[00:00:01] Speaker 00: Case number 21-1208, Henry Abdelrahim Hussain Mohammed Al-Nashiri, Petitioner. [00:00:07] Speaker 04: Mr. Parity for the Petitioner, Mr. Fulner for the Respondent, United States. [00:00:13] Speaker 00: Mr. Parity, good morning. [00:00:14] Speaker 00: Please proceed. [00:00:17] Speaker 05: Thank you, Your Honor. [00:00:25] Speaker 04: Good morning, Judge Henderson, Judge Wilkins, and may it please the Court. [00:00:31] Speaker 04: It is clear and it is undisputed that torture and the use of evidence obtained by torture, except for the purpose of proving torture, is categorically forbidden by Congress. [00:00:43] Speaker 04: We therefore ask this court to enter a writ of mandamus because otherwise, evidence obtained by torture will continue to irreparably- Well, counsel, the merits don't seem to have much to do with this case. [00:00:59] Speaker 01: You've filed plenty of things done about her portrait that you have a great jurisdictional problem. [00:01:07] Speaker 01: Do you know at least three and maybe four jurisdictional problem? [00:01:11] Speaker 01: First place, there is a case that says we have here's one case is we have jurisdiction to issue a mandamus to the, uh, tourism court, whatever it's called, uh, the military review court. [00:01:26] Speaker ?: But [00:01:27] Speaker 01: That was where it's in aid of our jurisdiction. [00:01:29] Speaker 01: I'm not sure that really gets you there, but assuming you have otherwise jurisdiction here, as far as what's happened in the prior hearing, it's moving, isn't it? [00:01:39] Speaker 04: I know, Your Honor. [00:01:40] Speaker 04: And if I can address your questions in turn, this court has jurisdiction in order to protect the record on this case. [00:01:47] Speaker 04: And I think this case, like in Ray Papa Andrew, in Ray Clinton just a couple of years ago, when you're dealing with even evidentiary issues, but that will get to the integrity of the record that is ultimately available. [00:01:59] Speaker 01: I assume we have a man-damaged jurisdiction in the first place. [00:02:03] Speaker 01: You still have to get around mootness, standing, and rightness. [00:02:08] Speaker 01: And you don't. [00:02:09] Speaker 01: seem to get by many of them, do you? [00:02:12] Speaker 01: Whatever happened in that prior hearing is moot, is it not? [00:02:15] Speaker 04: It's not, Your Honor. [00:02:16] Speaker 04: And if I can point to a few reasons why it's not moot, at least under this Court's precedence, the first is that the respondent has disclosed that there is a vast ex parte record, about 100,000 pages, that sit like an iceberg under this case, in which military- As long as they're sitting by an iceberg, they're not [00:02:38] Speaker 01: You know, they don't give you standing then, do they? [00:02:41] Speaker 04: Oh, they do, because they do. [00:02:43] Speaker 01: There has to be a harm that is imminent, actual or imminent. [00:02:49] Speaker 01: And everything in the record says that it's not the case. [00:02:54] Speaker 04: I respectfully disagree about the state of the record, Your Honor, because they can see that that record is riveted with military commission prosecutors and military commission judges using evidence obtained by torture. [00:03:05] Speaker 04: We have no remedy against that record. [00:03:07] Speaker 04: But more importantly, there are, the respondents also concede that there are orders by the military commission that remain in effect, which they procured using evidence obtained by torture. [00:03:20] Speaker 01: And are those orders before us? [00:03:23] Speaker 01: You're asking about the use of the evidence. [00:03:28] Speaker 04: Yes, your honor. [00:03:28] Speaker 01: So that is yet to come. [00:03:30] Speaker 01: Oh, sorry. [00:03:32] Speaker 01: I don't understand what you're talking about about [00:03:36] Speaker 01: that record being out there against us in prior orders. [00:03:39] Speaker 04: I'm not sure that even before it is your honor, because we saw a petition in our petition. [00:03:45] Speaker 04: The relief we saw was essentially mandatory relief, preventing the government from using evidence obtained by torture, preventing the Military Commission judge from allowing the government lessons to use evidence obtained by torture and less authorized by statute. [00:03:58] Speaker 04: Um, and to vacate any would get it. [00:04:01] Speaker 01: but there's not an order giving harming you from which you can appeal because the order does not say they can be used. [00:04:07] Speaker 01: You're trying to say that it can't be used. [00:04:10] Speaker 01: Okay. [00:04:10] Speaker 01: So for right now, it's not being used. [00:04:13] Speaker 01: That, that, that prayer is moved. [00:04:16] Speaker 01: What is the present arm understanding analysis that is being caused by the respondent that can be remedied in this act? [00:04:25] Speaker 04: I would say this case actually looks a lot like True the Vote, which the court decided a few years ago, in which the government has come forward and said it has largely deceded using evidence obtained by torture. [00:04:36] Speaker 04: But there are still orders of the military commission, not just the record in this case being tainted, for use of evidence obtained by torture. [00:04:43] Speaker 01: Personal to your defendant that it is lying? [00:04:46] Speaker 04: Denying our defendant discovery based on evidence obtained by torture. [00:04:51] Speaker 04: The government concedes that in their opposition. [00:04:53] Speaker 04: basically say, well, that's a small matter that doesn't that shouldn't swallow the rule, but certainly for any just disability purpose. [00:05:00] Speaker 03: But the more fundamental problem that I see with your mandamus petition is if there's a conviction [00:05:09] Speaker 03: Why can't all of that be reviewed after the conviction? [00:05:13] Speaker 04: I would say for two principal reasons, Governor. [00:05:15] Speaker 