
I'm sorry.

[00:43:49] Speaker 01:
Who's his employer now?

[00:43:51] Speaker 01:
He still works for the Marines.

[00:43:52] Speaker 01:
Yeah, he's a colonel in the Marines.

[00:43:57] Speaker 01:
His assignment is – he's the head of worldwide embassy security, that's my understanding.

[00:44:02] Speaker 01:
He's the head of what?

[00:44:03] Speaker 01:
He's the head of security at embassies for the United States, so the Marines are responsible for security at foreign embassies – or embassies abroad.

[00:44:12] Speaker 05:
Is that in the record?

[00:44:14] Speaker 05:
Were you just on the set?

[00:44:16] Speaker 05:
I don't doubt it.

[00:44:17] Speaker 05:
Is it in the record?

[00:44:18] Speaker 05:
I'm sorry?

[00:44:19] Speaker 05:
Is it in the record?

[00:44:22] Speaker 01:
Yes, I believe it is in the record.

[00:44:23] Speaker 01:
I don't know how specific the description is.

[00:44:25] Speaker 05:
But will the record make clear that he hasn't gone back to being a prosecuting lawyer?

[00:44:30] Speaker 01:
I believe it will.

[00:44:33] Speaker 05:
Maybe you could give us that site, too.

[00:44:35] Speaker 01:
OK.

[00:44:39] Speaker 01:
If there are no further questions.

[00:44:41] Speaker 01:
Thank you very much, and we ask that the petitions be denied.

[00:44:47] Speaker 03:
All right.

[00:44:47] Speaker 03:
Does Mr. Perry have any time left?

[00:44:49] Speaker 03:
All right.

[00:44:51] Speaker 03:
Why don't you take two minutes?

[00:45:02] Speaker 00:
Just to follow up on questions from, I believe, Judge Tatel.

[00:45:07] Speaker 00:
or I believe it was Judge Ginsburg, that the pool of available judges, and there's a footnote in the petition by Mr. Al-Hasawi, that just in the Navy or the Marine Corps alone, there are 450 plus individuals that would have fit the regulation with two or more years of experience at that time period.

[00:45:30] Speaker 00:
So it's a very large pool, larger than you might believe.

[00:45:35] Speaker 00:
And out of all those available, that was just the Marine Corps, then there's the Air Force available judges, the Army available judges, and the Navy available judges.

[00:45:44] Speaker 00:
Even the Coast Guard could conceivably have available judges.

[00:45:49] Speaker 00:
Out of all those judges, this is the judge, a judge that had just completed a couple years prior a nine-month stint working in counterterrorism section.

[00:45:58] Speaker 00:
That was the judge that was picked for the 9-11 case.

[00:46:04] Speaker 00:
At the end of the day, how do we resolve these lingering questions about what exactly he did at the counterterrorism section?

[00:46:12] Speaker 00:
if the record does establish that there was a clear and indisputable right to this discovery, and although discovery orders are generally not available for review, mandamus is an extraordinary remedy that can take the place in a discovery order situation.

[00:46:32] Speaker 00:
It's not something that was briefed or anything like that, but... Is it in the petition?

[00:46:37] Speaker 00:
No, it's not anything that was in the petitions.

[00:46:39] Speaker 00:
But in response to Your Honor's questions, I think

[00:46:45] Speaker 00:
there wasn't a clear abuse of discretion by Judge Perrella in denying that motion to compel the discovery and had the parties obtained information about his work at CTS.

[00:46:55] Speaker 00:
And again, the deliberative process privilege was not something the government asserted in response to that discovery request.

[00:47:02] Speaker 00:
Their response was, go ask Judge Perrella during voir dire, which again, takes this whole situation out of the 455 realm.

[00:47:10] Speaker 00:
In federal court, obviously you do not,

[00:47:14] Speaker 00:
war dire of federal judge to determine whether she is going to be, you know, impartial.

[00:47:20] Speaker 00:
But in the military system and in the military commission system, you do.

[00:47:24] Speaker 00:
And if, like Judge Perella, denies a motion to compel discovery that would be material to the questions of his partiality, if you're going to deny that motion to compel, you better allow a lot of questions to take the place of that discovery.

[00:47:38] Speaker 00:
And he denied those questions as well.

[00:47:40] Speaker 05:
So he has two marks.

[00:47:42] Speaker 05:
Just to follow up on Judge Ginsburg's question, did I understand you to say that you don't, in your petition here, have you challenged that decision?

[00:47:51] Speaker 00:
Can we challenge the discovery decision?

[00:47:54] Speaker 00:
Yeah.

[00:47:54] Speaker 00:
I think it's a record that is fully developed before the discovery.

[00:47:58] Speaker 00:
No, no, that's not the answer.

[00:47:59] Speaker 04:
You didn't ask for mandamus to compel discovery.

[00:48:02] Speaker 00:
No, we did not, Your Honor.

[00:48:05] Speaker 00:
Thank you.

[00:48:06] Speaker 00:
Thank you for your time.