[00:00:01] Speaker 04: case number 19-1212. [00:00:03] Speaker 04: Ms. [00:00:06] Speaker 04: Skelton for the petitioner. [00:00:07] Speaker 04: Ms. [00:00:07] Speaker 04: Daring for the respondent. [00:00:11] Speaker 00: Good morning, counsel. [00:00:12] Speaker 00: Ms. [00:00:12] Speaker 00: Skelton, please proceed when you're ready. [00:00:14] Speaker 04: Good morning. [00:00:14] Speaker 04: May it please the court. [00:00:16] Speaker 04: We are here this morning because the military commissions have refused to take this court's decision in al-Nashari seriously. [00:00:22] Speaker 04: There's the issue of the CMCR trying to circumvent this court's clear directions regarding remedy with the acknowledged error [00:00:31] Speaker 04: Judge Waits' application to be an immigration judge. [00:00:35] Speaker 04: But there's also the fact that the CMCR and the military commissions ignored the apparent conflicts that surrounded Matthew Blackwood, a senior member of the trial judiciary who was explicitly responsible for shaping judicial decisions. [00:00:49] Speaker 04: He presided over ex parte SIPA-like hearings with the prosecution without the military judge present. [00:00:57] Speaker 04: He used a judicial ruling as a writing sample secretly, [00:01:01] Speaker 04: to the National Security Division, which represents the government here. [00:01:04] Speaker 04: And he traded on his position as a senior member in the trial judiciary to get a job with a component of the Department of Justice that is also part of a military commission's prosecution team. [00:01:16] Speaker 04: No member of the public would consider this to be a fair and impartial judiciary. [00:01:21] Speaker 04: To be clear, Matthew Blackwood was not a law clerk in the sense of a federal judicial law clerk. [00:01:28] Speaker 04: As I mentioned, he presided over these ex parte SIPA-like hearings under military commission rule of evidence 505. [00:01:35] Speaker 04: This is something that a magistrate or a special master would do. [00:01:38] Speaker 04: In multiple instances, the military judges did not even have access to the classified computer systems. [00:01:46] Speaker 04: So Matthew Blackwood was the only one who did. [00:01:49] Speaker 04: He was a GS-15 subject matter expert, which was the same rank as Waits and Rubin, and he in fact outranked Judge Libretto. [00:01:58] Speaker 04: The judges were part-time on the military commissions, maintaining an active court martial docket, whereas Matthew Blackwood was the only senior member of the trial judiciary that was full-time assigned to the Hathi Commission. [00:02:13] Speaker 04: And he was, of course, long-term. [00:02:15] Speaker 04: He was there through multiple years as three judges came and went. [00:02:21] Speaker 04: He had a dynamic, innovative legal work that would play a major role in shaping case decisions. [00:02:28] Speaker 04: quote from his job description at page 799 of the Joint Appendix. [00:02:33] Speaker 04: So the ethics rules that are limited to law clerks simply don't address what his role is. [00:02:40] Speaker 04: He also testified how important. [00:02:42] Speaker 03: Ms. [00:02:43] Speaker 03: Kelton, if you could then say what are the ethics rules that should apply to Mr. Blackwood? [00:02:48] Speaker 03: You're suggesting he's more like a magistrate or a special master. [00:02:53] Speaker 03: I mean, do you think the judicial ethics apply to Mr. Blackwood? [00:02:58] Speaker 04: Absolutely, Your Honor. [00:02:59] Speaker 04: First of all, the judicial ethics apply to every member of the modern judicial family. [00:03:06] Speaker 04: The fact that there are some carve outs for other job searches is it just simply doesn't apply to Mr. Blackwood. [00:03:16] Speaker 04: The restrictions on how a magistrate would search for a job as their term comes to an end is far more applicable. [00:03:24] Speaker 04: And truly, what needed to happen is disclosure of his attempts to find a job with the party to the prosecution. [00:03:34] Speaker 04: And at that point, steps could be taken. [00:03:37] Speaker 04: Perhaps Mr. Altamire would have waived the apparent conflict, but the judges would have been able to then secure the integrity of the decisions coming out of their chambers. [00:03:48] Speaker 04: We are not suggesting that judges Rubin or Libretto intentionally shaped rulings to help Matthew Blackwood. [00:03:56] Speaker 04: The real issue is how did he shape rulings in ways that the judges did not even know? [00:04:01] Speaker 02: Ms. [00:04:03] Speaker 02: Hill, just to pursue the same question, you're seeking mandaneness, which means your relief, you must be clearly entitled, clearly and indisputably entitled to it. [00:04:16] Speaker 02: I've been unable to find any case in your briefs or anywhere else which says that a law clerk that simply applied for a job as opposed to one who got an offer has a disqualifying conflict. [00:04:29] Speaker 02: Am I right about that? [00:04:31] Speaker 04: Your honor, I actually disagree with that. [00:04:34] Speaker 04: But again, he's not really a law clerk. [00:04:37] Speaker 04: So those cases are the closest analog that a lot of the federal case law would have. [00:04:43] Speaker 04: But the fact that those cases [00:04:46] Speaker 