04: One is quite practical, but other, I think, is quite important. [00:05:18] Speaker 04: The quite practical reason is the vastness of this record, this ex parte record, that we have no ability to seek to have reconsidered. [00:05:26] Speaker 04: We're actually barred by section 949 P-4 from even seeking reconsideration of the orders that are the product of that ex parte record. [00:05:34] Speaker 04: That ex parte record is about 100,000 pages pursuant to respondents stipulation and we have no ability to review that record and in fact that record is actually incomplete because as we noted in our petition as they don't oppose and as in fact the sport even noted itself in the Altamir case. [00:05:51] Speaker 04: not all of these ex parte proceedings dealing with typically evidence obtained by torture to be perfectly candid, but not all of these ex parte proceedings are even memorialized in the record. [00:06:02] Speaker 04: A number of them are done both ex parte and off the record, either with the military commission judge or the military commission judge's staff. [00:06:09] Speaker 04: So this court, in the absence of mandatory relief now to scrub the taints of torture from this record, this court will essentially get 100,000 page ex parte record at least [00:06:21] Speaker 04: spanning over a decade, during which neither military commission prosecutors nor military commission judges thought there was anything wrong with using evidence obtained by torture. [00:06:29] Speaker 04: And it will fall to this court's chambers to determine whether or not evidence was used by torture, and it won't even be able to do that fully because of the amount, not only because of the amount of evidence that they'll be reviewing, but because of the proceedings that are not even memorialized. [00:06:45] Speaker 03: You're answering this question by saying that the harm is that [00:06:50] Speaker 03: The record will be tainted with evidence procured by torture and that that should be scrubbed. [00:07:02] Speaker 03: But what particular injury does that infer upon your client? [00:07:12] Speaker 04: I would say one of very practical injury and the fact in the sense that these orders certainly the orders that are still in place all involved with holding discovery. [00:07:20] Speaker 01: So I think that you haven't brought an appeal from those orders. [00:07:26] Speaker 01: We're not reviewing those orders. [00:07:28] Speaker 01: You're asking for a mandamus. [00:07:33] Speaker 01: I'm sure with the existence of those orders. [00:07:35] Speaker 01: How that helps you and even your calls are trying to get a mandamus. [00:07:38] Speaker 01: What's going on now? [00:07:39] Speaker 04: Well, because the mandamus we saw it was to vacate any orders that were obtained using evidence obtained by torture. [00:07:46] Speaker 04: And the government has come and we're shadow boxing a bit here because we have no access to this 100,000 page record and to the government's credit. [00:07:54] Speaker 04: They came forward and said, we found at least two that are unquestionably painted by torture. [00:08:00] Speaker 04: And that's how they got the orders. [00:08:02] Speaker 01: And how do we even know whether those had anything to do with your client? [00:08:05] Speaker 04: because they were in the order entered in this case. [00:08:08] Speaker 04: They were entered in this case. [00:08:10] Speaker 04: I'm sorry. [00:08:12] Speaker 04: Did you appeal from [00:08:14] Speaker 04: learned about them. [00:08:15] Speaker 04: Indeed, we can only learn about anything that goes on in the ex parte process because of respondents' stipulation in their opposition that these orders, in fact, exist. [00:08:26] Speaker 04: And so asking us to prove what's in the ex parte record is we're blind there, Your Honor. [00:08:32] Speaker 04: By law, we are blind there. [00:08:34] Speaker 04: And it's the government that's created this record. [00:08:36] Speaker 04: But if I could get to the second part of my response to your question, Judge Wilkins, is I think the important reason is that torture is different. [00:08:44] Speaker 04: Torture is poison to the justice system. [00:08:46] Speaker 04: The Supreme Court has held that for over a century. [00:08:49] Speaker 04: And to allow the use of evidence obtained by torture to poison the record in a capital case, I think not only calls into question the public integrity of these proceedings, but it makes these proceedings an aberration. [00:09:05] Speaker 01: Torture may be different, but attempts to exclude evidence are not rare at all. [00:09:15] Speaker 01: Or are we going to be creating a precedent that everybody wants to most and eliminate to keep out of confession or coerce statement? [00:09:24] Speaker 01: Some other sort of heavy. [00:09:26] Speaker 01: Some people come in here and ask for a mandamus and instead of going through the trial process and taking the field that bad. [00:09:33] Speaker 04: Certainly not, because I think torture is different. [00:09:35] Speaker 01: And in this one, I would say you have any authority that says that procedure or [00:09:41] Speaker 01: pressing evidence because of torture is any different than for any other motion in limiting. [00:09:48] Speaker 04: I would say the most analogous case, it's only an analogy because thank God torture is not an issue that comes up too often in American judicial proceedings, but the close confessions come up from time to time. [00:09:58] Speaker 04: Oh, they do. [00:09:59] Speaker 04: But, um, but rarely does that legally. [00:10:02] Speaker 01: I mean, so I understand that there's a line between torture and course confessions, but not always sometimes crossed, I think. [00:10:09] Speaker 01: But, uh, [00:10:13] Speaker 01: That's one by a mandamus. [00:10:18] Speaker 01: You shouldn't be able to test the other, should you? [00:10:20] Speaker 04: If I can answer your honor's question just in turn, with respect