[00:00:00] Speaker 03:
Face number 23-1294.

[00:00:02] Speaker 03:
Inray Ansep Norjaman, petitioner.

[00:00:06] Speaker 03:
Mr. Thirshwell for the petitioner.

[00:00:08] Speaker 03:
Miss Daring for the respondent.

[00:00:11] Speaker 02:
Thank you, Don.

[00:00:13] Speaker 00:
Apologies for the interruption.

[00:00:18] Speaker 00:
Your Honor, in the Military Commissions Act of 2006, Congress very clearly and unequivocally barred

[00:00:30] Speaker 00:
the use of torture or the admission of torture in military commissions.

[00:00:37] Speaker 00:
And it's very clear that what they meant was all of military commissions.

[00:00:43] Speaker 00:
Military commissions, the whole process.

[00:00:47] Speaker 00:
The issue in this case, of course, is that the lower courts held that the 948R

[00:01:00] Speaker 00:
does not apply to the referral stage or the charging stage.

[00:01:09] Speaker 00:
The government at the time, earlier, took the same position as the CMCR.

[00:01:17] Speaker 00:
But by the time it got to this court, and I think maybe even in the CMCR, the government agreed with us.

[00:01:24] Speaker 00:
So we have a situation in which

[00:01:26] Speaker 00:
The parties are in agreement about the meaning of a statutory provision and the court is not, the lower court is not.

[00:01:37] Speaker 00:
And since they are not implementing Congress's clear intention, it falls to this court to do so via the petition for mandamus or other extraordinary writ.

[00:01:50] Speaker 03:
Why isn't what we held in Al-Nashiri number four that a similar admission of evidence derived from torture claim can be dealt with on direct appeal after the end of a commission proceeding?

[00:02:05] Speaker 03:
So there's an adequate alternative avenue for relief for closing mandamus.

[00:02:10] Speaker 03:
Why doesn't that apply in this case just as much?

[00:02:13] Speaker 03:
You have that same alternative adequate avenue for obtaining relief.

[00:02:20] Speaker 00:
In our case, there is, of course, the possibility of direct appeal after a final judgment, but the nature of the violation is affecting the entire course of the proceedings.

[00:02:36] Speaker 03:
That's something that can be raised.

[00:02:38] Speaker 03:
That's sort of saying it was harmful error that pervaded the proceeding, but that's still something that can be raised.

[00:02:45] Speaker 03:
at the end of the trial or at the end of the commission proceeding and review process.

[00:02:52] Speaker 03:
And so it's all for mandamus.

[00:02:55] Speaker 03:
It's just such an extraordinary and rarely used power and the number one

[00:03:02] Speaker 03:
factor that you have to show is that you don't have an adequate alternative avenue for raising these claims.

[00:03:10] Speaker 03:
And you just said, of course, we can raise it at the end of the proceedings.

[00:03:14] Speaker 03:
So I'm just given what we said in Al-Nashiri for, I'm not sure why that's not, doesn't make clear that my name is just foreclosed here.

[00:03:24] Speaker 00:
I didn't quite get a chance to finish my statement.

[00:03:27] Speaker 00:
It can be raised on appeal as an issue, but it is,

[00:03:32] Speaker 00:
Because of the nature of the torture program and the effect it had on the defendants, all of the accused in military commissions, the other detainees who gave statements to the FBI after similar abuse, and the evidence that was gleaned from that, there is a tangle of what were through the poisonous tree issues that would have to be

[00:04:01] Speaker 00:
We'll have to be untangled in any case in which torture is involved.

[00:04:08] Speaker 00:
And I want to emphasize that when I say torture, I mean the CIA's rendition detention and interrogation program.

[00:04:19] Speaker 00:
This is not about an individual officer choosing to beat a suspect with a rubber hose until they confess.

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Those cases are wildly different.

[00:04:31] Speaker 00:
from this one.

[00:04:33] Speaker 00:
The RDI program was unique in its severely damaged defendants and clients, making them difficult to actually cooperate with their lawyers or even accept their lawyers for a very, very long time.

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It's unique in how much evidence was derived from other detainee statements.