04: skew a little bit differently should not concern the court because, in fact, the cases also say that there is a spectrum of behavior on a law clerk's job application. [00:05:00] Speaker 02: That's sort of just my point. [00:05:02] Speaker 02: That, combined with the fact that the job he ultimately got was with the U.S. [00:05:08] Speaker 02: Attorney's Office, right? [00:05:09] Speaker 02: It was. [00:05:10] Speaker 02: Yeah, which is different from the situation in Aldous Sherry. [00:05:14] Speaker 02: All of those combined, it's just, how do you make the case that you're clearly and indisputably entitled to this relief? [00:05:24] Speaker 02: It has to be, do you see my point? [00:05:27] Speaker 02: This is a mandamus, actually. [00:05:30] Speaker 04: Absolutely, Your Honor. [00:05:31] Speaker 02: So there can't be any doubt about the petitioner's entitlement to relief on this issue for us to be able to grant mandamus. [00:05:39] Speaker 04: And there is no doubt. [00:05:41] Speaker 02: First of all- I guess that's where I'm not yet convinced. [00:05:44] Speaker 02: I haven't seen that in the briefs. [00:05:46] Speaker 04: So the particular U.S. [00:05:47] Speaker 04: Attorney's Office where he got a job during his interview, he interviewed with a member of the prosecution team prosecuting Mr. El-Nashiri. [00:05:58] Speaker 04: During that interview, they discussed Mr. Blackwood's role as a senior member of the trial judiciary. [00:06:05] Speaker 04: And [00:06:06] Speaker 04: During his job application to the National Security Division, he secretly used a writing sample that was one of Judge Rubin's opinions. [00:06:19] Speaker 04: And that writing sample issued a ruling that excluded Mr. Altamir from classified sessions of the Military Commission. [00:06:29] Speaker 04: So he was trading on his position [00:06:32] Speaker 04: There's a spectrum of law clerk behavior, if we assume that law clerks are the correct analogy, that would raise issues. [00:06:40] Speaker 04: Whatever that line might be, Matthew Blackwood was so far on the other side of it, especially in light of the fact that he was presiding over these ex parte meetings with the prosecution. [00:06:54] Speaker 04: The Ninth Circuit's case in [00:07:00] Speaker 04: the First Arizona Bank is probably this court's closest case to look to. [00:07:07] Speaker 04: The thing is that most of the time, everyone does this right. [00:07:12] Speaker 04: And so there's no need to go back and look for exactly where these lines are. [00:07:20] Speaker 04: And that's why the rules are in place. [00:07:22] Speaker 04: We need objective rules so that there's no question. [00:07:26] Speaker 04: Here, there's [00:07:29] Speaker 04: whatever the line was, Mr. Blackwood had crossed it. [00:07:33] Speaker 04: And that is where our clear and indisputable right to relief comes from. [00:07:36] Speaker 02: This court- Let me ask you a different, no, you go ahead. [00:07:41] Speaker 03: Oh, okay. [00:07:42] Speaker 03: If we, I mean, if we assume that Blackwood's disqualification, you know, did not also disqualify, you know, judges Rubin and Labretto. [00:07:52] Speaker 03: So the only possible disqualification is based on judge weights. [00:07:58] Speaker 03: I guess, why isn't it an adequate remedy to allow reconsideration of Judge Waits' decisions as the CMCR is undertaking or has ordered to be undertaken? [00:08:10] Speaker 03: Why isn't that an adequate remedy here, at least to see how that process goes? [00:08:15] Speaker 04: For multiple reasons, Judge Rao. [00:08:17] Speaker 04: First of all, the government asked for reconsideration as a remedy in al-Nashiri, and this court rejected it. [00:08:24] Speaker 04: Specifically, [00:08:26] Speaker 04: This court commented that it had to vacate the CMCR's rulings as well because it was unsure how Judge Spath's rulings would have impacted it because ordinary appellate review after the fact cannot scrub the taint. [00:08:43] Speaker 02: But this isn't, but this, let me just interrupt because I think Judge Ryle's point is this isn't, the alternative here isn't appellate review. [00:08:51] Speaker 02: The alternative here is de novo review of all of Judge Weiss' orders. [00:08:56] Speaker 02: So it's a different problem. [00:08:57] Speaker 04: So that is still an inadequate remedy. [00:09:00] Speaker 04: But why? [00:09:02] Speaker 02: That's Judge Royall's question. [00:09:03] Speaker 04: Why? [00:09:04] Speaker 04: Sure. [00:09:05] Speaker 04: The reason is because Judge Waits' rulings that came at the very beginning of the case have shaped the entire litigation. [00:09:12] Speaker 02: For example. [00:09:14] Speaker 02: So your concern is about the rulings post-Judge Waits, right? [00:09:20] Speaker 04: certainly we are. [00:09:22] Speaker 02: So Judge Waits' rulings themselves- But what about his, what about, let's take this step at a time. [00:09:27] Speaker 02: What about for just his rulings? [00:09:28] Speaker 02: Wouldn't this be a perfectly adequate remedy to have a different judge de novo review every order you identify? [00:09:36] Speaker 04: Your Honor, it would not be adequate simply because we have seen that the CMCR and the military commissions have been unable to [00:09:46] Speaker 04: follow