to precedent, in Ray Papa Andrew is this court's case saying that when essentially international law questions are implicated by judicial proceedings, that there is a special need for mandamus, even where, for example, an assertion of immunity, as was the issue in that case, would not ordinarily be an appropriate subject for mandamus. [00:10:41] Speaker 04: And Congress's enactment of section 948R, [00:10:43] Speaker 04: A, is taken almost in hot verba from the Convention Against Torture. [00:10:48] Speaker 04: Article 15 of the Convention Against Torture categorically forbids the use of evidence obtained by torture in any proceeding. [00:10:54] Speaker 04: And so by not granting mandamus, essentially this court is being put in the position of allowing the United States judicial system to become a party not only to a violation of international law, but use cogent violation of international law, one of the most serious [00:11:07] Speaker 04: international law rules that we have, prohibition against torture. [00:11:11] Speaker 04: But if I could also just separate perhaps maybe some of your concerns on the practical, as a practical matter. [00:11:17] Speaker 04: The difference between sort of torturing and coercion, this case, I think, is an example of that. [00:11:22] Speaker 04: The statements that initially gave rise to this litigation were taken without getting into any classified matters, because this is an open session, when a naked man was being hung by his hands and hooded with a power drill to his head. [00:11:35] Speaker 04: And I strain to find anything like that in the US reporters. [00:11:39] Speaker 04: And if you're concerned about opening the floodgates, I think there are procedures in place because a prohibition on the use of torture is a prohibition on the use of torture. [00:11:50] Speaker 04: And here, the government does not dispute that the prohibition on the use of evidence obtained by torture was violent. [00:11:55] Speaker 03: But mandamus is ordinarily not used to grant declaratory, right? [00:12:01] Speaker 03: Isn't it black-letter law that you don't use mandamus for that because you bring a declaratory judgment action? [00:12:08] Speaker 03: You want declaratory relief? [00:12:10] Speaker 04: And we're not asking for declaratory relief. [00:12:11] Speaker 04: We're asking to have the orders that the government itself can see and other orders as well that were obtained using evidence obtained by torture to be vacated. [00:12:21] Speaker 04: That's an entirely backward-looking, non-forward-looking remedy. [00:12:25] Speaker 04: And if you're concerned about the flood rates, I think that that really is the threshold. [00:12:29] Speaker 04: We have to show that our entitlement to relief is clear and indisputable. [00:12:32] Speaker 04: Any mandamus petitioner does. [00:12:34] Speaker 04: There's a dispute about coercion. [00:12:35] Speaker 04: I imagine in most of those cases, they will not have a clear and indisputable right to relief. [00:12:39] Speaker 04: Here we have a clear and undisputed. [00:12:41] Speaker 04: right to relief, because the government not only concedes that we were correct in objecting to the evidence when they first attempted to introduce it, but that they should not have used it and that that practice that they had been engaged in for 10 years has essentially made the record in this case potentially riven with evidence obtained by torture. [00:13:01] Speaker 04: I do see that I've cut into my rebuttal time. [00:13:04] Speaker 03: I mean, why isn't a better practice here for you to [00:13:12] Speaker 03: asked the trial court to identify all of the orders that were, I guess, issued against your client's position, so either denying you discovery or allowing the admission of evidence or denying you some sort of relief. [00:13:39] Speaker 03: to identify every single one of those orders where, um, evidence of torture was admitted, um, in the procurement of that, those orders and then, um, issue asked them for a ruling as to all of those orders that all of those orders should be reconsidered and or with [00:14:06] Speaker 03: And then if you don't like what you get at that point, then you come back to us because then we like know what we're dealing with. [00:14:14] Speaker 03: And we have a case or controversy where we can order some specific relief. [00:14:19] Speaker 03: You're asking us, you're saying that you're shadow boxing. [00:14:22] Speaker 03: Well, we're shadow boxing too then. [00:14:25] Speaker 03: But you could take some action, it seems, so that we're not shadow boxed. [00:14:30] Speaker 04: To be fully clear, Your Honor, we did ask for that in the CMCR. [00:14:33] Speaker 04: And the CMCR said that that was not right. [00:14:36] Speaker 04: But if I could point to just two other obstacles that we would confront in getting that relief in the first instance for the Military Commission. [00:14:42] Speaker 04: The first is the Military Commission judge in this case has ruled on the merits on this issue. [00:14:46] Speaker 04: And even though that decision was sort of [00:14:49] Speaker 04: that's still a presidential opinion that has not been countermanded by any court. [00:14:58] Speaker 04: So that is the that is the law of this case. [00:15:07] Speaker 04: from seeking reconsideration of any order dealing with classified discovery. [00:15:12] Speaker 04: So we would essentially be asking for an inquiry into something that we would be in essence relying on the good graces of either the military commission or the government to respond to attempt to remediate. [00:15:23] Speaker 04: And again, we're not, we're not asking. [00:15:25] Speaker 01: As far as doing anything about the use of this evidence improperly that we can do something about, why isn't the procedural [00:15:34] Speaker 01: ask to go to trial and if it's used against you then appeal. [00:15:39] Speaker 01: If it's not used against you then the question remains