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These were individuals who were largely charged

[00:05:00] Speaker 00:
widespread conspiracy that culminated in the 9 11 attacks.

[00:05:05] Speaker 00:
All of the detainees had charges that implicated that and the government.

[00:05:10] Speaker 00:
So these are these are people who are talking about each other.

[00:05:14] Speaker 00:
They're talking to each other.

[00:05:15] Speaker 00:
Um uh and it's so that that is unique.

[00:05:19] Speaker 00:
It's unique in its scope.

[00:05:21] Speaker 00:
It's unique in the deliberate use of violence and mostly it's unique in

[00:05:28] Speaker 00:
in the systematic approval provided by the highest levels of the executive branch.

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And this was a policy that involved multiple agencies.

[00:05:41] Speaker 00:
And I don't need to go into it.

[00:05:43] Speaker 00:
I mean, you're familiar with the RDI program.

[00:05:45] Speaker 00:
But the point is, it is completely unprecedented.

[00:05:53] Speaker 00:
And part of that is, again, the issues that I'll talk about under the harmless error rubric also, because those same issues mean that it can be, if it does, let me put it this way, if it does wait for the final judgment and appeal, the defendant, Mr. Neurgemann, has to have the opportunity to dig up

[00:06:22] Speaker 00:
the background of all the evidence that he's got.

[00:06:26] Speaker 00:
And I mean, that's a thing that defense lawyers do in every case.

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But this one, again, it's complicated.

[00:06:37] Speaker 00:
In his case, many of the witnesses against him live in Yemen and were provided by the Yemeni police to the FBI to give their statements.

[00:06:51] Speaker 00:
you know, obstacles to making the analysis that would be required to separate out any torture taint from the untainted information.

[00:07:07] Speaker 03:
So when the requirement for the issue... The torture he was subjected to, I'm not asking about the details of it, but this whole RDI system different in Al-Nashiri.

[00:07:19] Speaker 00:
similar.

[00:07:20] Speaker 00:
They were, they were, I mean, well, I can go on, but Al-Nashiri was one of the very first individuals who were put in the RDI program, and he may have gotten the worst treatment, but they were all, everyone in the RDI program, Mr. Nurjibani's name is listed in the back of the SSEI executive

[00:07:40] Speaker 00:
as one of the people executive, sorry, executive summary of the torture report, his name is listed there.

[00:07:46] Speaker 00:
He was subjected to the same routine and approved in many cases, mostly by, you know, the office of legal counsel.

[00:07:56] Speaker 00:
So he's, I mean, he was tortured.

[00:07:58] Speaker 03:
And I, that's one of the- So the government itself agrees, no one here

[00:08:07] Speaker 03:
is trying to say what happened was OK, acceptable, or really even tolerable, at least in an evidentiary sense.

[00:08:18] Speaker 03:
The question I'm just struggling with is we were bound by prior panel decisions.

[00:08:24] Speaker 03:
We aren't sitting as a non-bank court today.

[00:08:26] Speaker 03:
And Alma Sherry was subject to the same RDI process that you're raising here, and no doubt would have had the same claims of pervasive

[00:08:37] Speaker 03:
um, corruption of evidence that you are presenting here.

[00:08:43] Speaker 03:
And yet we said the time to raise that is at the end of the whole proceeding and not before.

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Is there a basis for distinguishing this case from that one?

[00:08:56] Speaker 00:
I understand the question and there is.

[00:09:01] Speaker 00:
But it's because of the effect of the RDI program on the

[00:09:06] Speaker 00:
all of the evidentiary basis for the prosecutions of these cases.

[00:09:11] Speaker 00:
I mean, there is evidence that was not possibly tainted by torture, but a great deal of it is derived from statements by detainees made to either the CIA agents or the FBI after they were transferred to Guantanamo.

[00:09:28] Speaker 01:
This was a 1300 page binder in which we're talking about, was it like nine or so pages that were at issue?

[00:09:34] Speaker 01:
So did you all actually see everything that was in this binder?

[00:09:39] Speaker 00:
I did see it.

[00:09:43] Speaker 00:
I flipped through it.

[00:09:43] Speaker 00:
I'm not prepared to talk about individual items.