this court's clear direction, but truly all of all that's a different problem. [00:09:51] Speaker 02: I agree with that. [00:09:52] Speaker 02: That's a problem. [00:09:53] Speaker 02: But, but, but just focus on, on, on Judge Rao's precise question, which is why, why wouldn't [00:10:03] Speaker 02: de novo review of every order you identify, setting aside the question of post-Waits orders, just his. [00:10:09] Speaker 02: Why wouldn't that be adequate? [00:10:10] Speaker 02: Well, in fact, why is that any different than dissolving the commission? [00:10:15] Speaker 02: Isn't that the same thing? [00:10:17] Speaker 04: As a practical matter, if you void every ruling that Judge Waits made, it probably- No, no, no, no. [00:10:24] Speaker 02: That's not the question. [00:10:25] Speaker 02: No, the question is petitioner here gets to identify every order he wants reconsidered de novo. [00:10:32] Speaker 04: What's the matter with that? [00:10:34] Speaker 02: Isn't that even better? [00:10:35] Speaker 02: Because you get to keep the ones you like. [00:10:37] Speaker 04: Your honor, we certainly were offered that and rejected it because we saw it as an invitation to error. [00:10:43] Speaker 04: We don't know how even... But you haven't told us why. [00:10:46] Speaker 04: His later rulings were also informed by his earlier ones. [00:10:51] Speaker 02: No, but all of his rulings will be reviewed de novo. [00:10:56] Speaker 02: Judge Waits' rulings. [00:10:59] Speaker 02: I don't have any doubt you're right that his later rulings were influenced by his earlier rulings, but the offer here is to de novo all of them. [00:11:09] Speaker 04: It is impossible to extricate his rulings from the rest of the commission. [00:11:13] Speaker 00: We have- Can I just, not the rest of the commission, let's assume a world in which he's the only one who's issued any rulings. [00:11:23] Speaker 00: And if we assume that world, so we're not talking about the spillover consequences for any other judge who might come along later, let's just assume a world in which he's the only judge that's ever sat. [00:11:32] Speaker 00: In that universe, if the remedy is you get to pick any ruling you want that gets de novo reconsideration by somebody else now, why isn't that, that seems like something that's equivalent to al-Nashiri [00:11:49] Speaker 00: except to the extent it's not, it's to your advantage, because you get to preserve certain of his rulings. [00:11:53] Speaker 00: Otherwise, how is it any worse than what happened in Al-Nashiri? [00:12:00] Speaker 04: What these hypotheticals suggest is essentially vacating the entire proceedings, and it's a little hard to go [00:12:10] Speaker 04: to assume that the four years that followed Judge Waits didn't happen. [00:12:15] Speaker 00: So- I think all we're trying to do is isolate the source of the possible dispute here. [00:12:23] Speaker 00: And I just, as a predicate to that, I think it's helpful for all three of us if we just at least deal with the premise that if we're not talking about spillover consequences for rulings by the other judges and we're only talking about what Judge Waits did, [00:12:36] Speaker 00: then that the remedy that's in effect now, which is that you get to know of a reconsideration of any of those rulings that you choose, that's no worse than what happened in Al-Nashiri. [00:12:46] Speaker 04: If we found out about this error on the same day that Captain Waits retired and were able to get to this court at that very moment, then the remedy the CMCR proposed [00:13:01] Speaker 04: could be adequate. [00:13:03] Speaker 04: It does overlook all of the oral rulings. [00:13:06] Speaker 04: And of course, those rulings are also subject to vacator. [00:13:12] Speaker 04: Those rulings are also void. [00:13:14] Speaker 04: There are, of course, some various- Yeah, I think they should. [00:13:16] Speaker 00: Is there a dispute about that? [00:13:18] Speaker 00: I would assume that a ruling that it encompasses oral rulings, too. [00:13:21] Speaker 00: Is it not the case right now that you can get de novo reconsideration of any oral ruling by Judge Waits? [00:13:30] Speaker 04: That is certainly not how it has appeared from how the CMCR phrase things or how Judge Libretto did, where we were supposed to provide a list of AE numbers that provided orders that we wanted reconsidered. [00:13:45] Speaker 04: But that particular remedy of reconsidering oral rulings, that's a very difficult bell to unring. [00:13:53] Speaker 04: There are rulings on voluntariness of our clients [00:13:57] Speaker 04: waiving an appearance to participate in a particular hearing. [00:14:01] Speaker 04: Once that has been ruled on orally, it's our position that everything that follows, of course, has to be void because assuming that our client had not voluntarily waived an appearance, there's an oral ruling and everything that follows simply has no further legitimacy. [00:14:19] Speaker 04: Assuming that the remedy that this court is trying to fashion is supposed to sort of reinvigorate [00:14:27] Speaker 04: the integrity of the judicial system, parsing the potential, trying to draw the line that fine simply fails to do the sufficient reinvigoration necessary. [00:14:41] Speaker 04: And of course