moot like it is now. [00:15:43] Speaker 04: That's not correct your honor because the statute and frankly international law but more importantly I think the statute forbids the use of evidence obtained by torture at any stage of the military commission litigation and we already have discovery orders that are still in effect that have withheld exculpatory potentially evidence the names of witnesses in fact [00:16:01] Speaker 01: I don't know that the international law has anything to do with discovery. [00:16:05] Speaker 01: What we can grant relief on, it would be the improper use of it. [00:16:09] Speaker 01: That's correct. [00:16:10] Speaker 01: If it is used at trial, then you get to appeal it. [00:16:13] Speaker 01: But the statute is not used, then you don't have a case. [00:16:15] Speaker 04: But the statute sweeps broader than that. [00:16:17] Speaker 04: And that's ultimately what brought this case here, Your Honor, is that the statute forbids not simply the use at trial, but the use in any stage of the proceeding. [00:16:24] Speaker 04: And they have used it at various stages of the proceeding. [00:16:28] Speaker 01: They have orders that... And those have been done and they're moved. [00:16:31] Speaker 04: That's not correct, John. [00:16:32] Speaker 04: Those orders remain in effect. [00:16:34] Speaker 04: Those orders were not bit. [00:16:35] Speaker 04: Those orders literally today remain in effect. [00:16:38] Speaker 04: um so we we are in the same exact position we were when we first filed this petition in this court indeed when we first even objected uh to the decision of the military commission when it ruled that it could use evidence obtained by torture for any purpose other than trial and and that's the problem here is the government essentially has used this evidence they've built a massive record using evidence obtained by torture to shape the discovery that we have available to us in a capital case and i guess here's where [00:17:05] Speaker 03: I guess there's a disconnect here. [00:17:08] Speaker 03: If you have requested exculpatory evidence or a name of a witness, something where you were saying, give me something, and it wasn't given to you. [00:17:24] Speaker 03: And part of the reason it wasn't given to you was because of some evidence of torture that was admitted [00:17:33] Speaker 03: in the next party proceeding and that formed part of the reason why that wasn't given to you. [00:17:41] Speaker 03: If there is a conviction, you can raise as one round of error that there was something that we wanted given to us that wasn't given to right. [00:17:54] Speaker 04: So we can. [00:17:55] Speaker 04: But again, I think the limitations, and I don't want to repeat myself, but I think the limitations of that are is it does not remove the taint of torture from the record in this case. [00:18:03] Speaker 04: Everyone is going to, frankly, know that torture has tainted this case, that these are the torture tribunals. [00:18:09] Speaker 04: But I think more importantly, the only reason we even know about those two orders is because my friend, again, to their credit, disclosed them in their opposition. [00:18:19] Speaker 04: And again, just like through the vote, [00:18:23] Speaker 04: You can't be a mootness as an author on. [00:18:26] Speaker 04: factor. [00:18:26] Speaker 04: You can't be a little bit pregnant and you can't be a little bit moved. [00:18:29] Speaker 04: The case has either ceased, the case is moved, or it's not. [00:18:32] Speaker 04: And it's at least not moved because those two orders are still in place. [00:18:36] Speaker 04: And we only know about those orders because they disclose them. [00:18:39] Speaker 04: The existence of other orders is either going to be left. [00:18:43] Speaker 04: How do we remedy that? [00:18:44] Speaker 04: We actually don't have a way, because of the ex parte character of those proceedings, to remedy that ourselves, which means the only solution to that will be this court reviewing that record, ex parte, [00:18:56] Speaker 04: rich chambers and attempting to divine potentially how these rulings might have affected the case. [00:19:01] Speaker 04: And to the extent mandamus, again, is about protecting this court's jurisdiction. [00:19:06] Speaker 04: The easiest way, the most practical way, and I don't think it would be a heavy burden, frankly, for the government to meet, would be to simply vacate the ex parte record and allow the government to resubmit motions clean of evidence obtained by torture. [00:19:18] Speaker 04: To ensure that when the record does come up to this work, it's not. [00:19:23] Speaker 04: It's not trying to parse when potentially torture may have implicated and for the reasons. [00:19:28] Speaker 04: I know I'm over my time, but if I just say one more point, the reasons I identified in our 28 year letter from about a month and a half ago. [00:19:36] Speaker 04: It's not always going to be obvious when evidence obtained by torture, not even evidence obtained by torture involving this case, is being used. [00:19:44] Speaker 04: That's a fairly subtle process. [00:19:46] Speaker 04: And we do think that should be done in the first instance in the military commission. [00:19:49] Speaker 04: And the only way that will be done is if this court vacates the ex parte record, which will give an impetus both to respondent and to the military commission judge to proceed and clean up the record on this case under a correct view of the law. [00:20:01] Speaker 04: Under what, frankly, respondents now concede is a correct view of the law. [00:20:04] Speaker 04: Um, so I, I do see your honor that I have gone over my time. [00:20:08] Speaker 00: All right. [00:20:09] Speaker 00: Thank you. [00:20:09] Speaker 00: We'll give you a couple of minutes in reply. [00:20:11] Speaker 00: Mr. Palmer. [00:20:13] Speaker 04: Thank you. [00:20:32] Speaker 02: I'm Joseph Palmer from the Justice Department. [00:20:37] Speaker 