[00:09:46] Speaker 01:
But my point is that do you have any evidence of the

[00:09:51] Speaker 01:
the fact finders actually utilizing that information because here they're saying it's very sufficient otherwise, like even taking that out, there's enough evidence there.

[00:10:01] Speaker 01:
But I was just curious if you have any evidence of the fact finder actually utilizing that.

[00:10:05] Speaker 00:
Well, I mean, we do not.

[00:10:07] Speaker 00:
We're not privy to the convening authority's decision making.

[00:10:10] Speaker 01:
But there's nothing in any

[00:10:11] Speaker 01:
writing or ruling to suggest that it had to have come from those pages.

[00:10:15] Speaker 00:
That is true, but I would cite Fulminanti, which had a discussion of the very, very extraordinarily large effect on a jury or other decider, like the convening authority, of confessions by the individual who's being charged.

[00:10:33] Speaker 01:
Well, in El Nassuri, the government withdrew the pages.

[00:10:37] Speaker 01:
Do you have any idea about why not here?

[00:10:41] Speaker 00:
Well, I think the government will make the argument it makes.

[00:10:44] Speaker 00:
But I think its argument is essentially that process of examining the rest of the evidence and finding it sufficient without the torture statements is the equivalent of that Nishiri remedy.

[00:11:03] Speaker 00:
And the problem is that Nishiri dealt with individual

[00:11:10] Speaker 00:
decisions relating to mostly a discovery and the scope of discovery.

[00:11:17] Speaker 00:
But I mean, this is the original charge.

[00:11:21] Speaker 00:
So this is what renders the whole process as a process of ultra virus.

[00:11:31] Speaker 00:
I mean, it should not stand if the

[00:11:37] Speaker 00:
It was based on a statement of torture and the government can argue that it's there's sufficient evidence.

[00:11:44] Speaker 00:
I mean, otherwise, and I don't I mean, there may well be.

[00:11:47] Speaker 00:
I mean, I think there clearly is.

[00:11:49] Speaker 00:
I did read the statements that the CMCR cited for that said showed that he had

[00:11:58] Speaker 00:
Like that just raised more questions for me.

[00:12:00] Speaker 00:
I mean, and for petitioner.

[00:12:03] Speaker 00:
I mean, we need to get, unless we can dig under there and trace the who was tortured, who they talked to, and when.

[00:12:11] Speaker 00:
But if you're with your indulgence, I'd like to just move on to get some of the other mandamus requirements covered.

[00:12:22] Speaker 00:
And I'd say that the

[00:12:23] Speaker 00:
petitioners right to relief is indisputable.

[00:12:26] Speaker 00:
I mean, I don't think that the government will contest that.

[00:12:30] Speaker 00:
Congress was well aware of the convention against torture when it enacted section 948R.

[00:12:41] Speaker 00:
When it amended the section in the 2009 act in a fairly significant way, what it did was,

[00:12:50] Speaker 00:
expand the prohibition, not constrain it.

[00:12:54] Speaker 00:
I mean, it could have weakened it.

[00:12:55] Speaker 00:
It could have created exceptions.

[00:12:57] Speaker 00:
There are no statutory exceptions.

[00:12:59] Speaker 00:
I mean, the CMCR simply reads one of the terms admissible as meaning admissible at trial only.

[00:13:11] Speaker 00:
And that, of course, is one of the technical meanings that admissibility can have.

[00:13:16] Speaker 00:
But it is perfectly consistent with all the other

[00:13:20] Speaker 00:
um, the other meanings that it has in other contexts.

[00:13:23] Speaker 00:
And like it could be evidence that's used a trial that convention against torture says, you know, evidence that's invoked at trial.

[00:13:35] Speaker 00:
All of those things are the equivalent of the admissibility that the Congress was talking about in that section.

[00:13:44] Speaker 00:
I mean, I don't want to beat this to death, but it's, it's, um, it's hard to understand what

[00:13:51] Speaker 00:
justification would be in terms of the purpose, the legitimate purpose for finding that only applied to trial.

[00:14:00] Speaker 03:
You're not asking to have the whole prosecution thrown out, though.

[00:14:03] Speaker 03:
I thought you said in your petition that you just want them to go back and consider the referral process without any torture-based evidence.