it entirely overlooks how interconnected all of the rulings are. [00:14:47] Speaker 04: For example, Judge Waits within a month of applying for his immigration judgeship, [00:14:55] Speaker 04: He entered a protective order that limited what information, Mr. Altamir, unclassified information Mr. Altamir could share with pro bono experts. [00:15:05] Speaker 04: Within a couple of months of that, he issued a ruling that limited Mr. Altamir's access to witnesses. [00:15:12] Speaker 04: These, of course, shaped everything that happened after that point. [00:15:17] Speaker 04: All of the 505 substitutions classified evidence shaped discovery litigation, including the deposition that just occurred. [00:15:27] Speaker 04: I see my time is up. [00:15:29] Speaker 00: Can I ask you one follow-up question just before we hear from Ms. [00:15:34] Speaker 00: Tarrin? [00:15:36] Speaker 00: Just assume for purposes of the question that I think that the remedy as to Judge Waits is [00:15:47] Speaker 00: is functionally the same as the remedy as was at issue in al-Nashiri, except that you get to identify certain orders that you actually don't want to have reconsidered. [00:15:58] Speaker 00: And then the question becomes, how would one deal with potential spillover consequences concerning the rulings by the judges who came along later? [00:16:09] Speaker 00: And is there a standard or some approach that you would suggest on identifying that corpus of orders that came along later that are sufficiently bound up in orders that Judge Waits issued? [00:16:26] Speaker 04: Your Honor, I believe that your question is an impossible task. [00:16:32] Speaker 04: And it also imposes an impossible burden on Mr. Altamir. [00:16:36] Speaker 04: It is essentially asking to impose an actual bias standard instead of an apparent bias standard. [00:16:43] Speaker 04: One of the things that the defense cannot do and should not be able to do is to point to precisely how the apparent bias impacted decisions. [00:16:54] Speaker 04: But we do know that Judge Waits' decisions impacted later ones. [00:17:00] Speaker 04: Every decision that he made on a substitution for classified evidence [00:17:05] Speaker 04: impacted investigations, impacted other motions, impacted other discovery litigation down the road. [00:17:12] Speaker 04: So there could be ways that a ruling even in favor of Mr. Altamir early in the case, but not a complete ruling in his favor, limited what our investigation was, limited what the defense could do in further discovery litigation. [00:17:31] Speaker 04: to parse it that finely would to read al-Nashiri down to a nub. [00:17:36] Speaker 04: It would be an impossible task. [00:17:38] Speaker 04: And again, that is exactly why an objective rule with a brighter line is necessary. [00:17:44] Speaker 02: It is supposed suppose just to pursue this a little bit. [00:17:49] Speaker 02: When you answered Judge Srinivasan's question, you said that that's to impose a petition here, an obligation to show [00:17:57] Speaker 02: to show actual bias. [00:17:59] Speaker 02: But suppose in answer to his question to you, suppose the standard was that a petitioner, all petitioner had to do was to show, I'm talking about the post-weights orders now. [00:18:14] Speaker 02: And remember, this is mandamus. [00:18:16] Speaker 02: So the question is, is there an adequate alternative remedy? [00:18:21] Speaker 02: Suppose all he has to do is show quote, like maybe a reasonable possibility [00:18:27] Speaker 02: that a later order was affected by an earlier order, an earlier weights order, just a reasonable possibility. [00:18:34] Speaker 02: Not that it was infected, but just a reasonable possibility. [00:18:41] Speaker 02: If the government, if the commission were willing to do that, how could we say that that is not an adequate remedy, at least at the moment? [00:18:54] Speaker 02: reason it might turn out not to be but we could that could be reviewable but at this point why wouldn't that be enough when you compare it to the alternative of dissolving the commission which we said in alma sherry was a draconian solution that we were trying to avoid sure uh judge tatel i have i have two different responses to your question first is that [00:19:19] Speaker 04: the reviewer looking at those prior decisions has no way to actually know how the apparent bias impacted it. [00:19:29] Speaker 04: So it essentially would be turning a legal question. [00:19:34] Speaker 02: Excuse me, I'm sorry to interrupt you. [00:19:35] Speaker 02: The question isn't whether the bias affected it. [00:19:38] Speaker 02: The question is whether the order [00:19:41] Speaker 02: that on de novo review has been reversed, affected. [00:19:44] Speaker 02: So for example, suppose in the de novo reconsideration, the judge takes a look at a weights order that denied discovery and he reverses that. [00:20:03] Speaker 02: I'm gonna grant discovery on that. [00:20:06] Speaker 02: That discovery motion should have been granted by weights. [00:20:09] Speaker 02: Now it seems to me that it's pretty obvious that that decision is going to have affected later decisions because it means that petitioner would not have had the evidence from that discovery order in support of his later