02: Our primary submission is that the petition for mandamus is not right. [00:20:42] Speaker 02: The government withdrew the statements that gave rise to this litigation. [00:20:47] Speaker 02: The CMCR vacated the order that held that they were inadmissible. [00:20:53] Speaker 02: And the government now agrees [00:20:56] Speaker 02: that section 948 RA applies at all stages of a military commission case. [00:21:03] Speaker 02: And the government also acknowledges that to the extent that there are pre-existing orders in the ex parte record that are predicated on statements obtained through torture, that those orders could be vacated and reconsidered without the statements. [00:21:23] Speaker 02: But as the CMCR noted, the military trial judge has not yet been asked to conduct a process to determine whether there are any such orders exist. [00:21:33] Speaker 03: Well, your friend on the other side says that the rules preclude them from making such an act. [00:21:40] Speaker 02: I don't think the rules preclude the petitioner from moving the military commission to identify whether any such orders exist. [00:21:50] Speaker 02: particularly in the context where the government agrees that if there are such orders, they should be reconsidered. [00:21:57] Speaker 02: And so the reconsideration could take place once they're identified on the motion of the military commission. [00:22:04] Speaker 03: So let's suppose we deny the mandamus petition on the grounds that we're kind of holding you to the representation that you're making, that that's the position that you're going to take. [00:22:17] Speaker 03: and it gets remanded. [00:22:20] Speaker 03: And for whatever reason, at the Military Commission, the judge refuses to grant that relief and refuses to reopen the record or scrub the record, so to speak. [00:22:31] Speaker 03: Um, we have mandamus jurisdiction. [00:22:34] Speaker 03: Then if he if he brings another petition, [00:22:38] Speaker 02: I think in that circumstance, well, first I think that he would be required to go back to the CMCR, because essentially the CMCR said that the case was not right because that process had not yet occurred. [00:22:50] Speaker 02: And then the CMCR said that if that process did occur, that that would cure the rightness problem. [00:22:57] Speaker 02: We still think there is a mandamus jurisdiction problem [00:23:00] Speaker 02: because the mandamus standard requires that the issue not be capable of being reviewed on appeal from final judgment. [00:23:10] Speaker 02: And we think that this issue of admissibility of evidence is capable of being reviewed in that circumstance. [00:23:18] Speaker 03: But we do agree, we don't dispute that that... How can it be reviewed if petitioners council isn't privy to it? [00:23:30] Speaker 02: Well, review of ex parte records routinely takes place in Article III courts, for example, under the Classified Information Procedures Act. [00:23:41] Speaker 02: And the Military Commissions Act has provisions that closely parallel SIPA. [00:23:46] Speaker 02: And that act requires that the ex parte submission be recorded in the record and made available for the post-judgment review by the appellate court. [00:23:58] Speaker 02: And so this court's review could take place the same way as it does in national security prosecutions in Oracle Free Court reviewing district court determinations under SIPA the same way as occur in this case. [00:24:13] Speaker 03: I understand the SIPA process, but it's very easy to kind of identify what we are reviewing because all of the information [00:24:27] Speaker 03: that we're reviewing is classified. [00:24:29] Speaker 03: And so the question is, should it have been turned over? [00:24:33] Speaker 03: Should it have been redacted? [00:24:35] Speaker 03: Was there an adequate substitute that was provided, et cetera, et cetera? [00:24:40] Speaker 03: Here, the review would be quite different, wouldn't it? [00:24:44] Speaker 03: We would get hundreds of thousands of pages and then, without any guidance from the petitioner, have to, on our own, go through and see if there is any evidence that was admitted. [00:24:57] Speaker 03: do the torture and we're supposed to pick through that and figure that out and remedy that if that occurred. [00:25:05] Speaker 02: Well, we don't dispute that the military commission judge who issued those orders [00:25:14] Speaker 02: should do that review in the first instance. [00:25:16] Speaker 02: And the government itself has begun conducting that review also. [00:25:21] Speaker 02: And we have every incentive to correct any errors that may exist in the existing ex parte record. [00:25:28] Speaker 02: And following that process, of course, there would be review by the CMCR, which has full de novo fact-finding review power. [00:25:42] Speaker 02: And in that circumstance, then, there would be [00:25:44] Speaker 02: have already been a final judgment and reviewed by the CMCR to refine the issues that might remain for the sports review. [00:25:54] Speaker 02: And in terms of the difficulty, again, from our perspective, [00:26:11] Speaker 02: the military commission judge is the one in the best position to conduct that review in the first instance and then the court would have for it. [00:26:18] Speaker 02: That court's process and determination of how it made the judgment that the record was free from errors under section 948 RA. [00:26:32] Speaker 03: That kind of gets us back to where we began, which is what if the military commission judge [00:26:39] Speaker 03: declines to undertake that review or to entertain a motion from petitioner on remake. [00:26:48] Speaker 03: You're saying, well, then they would appeal that to the CMCR. [00:26:55] Speaker 03: And then let's suppose the CMCR doesn't take any action or or affirms. [00:27:05] Speaker 03: Do we have mandamus jurisdiction at that point? [00:27:09] Speaker 02: Well, I think that would cure