[00:14:12] Speaker 00:
Well, we do want to.

[00:14:15] Speaker 00:
vacate the underlying charge sheet.

[00:14:21] Speaker 03:
You didn't dispute that this would make the case go away, that they could do... You're not contending that they couldn't then... The case will go away.

[00:14:29] Speaker 00:
The case will go away.

[00:14:30] Speaker 03:
I mean, if they... Can they do another referral based on non-torture based evidence in your opinion?

[00:14:36] Speaker 00:
Yes.

[00:14:37] Speaker 03:
Okay, that's what I'm trying to say.

[00:14:39] Speaker 00:
That is our position.

[00:14:41] Speaker 03:
Then it's not so pervasive that they couldn't do this.

[00:14:46] Speaker 00:
They could try.

[00:14:47] Speaker 00:
The same issues would arise, but the pure issue of the use of statements directly out of a tortured accused mouth would be gone.

[00:14:56] Speaker 00:
That's the big problem.

[00:14:58] Speaker 00:
The other evidentiary problems that torture creates are there, and they're there in every case.

[00:15:06] Speaker 00:
And Mr. Neurgemann will undoubtedly pursue them if it is in fact dismissed and they re-refer him.

[00:15:14] Speaker 00:
but it's the use of the personal statement.

[00:15:18] Speaker 00:
I'm gonna address one issue that has come up.

[00:15:28] Speaker 00:
In terms of the clear and indisputable right to the relief, the standard is generally you have to point to a case

[00:15:42] Speaker 00:
that says this is a violation.

[00:15:45] Speaker 00:
And of course, we do not have that.

[00:15:48] Speaker 00:
And this court has said that the quote has never required the existence of a prior opinion addressing the precise factual circumstances or statutory provision at issue in order to find clear error justifying mandamus relief.

[00:16:05] Speaker 00:
And that's United States v. Fokker Services, 818, F3rd, 733, 2016 case.

[00:16:16] Speaker 00:
So it's clear.

[00:16:18] Speaker 00:
I mean, Fokker explains why the uniqueness of this case is not an impediment to your finding that the rate is warranted in this case.

[00:16:33] Speaker 01:
But indisputable means there's no debate.

[00:16:38] Speaker 00:
Well, that's true.

[00:16:41] Speaker 01:
But I should have said earlier that you believe the government would agree with you, and I don't think they did.

[00:16:47] Speaker 00:
Oh, yeah.

[00:16:49] Speaker 00:
I mean, maybe not.

[00:16:50] Speaker 00:
I mean, I don't know.

[00:16:51] Speaker 00:
I mean, I think what they would find indisputable, they'll speak for themselves.

[00:16:56] Speaker 00:
I think they will concur that these statements should not have been entered.

[00:17:02] Speaker 00:
into the referral binder, and they should not have been considered in connection with the charges.

[00:17:07] Speaker 00:
I mean, the rest, they can argue.

[00:17:11] Speaker 00:
So similarly, other adequate means of relief, talked about that a little bit.

[00:17:19] Speaker 00:
And it's clearly, one thing that stands out, it's very appropriate under the circumstances.

[00:17:25] Speaker 00:
If for no reason that it's a decision affirming

[00:17:31] Speaker 00:
the lower courts opinion or failing to rule it amounts to a green light, a legal green light for Adam to the government at a minimum to torture individuals to seek a basis for charging them.

[00:17:52] Speaker 00:
Um, and that I've just, I say at a minimum because it's not holding of the CMC or is not clear.

[00:17:57] Speaker 00:
They, they say in one place, you know, admissible in all pretrial proceedings.

[00:18:02] Speaker 00:
And they say in another, maybe it means only referral.

[00:18:04] Speaker 00:
So I can only, I'm talking about referral here, but that the, um, uh, excuse me, but the, the, the point is,

[00:18:20] Speaker 00:
this case is not comparable.

[00:18:21] Speaker 00:
And the fact that it's not comparable, actually, in these unique circumstances, is not something that should militate against mandamus.

[00:18:33] Speaker 00:
And appropriate under the circumstances, the Fokker Services case addresses the appropriateness of the entry of the mandamus there.