motions. [00:20:27] Speaker 02: So it's not that the later motion is affected by the bias, it's just that it's affected by the fact that the motion was denied. [00:20:36] Speaker 02: Do you see my point? [00:20:38] Speaker 04: I do, your honor. [00:20:40] Speaker 04: I think that, I think candidly that your honor's question proves the point that it's an impossible task. [00:20:48] Speaker 04: And it's a difference, it is why a clearer rule is necessary. [00:20:56] Speaker 04: And also it is why we need to see that what has happened in the military commissions is a constant refusal to [00:21:10] Speaker 04: read this court's clear directions. [00:21:12] Speaker 04: They heard vacay or they read vacay and they heard reconsider. [00:21:17] Speaker 02: Okay, let me ask you, let me ask you this. [00:21:20] Speaker 02: You said my answer [00:21:22] Speaker 02: showed that it was impossible. [00:21:24] Speaker 02: So I have an impossible question for you. [00:21:26] Speaker 02: Do you have any sense, and I realize you may not know the answer to this. [00:21:29] Speaker 02: Do you have any sense at all as to what effect weights orders might have had on later orders? [00:21:36] Speaker 02: Is there any way to quantify that at this point so that we understand what the risk is of choosing one option over another? [00:21:44] Speaker 04: Do you mean to quantify in the sense of how many orders they impacted? [00:21:50] Speaker 02: Yeah, like how much of the post-weights decisions do you think are affected by what weights did? [00:21:59] Speaker 04: I can't give you a specific answer. [00:22:00] Speaker 02: There's no way to know, right? [00:22:02] Speaker 02: Do you know how many post-weights orders there are? [00:22:04] Speaker 02: Are there hundreds? [00:22:06] Speaker 04: There are hundreds. [00:22:07] Speaker 04: I mean, a certain number of those are motions to continue breaking schedule. [00:22:12] Speaker 02: Are there hundreds of substantive orders? [00:22:14] Speaker 04: There probably are. [00:22:17] Speaker 04: However, [00:22:19] Speaker 04: To set the court's mind at ease about the scope of litigation. [00:22:23] Speaker 04: Now, this is a big request. [00:22:25] Speaker 04: The notion of voiding the proceedings from the time of Captain Waits' application, I fully understand that that is a big request. [00:22:35] Speaker 04: But that is a necessary request. [00:22:38] Speaker 04: And the fact that there has been a substantial amount of litigation, it still hasn't gotten to judgment. [00:22:44] Speaker 04: We are still in a better situation than this court having to vacate [00:22:49] Speaker 04: The verdict and redo everything, including a trial in comparison to, for example, the 9 11 Commission that has about 33 or 36,000 pages of pre trial record. [00:23:04] Speaker 04: The body Commission has closer to about 3300 there's more than that because there's some closed hearings that I don't have transcript page numbers for [00:23:14] Speaker 04: a huge number of the actual days of hearings were short, an hour or less. [00:23:20] Speaker 04: There's also been delays in this court caused by Mr. Altamir's health. [00:23:26] Speaker 04: There's been delays because the government held him without charge for years. [00:23:32] Speaker 04: There are certain inefficiencies to what we are asking for, but they are far less [00:23:40] Speaker 04: than the inefficiency of having to redo this after verdicts. [00:23:45] Speaker 00: And I take it, so your position is, even though as you say it, the vacated remedy that you're asking for is a fairly extreme one, that there's nothing short of that that is workable or acceptable. [00:24:00] Speaker 04: Nothing short is workable. [00:24:02] Speaker 00: And in between what is on the books now, [00:24:06] Speaker 00: which is de novo reconsideration of everything Judge Waits did and complete eradication of everything that's happened to date. [00:24:13] Speaker 00: There's nothing in the immediate. [00:24:14] Speaker 00: And even if, for example, if you take the proposition that Judge Tatel asked you to engage with, which is a sort of reasonable probability standard, even if it was flipped so that it was incumbent upon the government to show why there's no reasonable possibility as opposed to incumbent upon you to show why there is a reasonable possibility, that regime still [00:24:35] Speaker 00: to you is something that's unworkable. [00:24:38] Speaker 04: It is unworkable. [00:24:39] Speaker 04: And the reason is because of the timing of things. [00:24:41] Speaker 04: Now, in Nishiri, there was sort of an intermediate remedy because there were four years of untainted litigation that preceded Judge Spath's job application. [00:24:52] Speaker 04: So there was a clear delineation of untainted proceedings. [00:24:57] Speaker 04: Here, that simply doesn't exist. [00:25:00] Speaker 04: It was only the arraignment that happened and nothing else. [00:25:03] Speaker 04: So in order to basically have an equivalent remedy of everything vacated post taint, it's actually the same remedy that we are asking for. [00:25:18] Speaker 04: And it's the reason why in Lilleberg, that is the default remedy, that it simply is an impossible task to put Humpty Dumpty back together again. [00:25:26] Speaker 00: Okay. [00:25:29] Speaker 00: Thank you, Ms. [00:25:30] Speaker 00: Skeleton. [00:25:30] Speaker 00: Well, unless my colleagues have further questions from you. [00:25:33] Speaker 00: We'll hear from Ms. [00:25:34] Speaker 00: Tarrin now. [00:25:36] Speaker 01: May I please the court? [00:25:37] Speaker 01: In response to your question, Judge Tatel, there are 149 substantive decisions of Judge Rubin and Judge Labrado. [00:25:46] Speaker 01: And of theirs, petitioner is able to point to only one that was affected by a decision of Judge Waits. [00:25:53] Speaker 01: And that was the decision of Judge Waits denying the defense motion for an order that would prohibit female guards from touching him. [00:26:00] Speaker 01: And when Judge Rubin was presiding over in court proceedings, he had ordered the petitioner to appear in person and the petitioner violated that order refusing to come to court by renewing his objection to being touched by female guards. [00:26:15] Speaker 01: And Judge Rubin explained that he was going to overrule that objection and not reconsider the decision of Judge Waits on the ground that petitioner did not have a legal right to dictate the gender of the guard force. [00:26:28] Speaker 01: But the CMCR explained that [00:26:30] Speaker 01: to the extent petitioner is able to point to any order, including that order, that demonstrates that the decision of Judge Rubin or Judge Libretto incorporated or otherwise relied upon a decision of Judge Waits, then the new military judge, Judge Zimmerman, must consider those decisions de novo as well. [00:26:50] Speaker 02: And so we think the same- What does that exactly mean? [00:26:53] Speaker 02: Could you just go- Yeah. [00:26:54] Speaker 02: Take that a little deeper. [00:26:56] Speaker 02: Suppose, take my hypothetical that I asked Ms. [00:26:59] Speaker 02: Skelton about. [00:27:01] Speaker 02: supposedly identify a weights order denying a certain kind of discovery? [00:27:11] Speaker 02: Because there are a lot of discovery orders here, right? [00:27:14] Speaker 02: Yes. [00:27:14] Speaker 02: Yeah. [00:27:15] Speaker 02: OK. [00:27:15] Speaker 02: So what would petitioner have to do in order to get de novo review of post weights orders [00:27:25] Speaker 01: just point to the decision of Judge Rubin or Judge Libretto that either incorporated or relied upon that decision. [00:27:33] Speaker 01: And that could include even decisions that address ex parte motions. [00:27:38] Speaker 02: Well, suppose it didn't rely on it, but suppose they say, well, look, Judge Rubin ruled a certain way against us, but that was because [00:27:52] Speaker 02: weights had denied us discovery, we needed to win that, to prevail on that order. [00:27:57] Speaker 01: Then we think the CMCR's remedy would require the new military judge to consider any decisions that were affected by that discovery order. [00:28:05] Speaker 02: Okay, so this is very helpful. [00:28:10] Speaker 02: So see if I can articulate it, what petitioner would have to show. [00:28:16] Speaker 02: Petitioner would simply have to say, take my hypothetical, petitioner would file, would list [00:28:23] Speaker 02: The Rubin orders that he believes are affected by the denial of a discovery order by weights. [00:28:35] Speaker 02: And under the offer the commission has made here, those orders that he identifies would be de novo reviewed. [00:28:44] Speaker 02: De novo reconsidered. [00:28:46] Speaker 01: Yes, your honor. [00:28:48] Speaker 00: But just based on his identifying it? [00:28:50] Speaker 02: Yeah. [00:28:53] Speaker 00: or would there have to be an assessment of whether, because as I understand what Judge Tatel asked you, and sorry to interrupt, but as I understand what Judge Tatel asked you, it's that the other side identifies an order by Judge Rubin or Judge Libretto as having been affected by an order issued by Judge Waits. [00:29:16] Speaker 00: And you're saying once that identification is made, then the subsequent order is reviewed [00:29:22] Speaker 00: Subjected in over consideration. [00:29:24] Speaker 01: The CMCR indicated that the new military judge would consider. [00:29:28] Speaker 01: I think that under the CMCR order, there would be an assessment by the military judge. [00:29:34] Speaker 02: An assessment of what? [00:29:36] Speaker 02: Do you have the actual language there? [00:29:39] Speaker 02: Is there any actual language we have about the post-waits orders? [00:29:45] Speaker 01: Well, the CMCR explained that with respect to this example about the [00:29:53] Speaker 01: a female guards motion that that claim that petitioner raises that this decision of Judge Rubin was affected by Judge Waits's decision should be presented to the military judge. [00:30:10] Speaker 01: And then the military judge provides petitioner an adequate remedy, which we believe would include mandatory de novo reconsideration of that decision by the new military judge. [00:30:21] Speaker 03: So does that mean the standard for the petitioner is just that they have to show it was affected by Judge Waits' ruling? [00:30:29] Speaker 03: Is that the standard? [00:30:31] Speaker 03: Yes, Your Honor. [00:30:32] Speaker 02: But does that mean they have to show it was affected or just say it was affected? [00:30:37] Speaker 