the rightness issue, that that case would be right. [00:27:14] Speaker 02: I think we would still take the position that that's because it's an issue of admissibility of evidence that it could be reviewed on any appeal after final judgment. [00:27:23] Speaker 02: But I don't think that there's a likelihood that the military commission judge would do that because in the context of the statements that gave rise to this litigation, the military judge did agree to [00:27:36] Speaker 02: the government's request to withdraw the statements and did reconsider that order without relying on the statement. [00:27:43] Speaker 02: And I don't think there's any reason to doubt, especially where the government agrees that that review should occur, the military commission judge should be given the opportunity to conduct that review in the first instance. [00:27:58] Speaker 02: If I could say one thing briefly about the two orders that we've already identified through our own process, [00:28:06] Speaker 02: The government has also moved to have those orders reconsidered as well. [00:28:14] Speaker 02: And so as the record now stands, there are no orders of which the government is aware that contain section 948 R.A. [00:28:22] Speaker 02: errors that the government hasn't thought to reconsider. [00:28:27] Speaker 02: And we acknowledge that to the extent that the military judge's process exposes that there are any further such orders, [00:28:33] Speaker 02: that they could be reconsidered without such thing. [00:28:38] Speaker 03: So you're making the representation that that is the position of the government and that that's those are the actions that the government is going to undertake. [00:28:51] Speaker 02: Yes. [00:28:53] Speaker 02: The government has already begun a review process as as as we described and the government has every incentive to make sure that the [00:29:03] Speaker 02: um, to do its best to make sure that the record doesn't contain within it section 948 RA errors. [00:29:12] Speaker 02: And we also don't dispute that the military commission judge should be given the opportunity to do that review, um, itself. [00:29:23] Speaker 02: And as the CMCR noted, the military judge hasn't yet been asked to do that review, but we acknowledge that [00:29:31] Speaker 02: but that review would be appropriate. [00:29:34] Speaker 03: So you're answering my questions very carefully, which I would expect that you would, but you're answering, I asked the question the way that I did for a purpose because you were asking us to rule in a certain way based on representations. [00:29:55] Speaker 03: My view of that is that if I'm going to [00:29:59] Speaker 03: to take you up on that. [00:30:00] Speaker 03: And you should be a stop from acting contrary to the representations that you make to this court. [00:30:11] Speaker 03: It caused us to grant you the relief or to decline grant petitioner. [00:30:17] Speaker 03: The really you said the government has every incentive to take certain action, but you didn't say that the government is going to take [00:30:29] Speaker 03: that action and that you are representing to the court that that is the course that the government is going to undertake. [00:30:38] Speaker 03: You understand my question? [00:30:41] Speaker 02: I think so, except that I'm not completely sure of what is the action that the court is asking me to confirm that the government will take. [00:30:52] Speaker 03: Well, I've asked a series of questions about [00:30:57] Speaker 03: If this isn't right, then how will it become right? [00:31:02] Speaker 03: And how can petitioner get relief before the military commission with respect to reconsideration and or the vacature of orders? [00:31:14] Speaker 03: And I heard your last response is saying, well, we have every incentive to make sure that that happens. [00:31:24] Speaker 03: Um, what I'm trying to understand is, are you making representation that you are going to move for that to happen and not oppose a motion that is made by petitioner below for that to happen? [00:31:39] Speaker 03: Because if you're not prepared to make that representation, then we need to know that now. [00:31:45] Speaker 02: Thank you, your honor. [00:31:46] Speaker 02: So I, I, um, we [00:31:52] Speaker 02: do not dispute and will not oppose a review by the Military Commission judge to conduct a review to identify whether any ex parte orders exist that contain section 948 RA errors. [00:32:12] Speaker 02: We agree that that process should take place in the Military Commission. [00:32:26] Speaker 03: What about the issue that was the subject of the most recent 28 J letter with respect to the admissibility of evidence that may or may not have been procured as a result of torture that comes from a third party witness? [00:32:51] Speaker 03: Um, does that affect the ripeness or mootness here? [00:33:01] Speaker 02: I can't speak specifically to the statements that were made earlier this week. [00:33:05] Speaker 02: I just haven't had the chance to specifically review that transcript. [00:33:10] Speaker 02: But I can say that the government's position with respect to section 948 RA [00:33:18] Speaker 02: is that statements obtained through torture of anyone, whether it is the defendant or a third party, are inadmissible under section 948 RA at any stage of the proceedings. [00:33:34] Speaker 02: And my understanding [00:33:40] Speaker 02: And again, this is just based on a sort of secondhand report, is that the issue being discussed in the military commission has to do with derivative evidence, not statements that were directly attained from a third party. [00:33:57] Speaker 02: And on that issue, I think the government hasn't yet established a position. [00:34:03] Speaker 02: But with respect to whether the government doesn't [00:34:10] Speaker 02: maintain that under Section 948 RA statements of third parties are admissible. [00:34:17] Speaker 02: I don't think that