[00:18:50] Speaker 00:
Fokker is a significant case because it closely resembles this one.

[00:18:55] Speaker 00:
I mean, it was a case in which the parties in a criminal case came to an agreement under the Speedy Trial Act.

[00:19:06] Speaker 00:
And it was a deferred prosecution agreement, DPA.

[00:19:10] Speaker 00:
So the government agreed to postpone

[00:19:16] Speaker 00:
charges while the defendant had the chance to rectify the wrongdoing itself.

[00:19:23] Speaker 00:
And this was a company, a corporate defendant.

[00:19:29] Speaker 00:
And everyone agreed, we'll do that.

[00:19:32] Speaker 00:
And the section, there is a specific section, I think it's 3161H2,

[00:19:40] Speaker 00:
of the Speedy Trial Act that speaks directly to the DPAs and their legitimacy.

[00:19:49] Speaker 00:
It includes the language, statutory language.

[00:19:52] Speaker 02:
Mr. Thirshaw, you're over your time.

[00:19:54] Speaker 00:
I am.

[00:19:54] Speaker 02:
We'll give you a couple of minutes in reply.

[00:19:56] Speaker 00:
Okay.

[00:19:56] Speaker 00:
Thanks very much.

[00:19:57] Speaker 00:
I urge you to read.

[00:20:17] Speaker 04:
the court.

[00:20:21] Speaker 04:
The court.

[00:20:23] Speaker 04:
Petitioner cannot establish an entitlement to rid of mandamus dismissing his military commission case because he has an adequate alternative remedy.

[00:20:32] Speaker 04:
Petitioner acknowledges that he can raise his claim on direct appeal from final judgment that the military judge

[00:20:46] Speaker 04:
considered materials in the referral binder that he or she shouldn't have.

[00:20:51] Speaker 04:
But petitioner contends that this alternative remedy is inadequate because the taint of torture has irreparably contaminated the proceedings.

[00:20:59] Speaker 04:
But that isn't true because as the Military Commission demonstrated, it's possible for this court

[00:21:05] Speaker 04:
undirected appeal from final judgment after the CMCR reviews the claim to determine whether the military judge aired and denying this motion to dismiss for a defective referral by simply just excluding the excerpt from the 9 11 Commission report that petitioner challenges here reviewing the remaining materials in the referral binder and then assessing whether the military judge aired and making that probable cause determination.

[00:21:30] Speaker 03:
A quick clarification on

[00:21:34] Speaker 03:
But there's talk about sort of government concessions here.

[00:21:39] Speaker 03:
My understanding is that the concession was the use of torture derived evidence in pretrial proceedings.

[00:21:47] Speaker 03:
Is that right?

[00:21:48] Speaker 04:
The government has not taken trial.

[00:21:51] Speaker 04:
The government has not taken a position on whether Section 948R would apply to the referral process, as the Military Commission explained below.

[00:21:59] Speaker 04:
I'm just trying to ask what the government has thus far said.

[00:22:04] Speaker 03:
Okay.

[00:22:05] Speaker 03:
I thought the notation was pre-trial proceedings?

[00:22:08] Speaker 04:
No, in Al-Mashiri 4, the government's position was that

[00:22:12] Speaker 04:
It will not seek to admit, at any stage of the Military Commission proceedings, statements obtained by torture under Section 948R.

[00:22:22] Speaker 03:
But as to the referral process... I thought there was one where the government said that includes pre-trial proceedings.

[00:22:29] Speaker 04:
Pre-trial proceedings, yes, but not a referral because the referral occurs before a military commission is ever created.

[00:22:38] Speaker 03:
I'm just trying to understand how we know what is pre-trial because the charges and specifications service of charges are under

[00:22:51] Speaker 03:
the pretrial procedure sub-chapter of the statute.

[00:22:56] Speaker 04:
The military judge said that the referral process isn't part of a pretrial military commission proceeding because it occurs before a military commission is even created.

[00:23:06] Speaker 04:
So the purpose of the referral is to determine for the convening authority to determine whether to create a military commission.

[00:23:13] Speaker 04:
Military commissions like courts martial aren't standing courts.