02: They reasonably believe it was affected. [00:30:40] Speaker 02: It's a big difference. [00:30:42] Speaker 01: We think that they would just have to show that. [00:30:44] Speaker 01: We think that they would just have to identify that order. [00:30:50] Speaker 02: OK. [00:30:50] Speaker 02: That's what I was looking for. [00:30:52] Speaker 02: OK. [00:30:53] Speaker 02: So that's very helpful. [00:30:55] Speaker 02: OK. [00:30:58] Speaker 02: And then if they identify that order, the new judge would reconsider it de novo. [00:31:04] Speaker 01: Yes, Your Honor. [00:31:05] Speaker 01: Yes, Your Honor. [00:31:06] Speaker 00: OK. [00:31:07] Speaker 00: And even if you don't, just to push it a little bit further, [00:31:10] Speaker 00: They identify an order as having been affected by a prior order issued by Judge Waits. [00:31:15] Speaker 00: That's it. [00:31:15] Speaker 00: It's not that then you come in and say, wait a minute, they're wrong to say that order was affected by something Judge Waits did because there was no effect. [00:31:24] Speaker 01: Correct, Your Honor. [00:31:26] Speaker 00: Okay. [00:31:26] Speaker 00: I see. [00:31:27] Speaker 00: Okay. [00:31:27] Speaker 00: Thank you. [00:31:28] Speaker 00: Thank you. [00:31:31] Speaker 01: So with respect to the clerk, Mr. Blackwood, petitioner contends that Mr. Blackwood [00:31:39] Speaker 01: is more like a magistrate judge rather than a law clerk because he presided over ex parte meetings with prosecutors. [00:31:47] Speaker 01: But Judge Waits explained during voir dire that Mr. Blackwood was acting under Judge Waits' direction and supervision and was performing only administrative tasks during this ex parte meeting with the prosecutors. [00:32:02] Speaker 01: So for example, [00:32:03] Speaker 01: Judge Waits explained that he had instructed Mr. Blackwood to meet with the prosecutors and to ask them whether they had obtained Judge Waits' guidance on proposed substitutions and summaries for classified information, whether they had taken his guidance into account, and when they would be providing to Judge Waits. [00:32:26] Speaker 01: for his review and decision, those revised proposed summaries and substitutions. [00:32:33] Speaker 01: And then he instructed Mr. Blackwood to simply relay that information back to Judge Waits. [00:32:39] Speaker 01: And so Judge Waits explained that there was nothing inappropriate about this process and that he would have done it himself except for the fact that he was stationed in Italy. [00:32:48] Speaker 01: but that it was appropriate for Mr. Blackwood to do as a law clerk because he was performing simply administrative tasks. [00:32:56] Speaker 01: He was not making any judicial decisions. [00:32:59] Speaker 01: And in fact, as Judge Libretto explained during his war dire, Mr. Blackwood was prohibited from making any judicial decisions in Petitioner's Military Commission case. [00:33:11] Speaker 01: And as each military judge who has presided over petitioners Military Commission case has explained either for dire or testimony or declaration before the Military Commission, although they relied on their law clerks including Mr Blackwood for assistance. [00:33:29] Speaker 01: In each instance, it was the military judge, rather than the law clerks who are making the judicial decisions and petitioners military commission case. [00:33:39] Speaker 01: And so because Mr Blackwood was simply a law clerk. [00:33:43] Speaker 01: The normal recusal rule that applies to law clerks applies here, and that is that law clerks must be screened from cases when they accept a position with the party that appears before the court, not when they apply. [00:33:57] Speaker 01: And here, Mr. Blackwood accepted only one position, and that was a position with the U.S. [00:34:04] Speaker 01: Attorney's Office from the Western District of Missouri. [00:34:08] Speaker 03: If we were to reject the analogy of Mr. Blackwood to a term law clerk, what would the standard then be for disqualification of Mr. Blackwood as a government attorney working on this case? [00:34:25] Speaker 01: The only two standards we're aware of is a judge and a law clerk. [00:34:32] Speaker 01: And so we think, though, that there's no sound reason to depart from the normal rule here where Mr. Blackwood was not making any judicial decisions, but was only assisting the judges. [00:34:47] Speaker 01: The petitioner pointed out that one of the attorneys from the U.S. [00:34:51] Speaker 01: Attorney's Office from the Western District of Missouri agreed to serve as a taint attorney in the series military prosecution if certain mental health issues arose at sentencing there, but that attorney, Mr. Jeff Valenti. [00:35:07] Speaker 01: explained in a sworn declaration that he has no involvement in the prosecution of petitioners military commission case. [00:35:14] Speaker 01: And so because the employer and the party are not one in the same, no disqualifying conflict of interest arises as a result of his decision to accept that offer of employment. [00:35:27] Speaker 01: Unless there are any further questions, Your Honor, we respectfully request that this court deny the mandamus petition. [00:35:36] Speaker 00: Thank you, Ms. [00:35:37] Speaker 00: Tarrin. [00:35:37] Speaker 00: Ms. [00:35:37] Speaker 00: Skelton, we'll give you two minutes for rebuttal. [00:35:45] Speaker 04: Thank you, Your Honor. [00:35:46] Speaker 02: Ms. [00:35:47] Speaker 02: Skelton, could you, sorry, maybe the chief judge won't count this in your two minutes. [00:35:54] Speaker 02: Could you just tell us why, what the commission has offered as described by Ms. [00:36:02] Speaker 02: Tarrin doesn't give you everything you want. [00:36:05] Speaker 04: Your honor, what Ms. [00:36:06] Speaker 04: Tarrin described is not what either the commission or the CMCR has offered. [00:36:10] Speaker 04: At page 94 of the Joint Appendix, this is in the CMCR's decision. [00:36:17] Speaker 04: The CMCR said that Mr. Altamir's argument about the continuing impact, invisible impact is speculative and that the only one example related to the female guards. [00:36:31] Speaker 04: that that's the only one that CMCR ordered any further review of at all. [00:36:37] Speaker 02: So what- Suppose we understand Ms. [00:36:39] Speaker 02: Tern is telling us what this means today, and suppose our opinion reflects that, what she said, that is that you get, petitioner gets de novo reconsideration of any post-weights order that he identifies as [00:36:59] Speaker 02: possible being affected by the weights order. [00:37:03] Speaker 02: Why isn't that enough? [00:37:05] Speaker 04: It's not enough because it fails to account for a couple of things. [00:37:10] Speaker 04: It turns the question of taint into basically a true false question of was this prior ruling acceptable? [00:37:20] Speaker 02: No, no, no, no, no. [00:37:24] Speaker 02: First of all, this would only apply to a prior ruling that's reversed, right? [00:37:28] Speaker 02: So let's stick with my hypothetical about a discovery order. [00:37:32] Speaker 02: The new judge takes a look at a weights discovery order. [00:37:35] Speaker 02: It says it was affected by taint and I'm going to grant that discovery. [00:37:41] Speaker 02: He gets that discovery. [00:37:43] Speaker 02: And you say, okay, that means that the following post weights orders also need de novo review. [00:37:52] Speaker 02: And as I understand Ms. [00:37:53] Speaker 02: Tarrin's description of this remedy that you get that. [00:37:58] Speaker 04: So first of all, the initial reconsideration becomes the true false question instead of an essay question. [00:38:05] Speaker 04: But then even assuming the, even assuming the one order that Judge Rubin ordered the [00:38:14] Speaker 04: for cell extraction in January of 2017. [00:38:17] Speaker 04: That led to five spinal surgeries, which led to a host of questions about Mr. Altamir's competence and ability to participate, both mentally and physically. [00:38:31] Speaker 04: So that one ruling, candidly, voids the rest of everything that happened and every- Isn't that ruling getting reconsidered? [00:38:42] Speaker 04: that well but my my my words if the new judge decides that that ruling was wrong that isn't that part of the de novo reconsideration so it only gets reconsidered if judge weights his ruling gets overturned but even if judge weights his ruling doesn't get overturned then his ruling still had an impact on later rulings [00:39:11] Speaker 04: So this is really an attempt to parse things so finely that it eliminates the ability of any court to sort of rehabilitate the public perception of justice. [00:39:28] Speaker 04: The prophylactic remedy that this court considered in al-Nashiri, it stands even stronger here. [00:39:38] Speaker 04: We see that Al-Nashiri was not a case of one bad actor. [00:39:41] Speaker 04: We have seen the CMCR and the Military Commission eager to read it down to a nub. [00:39:48] Speaker 04: And trying to parse finally how exactly to implement the most limited possible remedy shows the impossible task of trying to scrub taint from a proceeding. [00:39:59] Speaker 04: When the taint arose at the beginning of the proceedings, simply the proceedings must be scrubbed themselves. [00:40:06] Speaker 02: I probably should have asked Ms. [00:40:08] Speaker 02: Tarrant this question, but has the Military Commission, have they solved this problem? [00:40:14] Speaker 02: Have they made it clear to these judges that they can't be looking for jobs while they're sitting on these cases? [00:40:18] Speaker 04: The record that we have right now, Your Honor, is that they have affirmatively not fixed this problem. [00:40:25] Speaker 04: Matthew Blackwood testified about this. [00:40:28] Speaker 04: Judge Labretto commented on this in Vaudier. [00:40:32] Speaker 04: that there has been no change in any ethical guidance that the trial judiciary has given. [00:40:38] Speaker 04: And in fact, Matthew Blackwood testified that he was aware of the issues percolating in al-Mashiri while he was applying for jobs with the National Security Division and other components of the Department of Justice, and it did not impact his behavior. [00:40:57] Speaker 00: Yeah. [00:40:58] Speaker 00: My colleagues have any further questions? [00:41:01] Speaker 00: Um, we'll bring this one to a close. [00:41:02] Speaker 00: Thank you, Miss Skeleton. [00:41:03] Speaker 00: Thank you, Miss Taron. [00:41:04] Speaker 00: We'll take this case under submission.