issue is raised in the petition that's before you now. [00:34:20] Speaker 02: The statements that gave rise to this litigation were statements of the petitioner, and the parties haven't briefed the issue of statements of third parties or issues of derivative evidence. [00:34:34] Speaker 02: I encourage the court to allow us to file a response to the 28 day letter to clarify what was said earlier this week. [00:34:45] Speaker 02: Thank you. [00:34:46] Speaker 00: Well, Mr. Palmer, in your brief at 25, you're pretty categorical. [00:34:52] Speaker 00: You say, and I quote, the government has now concluded that section 948 RA prohibits the admission of statements obtained through torture or cruel [00:35:04] Speaker 00: inhuman or degrading treatment at all phases of a military commission. [00:35:11] Speaker 00: Are we now supposed to take that categorical statement and read into it so long as the torture or cruel, inhuman or degrading treatment concerned only the detainee who is on trial? [00:35:32] Speaker 02: No, Your Honor. [00:35:33] Speaker 02: The government's position is that the statute bars admission of statements obtained through torture of any person, whether it was the defendant or a third party. [00:35:52] Speaker 02: Either way, the statements are admitted. [00:35:54] Speaker 00: All right. [00:35:55] Speaker 00: What about this 28-J letter that says the prosecution indicated that it was the position of the United States [00:36:02] Speaker 00: that 948 RA only prohibited the use of evidence obtained by torture against the accused, not third parties. [00:36:12] Speaker 00: How was that indicated? [00:36:14] Speaker 00: I mean, this is a pretty serious change in position, if it's true. [00:36:25] Speaker 02: Your honor, what I can say before you now is that that's not the government's position. [00:36:29] Speaker 02: The government's position is that statements obtained through torture of third parties are inadmissible, and that I understand the issue that was discussed in the military commission to relate to derivative evidence, not statements obtained that were directly obtained. [00:36:50] Speaker 02: But I just ask the court's indulgence to give us a chance to. [00:36:55] Speaker 00: All right. [00:36:56] Speaker 00: But I at least want you to respond to this 28 J letter. [00:37:05] Speaker 02: Yes, the government will do so, Your Honor. [00:37:07] Speaker 00: All right. [00:37:11] Speaker 02: There are no further questions. [00:37:14] Speaker 02: Thank you. [00:37:18] Speaker 00: All right, Mr. Perry, why don't you take a couple minutes? [00:37:27] Speaker 04: Thank you, Judge Henderson. [00:37:30] Speaker 04: Just respecting the 28J, I was informed by Captain Miser that we received top-secret transcript of proceedings last evening, and we can provide that to this court under seal in case there's any ambiguity. [00:37:42] Speaker 04: At least as we understood it, and certainly based on the reporting from the New York Times, the position of the Military Commission prosecutor was that, yes, it began as a dispute about derivative evidence, but the argument was essentially made as the alternative argument [00:37:56] Speaker 04: that evidence obtained by torture of third parties was not subject to 948R. [00:38:04] Speaker 04: I believe on a standing challenge, if I understand the framing of the argument correctly. [00:38:09] Speaker 04: But we'll provide the transcript to this court, so there's no question. [00:38:17] Speaker 04: I want to actually touch on the main point, I think, of agreement between parties. [00:38:22] Speaker 04: I 100% agree that the military judge is in the best position to do this kind of audit, certainly not in this chamber's a decade from now when this case is on post-trial appeal, just until I think I was before you in this case, about eight years ago. [00:38:37] Speaker 04: And we anticipated that this case would probably be on appeal now. [00:38:40] Speaker 04: And that has not turned out to be true. [00:38:43] Speaker 04: But I think the most important reason why the writ is necessary is actually two reasons, if you might let me. [00:38:51] Speaker 04: One is these kinds of discrepancies. [00:38:55] Speaker 04: There's been a lot of shifting around of positions, a lot of difficulty in ascertaining what the government's position is. [00:39:01] Speaker 04: And so if there was ever a situation where just a clear statement from this court was going to be necessary and beneficial, [00:39:08] Speaker 04: to improving and correcting the record. [00:39:11] Speaker 01: Uh, it is this case where we have these kind of what we have before us is the case, the capital case and the arm that can come out of this is an error at the trial that could result in a terrible verdict. [00:39:30] Speaker 01: Uh, I'm not sure why it still isn't an adequate remedy [00:39:38] Speaker 01: or anything the government does wrong. [00:39:39] Speaker 01: This notion that there are orders out there in the ether, that we should do something about taking the orders out of the ether is, it seems to me, a very strange and new theory that we, that he is somehow harmed by the very existence of the orders, that we can secure that harm by the long process you talked about, rather than simply letting the case go to trial and see whether there is an attempt or an actual use of the improperly obtained evidence and if [00:40:08] Speaker 01: Uh, there is by that air some verdict reach as to which you can appeal. [00:40:15] Speaker 01: I'm not sure why we need an extraordinary equitable remedy. [00:40:19] Speaker 01: Solve what at its root is theoretical declaration declaratory releases. [00:40:28] Speaker 01: You can see that these orders were obtained improperly in the face and it would be improper to use them. [00:40:35] Speaker 01: Okay, fine. [00:40:36] Speaker 01: That's the law. [00:40:37] Speaker 01: We're not doing anything new. [00:40:40] Speaker 01: You yourself advanced