[00:23:17] Speaker 04:
their ad hoc courts, so they don't exist until a convening authority creates one.

[00:23:21] Speaker 03:
I understand, but something can still be... I'm just trying to understand where the government's definition of pretrial comes from, because it doesn't seem to map onto the statute, which, for better or for worse, in 948Q, which is the charges and specifications, that's considered part of the pretrial procedures, even though that's what it causes.

[00:23:42] Speaker 03:
the convening of the commission.

[00:23:44] Speaker 03:
And so I'm just confused about, you know, one can think about, in our system, arrest and detention in the police station as pre-trial, at least if a prosecutor has said, yeah, do that, even if it hasn't yet been referred to the court until they are actually arrested and detained.

[00:24:08] Speaker 03:
And even then, you got, what, 48 hours?

[00:24:12] Speaker 03:
So how does the government session, how do they define pre-trial?

[00:24:17] Speaker 03:
And that's my first question, is pre-trial just starts the second the commission is convened, is that right?

[00:24:26] Speaker 04:
Right, so section 948 R provides that no statement obtained by the use of torture or cruel, inhumane, or degrading treatment

[00:24:34] Speaker 04:
shall be admissible in a military commission.

[00:24:36] Speaker 03:
Well, I understand the statutory.

[00:24:37] Speaker 03:
I'm asking about the government's position, which seemed to me potentially broader, because using something in some pretrial proceedings wouldn't be the same as admitting it in a military commission.

[00:24:49] Speaker 03:
So I'm really asking not about the statute, but about the government's position.

[00:24:53] Speaker 04:
So our position in all necessary for related to any stage of the military commission proceedings and the referral process pretrial proceedings.

[00:25:03] Speaker 04:
Yes, your honor.

[00:25:05] Speaker 04:
And the here, the government and we don't think that this court has to decide whether section 9 48 are applies to that referral process because you can assume without deciding that it does.

[00:25:17] Speaker 04:
And even in that event, petitioner would have this adequate alternative remedy.

[00:25:21] Speaker 04:
And he the military commission has already granted him adequate relief by

[00:25:26] Speaker 04:
After the military commission had been convened, the government provided to the defendant all the materials in the referral binder.

[00:25:34] Speaker 04:
And that's when the defendant reviewed them and objected just to this nine page excerpt, filed a motion to dismiss for defective referral.

[00:25:42] Speaker 04:
And the military judge said, okay, I will look at these materials without the excerpt.

[00:25:47] Speaker 04:
And I've determined that the remaining materials are sufficient to establish probable cause.

[00:25:53] Speaker 04:
brief and at the CMCR, the court relied on this court's decision also in the Coppage case to explain how a similar procedure is used in the grand jury process.

[00:26:03] Speaker 04:
And there the defendant at the district court and on direct appeal from final judgment argued that the court should dismiss the indictment because the grand jury considered

[00:26:15] Speaker 04:
Allegedly perjured testimony and the district court and this court rejected that claim by looking at the other materials that the grand jury considered to decide that those materials were sufficient to support the indictment.

[00:26:28] Speaker 03:
So we think that the government intend to use torture drive evidence in its referrals going forward.

[00:26:34] Speaker 04:
No, your honor, the government does not intend to do so.

[00:26:38] Speaker 02:
Don't we have to decide first whether the exclusion or the use of torture is a structural error?

[00:26:48] Speaker 02:
Because if it isn't, then on appeal, he's already been tried with a structural error, that is,

[00:27:02] Speaker 04:
And we think that on mandamus review, Petitioner hasn't established that it qualifies as a structural error, one, because they don't cite any authority to establish that.

[00:27:12] Speaker 04:
But two, the Supreme Court's precedents really look at whether this is the type of error that can be fixed.

[00:27:18] Speaker 04:
Is it a type of error that's subject to traditional harmless error standards of review?

[00:27:23] Speaker 04:
And we think that it is.

[00:27:24] Speaker 04:
And the military commission demonstrated how is that on direct appeal from final judgment, this court would just simply exclude the excerpt

[00:27:32] Speaker 02:
OK, my question is, don't we have to decide that?

[00:27:35] Speaker 02:
That it is not a structural error.

[00:27:37] Speaker 04:
I think that you could still address that question on direct appeal from final judgment.

[00:27:44] Speaker 04:
And then the petitioner would have a more favorable standard of review, because it wouldn't be under mandamus.

[00:27:50] Speaker 04:
Under mandamus, he must establish a clear and indisputable right, but also that he doesn't have an adequate alternative remedy.

[00:27:56] Speaker 04:
And we think he could still raise the structural error claim on direct appeal from final judgment.

[00:28:02] Speaker 03:
Because every structural error, every structural error argument is not mandamus go pre criminal trial.

[00:28:09] Speaker 03:
Correct.

[00:28:11] Speaker 03:
Mandamus is narrower than structural error.

[00:28:14] Speaker 03:
I'm sorry, Your Honor.

[00:28:14] Speaker 03:
Mandamus review is narrower than structural error.

[00:28:17] Speaker 03:
Yes.

[00:28:21] Speaker 01:
A little bit about the timeliness issue because it was supposed to be filed within 20 days, but we also have some precedent that when you're on mandamus, it's a little more liberals.

[00:28:29] Speaker 01:
I was just curious about why that wasn't challenged.

[00:28:31] Speaker 04:
The timeliness?

[00:28:32] Speaker 04:
Yeah, we understand that they can raise a petition for a writ of mandamus without waiting for a particular time.

[00:28:41] Speaker 01:
Okay.

[00:28:46] Speaker 04:
The government respectfully requests that this court deny the mandamus petition.

[00:28:49] Speaker 04:
Thank you.

[00:28:50] Speaker 02:
Thank you.

[00:28:56] Speaker 00:
I'm going to briefly address a few of things, a couple of things that the government

[00:29:00] Speaker 00:
stated, I was surprised to hear that their answer with regard to their position on referral and saying that it's not the use of torture is not a violation if it occurs at the referral stage.

[00:29:18] Speaker 00:
I think that is what she said.

[00:29:21] Speaker 00:
But I just want to point out that in the CMCR proceeding below, prior to this one,

[00:29:28] Speaker 00:
I'm reading from the CMCR position, which quotes the government brief.

[00:29:34] Speaker 00:
The petitioner and respondent, and this is the quote, are united in recognition that torture of any kind is legally and morally unacceptable and that the judicial system of the United States will not permit the taint of torture in its judicial proceedings.

[00:29:52] Speaker 00:
And what they did not say is, except it's okay for the charges, it's okay for charging.

[00:29:58] Speaker 03:
So again, I question, you know, the government is trying to, okay, I won't, the other thing I wanted to say is- The commission said here, the courts below said is, we're throwing aside that evidence that you identified as torture derived.

[00:30:17] Speaker 03:
We're taking that out, and now we're gonna make our decision.

[00:30:20] Speaker 03:
Yeah, so that's not relying on torture-derived evidence.

[00:30:25] Speaker 03:
That's refusing to rely on torture-derived evidence, which is what you want.

[00:30:28] Speaker 00:
But there's a procedure for military commissions, and the convening authority is the ultimate charging and referral authority.

[00:30:35] Speaker 03:
I understand that, but if the government says, whoops, you're right, we will not

[00:30:43] Speaker 03:
pay attention to that evidence, we are throwing it aside.

[00:30:47] Speaker 03:
You were just charging them with being in favor of relying on this evidence.

[00:30:51] Speaker 03:
I don't think that's what this record shows.

[00:30:56] Speaker 00:
That's what they suggest now.

[00:30:58] Speaker 00:
But they said in the brief, the general statement is a general strong condemnation of the use of torture in any form in any judicial proceeding in the United States.

[00:31:07] Speaker 00:
I mean, it doesn't matter my interpretation of their language.

[00:31:12] Speaker 00:
it's not clear what they really mean and whether they are actually fine.

[00:31:18] Speaker 03:
The United States government represents in this court, they will not use torture drive evidence in convening papers going forward that it will not do so.

[00:31:29] Speaker 00:
Well, the problem with that judge is that there is a ruling by a court of superior jurisdiction over the military commissions that has said

[00:31:40] Speaker 03:
Torture evidence can be... It doesn't matter if the government chooses not to put... It's the government that puts together the charges.