that they can't be used legally. [00:40:44] Speaker 01: So why isn't it the norm that we would let this just go back for trial? [00:40:49] Speaker 01: And if there's an error, then we hear it on appeal. [00:40:52] Speaker 04: Well, again, there are orders that remain in effect. [00:40:55] Speaker 01: So what? [00:40:56] Speaker 01: So what? [00:40:56] Speaker 01: There's all kinds of orders that get made that never do result in any prejudice at a trial and never have to be reviewed. [00:41:04] Speaker 01: That happens in all kinds of cases. [00:41:06] Speaker 01: I understand the threats of being a representative in a capital case. [00:41:12] Speaker 01: But as far as the law involved, I don't see why this is any different than any other case, certainly than any other capital case, that if the orders are just out there, you're asking for declaratory relief, not for correction of an error. [00:41:27] Speaker 04: We are asking for vacancy, and so we're not just asking for declaratory relief. [00:41:32] Speaker 01: You're asking for a vacancy of something that right now isn't doing anything to you. [00:41:37] Speaker 04: That's not correct. [00:41:37] Speaker 01: It's withholding evidence. [00:41:38] Speaker 01: If it does something to you, then you get to appeal. [00:41:41] Speaker 04: It's withholding evidence from us. [00:41:42] Speaker 04: Make your pardon? [00:41:43] Speaker 04: It's withholding evidence. [00:41:44] Speaker 04: The two orders, at least that they've disclosed, are still in effect, or evidence to withhold evidence, including the names of witnesses who were implicated in the torture of my client. [00:41:56] Speaker 04: So that's doing something to us. [00:41:58] Speaker 04: And that's affecting how we can even have this trial, whether it will be a fair trial. [00:42:02] Speaker 04: And we're not up here because we're litigious. [00:42:04] Speaker 04: We're up here because this case has been going on for nearly 15 years. [00:42:08] Speaker 04: And our client believes he might be acquitted if he has a fair trial. [00:42:11] Speaker 04: But this is not a fair trial. [00:42:13] Speaker 04: The evidence is tainted by torture. [00:42:14] Speaker 04: And so if I can just briefly correct a few things my friend said. [00:42:18] Speaker 04: Is the prosecutors military commission prosecutors did not move to reconsider these orders or any words they moved to withdraw their pleadings. [00:42:27] Speaker 04: If you look at the order, the military judge actually issued respecting this that we submitted on Friday. [00:42:33] Speaker 04: He even notes that the rulings remain in effect and essentially they're simply. [00:42:38] Speaker 04: redacting, I don't quite know what that means, but they're changing, whitewashing motions that they submitted, leaving the orders in effect. [00:42:46] Speaker 04: And I think most important is the fact that the military commission judge disagrees with the government's new position. [00:42:53] Speaker 04: He disagrees with our position. [00:42:55] Speaker 04: And while, again, we welcome their change of position, we welcome the representations that they won't oppose, are requesting relief, [00:43:03] Speaker 04: There's no reason the military commission judge can or should grant that relief, because unless the position of the government is that the military commission judges are simply there to adopt whatever argument the government has adopted at this particular point in time, the military commission judge issued a merits ruling. [00:43:20] Speaker 04: It's lengthy. [00:43:20] Speaker 04: It's reasoned. [00:43:22] Speaker 04: It remains the law of this case. [00:43:24] Speaker 04: And in the absence of an order from this court, it will remain the law of this case. [00:43:29] Speaker 04: And so I understand this court's concerns, but I think the relief we've asked for is incredibly practical to implement. [00:43:35] Speaker 04: It's the easiest way to ensure the protection of the record on appeal. [00:43:39] Speaker 04: And it's the only way that this court can ensure that the justice system doesn't become a party to torture. [00:43:47] Speaker 04: I don't think I ever thought I would have to say that on the podium of an American court. [00:43:50] Speaker 03: But what's that issue? [00:43:53] Speaker 03: So as a prudential matter, [00:44:01] Speaker 03: government seems to be taking a string stronger position. [00:44:06] Speaker 03: Um, now he's that it believes that those orders should be vacated and reconsidered. [00:44:15] Speaker 03: At least I believe that that's what I heard your friend on the other side say as a prudential matter. [00:44:21] Speaker 03: Why shouldn't we see how that plays out? [00:44:26] Speaker 03: Because, um, um, [00:44:34] Speaker 03: If well, that's the question. [00:44:38] Speaker 03: Why shouldn't we wait to see how that plays out? [00:44:41] Speaker 03: Doesn't play out and you don't get relief and the CMCR doesn't grant relief. [00:44:50] Speaker 03: You can come back that. [00:44:51] Speaker 04: I have two reasons, if I might, Your Honor. [00:44:54] Speaker 04: The first is this case has already been going on for 15 years. [00:44:58] Speaker 04: And this government has been given a lot of time to see how things will play out. [00:45:02] Speaker 04: And asking, we may not be back here, if at all, in a number of years on this same issue. [00:45:09] Speaker 04: And I think, like judicial misconduct, which was the issue that previously tainted this case, I think torture is just as serious and just as [00:45:17] Speaker 04: damaging to the public reputation of the proceedings. [00:45:20] Speaker 04: And there's a need for the court to stamp it out as quickly and decisively and clearly as possible. [00:45:24] Speaker 04: So potentially, I would say that those concerns should outweigh. [00:45:31] Speaker 00: All right. [00:45:32] Speaker 00: If there are no more questions, Madam Clerk, if you'd give us an adjournment.