[00:31:48] Speaker 03:
They put together the supporting documents.

[00:31:50] Speaker 03:
The court wasn't saying we will force the government to use torture-derived evidence.

[00:31:54] Speaker 03:
So if the government has said, we're not going to use it, and has said that as a matter of public record in a court of law by an officer of the court, I just don't think it's fair of you to characterize them as saying, oh, they'll be fine, go ahead and do it going forward.

[00:32:09] Speaker 00:
Judge, this is a question of voluntary cessation and it's the government can represent.

[00:32:16] Speaker 03:
No one's arguing mootness here because your client.

[00:32:19] Speaker 03:
Yes, but that's a prospective policy.

[00:32:23] Speaker 00:
Yes, but the argument I think is even though

[00:32:27] Speaker 00:
the CMCR has authorized as a matter of law, the use of torture pretrial, and that is what it holds.

[00:32:35] Speaker 00:
We promise we won't act on that.

[00:32:38] Speaker 00:
So like that.

[00:32:39] Speaker 00:
And so you don't have to worry about it.

[00:32:41] Speaker 03:
We won't use that, is what they said.

[00:32:44] Speaker 00:
We won't use torture.

[00:32:46] Speaker 00:
That's right.

[00:32:46] Speaker 00:
They're promising that.

[00:32:47] Speaker 03:
Torture derived evidence.

[00:32:48] Speaker 00:
Yes.

[00:32:49] Speaker 00:
They're promising not to do that.

[00:32:51] Speaker 00:
I believe that statement is made in good faith.

[00:32:54] Speaker 00:
I also know that

[00:32:57] Speaker 00:
there's going to be an election in November.

[00:33:01] Speaker 00:
And it's unclear whether the personnel at the Department of Justice are going to change.

[00:33:08] Speaker 00:
And there will be outstanding a ruling that torture evidence may be used pre-trial.

[00:33:17] Speaker 00:
I don't think the government can guarantee anything past

[00:33:21] Speaker 00:
the date of the election.

[00:33:22] Speaker 00:
I mean, and I appreciate that they will not try not to use it, but that does not cure the problem.

[00:33:30] Speaker 00:
I mean, the problem is that the CMCR made this ruling against, you know, all of that.

[00:33:36] Speaker 00:
I won't, you know, the arguments against that.

[00:33:38] Speaker 03:
Then you can challenge it on appeal.

[00:33:42] Speaker 03:
That will, that avenue will remain open to you.

[00:33:44] Speaker 00:
That's true.

[00:33:45] Speaker 00:
But in the meantime, these proceedings have been taking multiple years.

[00:33:50] Speaker 00:
And so,

[00:33:51] Speaker 00:
for multiple years, the CMCR opinion is controlling law.

[00:33:56] Speaker 00:
And so it's an unusual case.

[00:34:00] Speaker 00:
And it has an effect far beyond this case.

[00:34:05] Speaker 00:
Yes, we can do a final appeal.

[00:34:07] Speaker 00:
But whenever that happens in the very indeterminate future, prior to that,

[00:34:14] Speaker 00:
the government can use information pretrial if they change their mind and change their good faith commitment not to, which they may do when there's new personnel in the Department of Justice.

[00:34:27] Speaker 00:
I think that's a realistic possibility.

[00:34:32] Speaker 00:
I want to say one thing, one final thing about what I said about final appeal.

[00:34:37] Speaker 00:
I did say

[00:34:39] Speaker 00:
Yes, Mr. Neuermann can appeal after final judgment.

[00:34:44] Speaker 00:
But I didn't mean that that would be effective or that was a meaningful avenue for relief because of all the reasons I discussed previously.

[00:34:53] Speaker 00:
So I don't want to be backed into a position of where I conceded that final appeal is a valid, adequate, alternative

[00:35:05] Speaker 00:
mode of relief.

[00:35:06] Speaker 00:
That is not our position.

[00:35:08] Speaker 00:
It's not what we argued in the brief.

[00:35:10] Speaker 00:
We argued the opposite.

[00:35:11] Speaker 00:
So I just want to be clear on the record that that is our position.

[00:35:16] Speaker 02:
Thank you.