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For more than a decade, this column has been a vehicle to periodically shine a light on the military commission proceedings at Guantanamo that continuously embarrass this nation. As early as 2008, in recounting the litany of travesties that had occurred, I characterized the process as a farce.{1} 1 Norman L. Reimer, Guantanamo: Peering Through the Keyhole at America’s Soul, The Champion, July 2008, at 7. Eight years later, Brigadier General John G. Baker, chief defense counsel for the Military Commission Defense Organization, in remarks published in this magazine, catalogued abuses that included pervasive government misconduct, denigration of the defense function, and a futile obsession with trying to suppress the details of a government orchestrated torture program that has drawn worldwide condemnation.{2} 2 John G. Baker, Defending the Rule of Law: The Military Commission Defense Organization, The Champion, July 2016, at 18. General Baker also called the proceedings “a legal farce.”{3} 3 Id.
Less than a year later, General Baker became personally embroiled in this farce when he was held in contempt for granting the application of three attorneys for Abd Al Rahim Al-Nashiri{4} 4 Mr. Al-Nashiri is accused of orchestrating al Qaeda’s “boats operations” in the Gulf of Aden, a series of plots to bomb ships that culminated in the failed attempt to bomb the U.S.S. The Sullivans and completed bombings of the U.S.S. Cole in 2000 and the M/V Limburg in 2002. Mr. Al-Nashiri, who was captured in 2002, spent several years at various CIA “black sites” before his eventual transfer to the U.S. Naval Base at Guantanamo Bay in 2006. The government is seeking the death penalty in the military commission proceeding against Mr. Al-Nashiri. to be relieved from representing their client for ethical reasons following various disclosures that called into question whether the government was monitoring the attorney-client communications between Mr. Al-Nashiri and his lawyers. These events, including NACDL’s Strike Force representation of General Baker and the eventual reversal of the contempt finding, have been regularly recounted in the pages of this magazine.{5} 5 Norman L. Reimer, A ‘Laughingstock Justice System’ That Is No Joke, The Champion, November 2017, at 9. Ivan J. Dominguez & Ian Nawalinski, Court Vacates Contempt Conviction Against Gen. John Baker, The Champion, June 2018, at 14.
Periodically, as the outrage at Guantanamo continues, garnering little public attention but every day deepening and darkening the stain on American values, there are fleeting moments when the extent of the travesty is illuminated for all to see. One of those moments occurred on April 16, 2019. In a unanimous opinion by a panel of the U.S. Court of Appeals for the District of Columbia Circuit, the court took the extraordinary step of granting a writ of mandamus sought by Mr. Al-Nashiri vacating every single order issued on or after November 19, 2015, by Air Force Colonel Vance Spath, the judge presiding over his commission, as well as every decision issued by the Court of Military Commission Review (CMCR) reviewing those orders.{6} 6 In re Abd Al-Rahim Muhammed Al-Nashiri, 18-1279, slip op. (D.C. Cir. April 16, 2019).
The petition for a writ of mandamus was predicated upon the sordid facts that while presiding over the Al-Nashiri case, Judge Spath secretly negotiated for a job as an immigration judge in the U.S. Department of Justice, Executive Office for Immigration Review. This is a direct appointment by the attorney general to a position that is subject to supervision by the attorney general. Further, the court concluded that “the average, informed observer would consider Spath to have presided over a case in which his potential employer appeared.”{7} 7 Id. at 21. The Department of Justice is intimately involved in the conduct of the military commission proceedings both institutionally, under the terms of the Military Commission Act, and specifically in the Al-Nashiri case because it was the Department of Justice that detailed one of its lawyers to prosecute Mr. Al-Nashiri. Thus, the court found that “[i]n sum, the attorney general was a participant in Al-Nashiri’s case from start to finish: he has consulted on commission trial procedures, he has loaned out one of his lawyers, and he will play a role in defending any conviction on appeal.”
So, in part the court concluded that the fact of Spath’s employment application, which clearly creates a challenge to treat the prospective employer with neutral disinterest, violated precedent that counsels a judge to avoid seeking employment with a party appearing before him. That alone, the court stated, would be sufficient grounds to require disqualification. But there was more.
Judge Spath further undermined his neutrality by citing his selection to preside over the military commission proceeding against Al-Nashiri in his application as evidence of his qualification for the job and by submitting an order from the case as his writing sample. Additionally, even while boasting to the Department of Justice about his role in Al-Nashiri’s case, he blatantly failed to disclose his application and appointment to the position to the defense. In fact, a day after receiving his start date in the new position, “Spath indefinitely abated commission proceedings, musing on the record that ‘over the next week or two’ he would decide whether ‘it might be time … to retire.’”{8} 8 Id. at 23.
All readers, but especially defense lawyers, will appreciate the analysis that led the D.C. Circuit Court of Appeals to invoke the “drastic” remedy of mandamus. After all, the general route for correcting error is through the appellate review process. It is a high standard that essentially requires a finding that irreparable harm will result if the court does not intervene. But on these shameful facts, the court had no trouble granting the relief and striking all the orders issued while Spath presided:
Strict as it is, that standard is easily satisfied here. While “[t]he ordinary route to relief … is to appeal from [a] final judgement,“[w]hen the relief sought is recusal of a disqualified judicial officer, … the injury suffered by a party required to complete judicial proceedings overseen by that officer is by its nature irreparable.” [citations omitted] After conviction, no amount of appellate review can remove completely the stain of judicial bias. …
***
Requiring Al-Nashiri to proceed under the long shadow of all those orders, even if enforced by a new, impartial military judge, would inflict an irreparable injury unfixable on direct review. Al-Nashiri thus has no adequate remedy for Spath’s conduct other than to scrub Spath’s orders from the case at the earliest opportunity.{9} 9 Id. at 24-25.
Finally, for the purpose of this summary of the court’s decision, which truly deserves to be read in his entirety, it is noteworthy that in addressing the requisite question of whether mandamus is appropriate under the circumstances, the court must assess the risk of injustice to the parties, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process. For any accused person, especially one facing execution, the first of these considerations must always be paramount. But it is the other two factors that constitute the dark shadow that looms over the military commissions.
In resolving these questions in favor of granting relief, the court was very much concerned about preventing injustice in future cases. To that point, the court excoriated the Department for its “lack of diligence.” It noted that the Department of Justice knew that Spath had applied for the immigration judge job and continued to preside over the Al-Nashiri case. Even more damning, even after receiving the defense request for discovery into Spath’s employment negotiations, the prosecution refused to investigate the matter and accused the defense team of peddling “unsubstantiated assertions.”{10} 10 Id. at 27. And, to put some icing on the cake, it also turns out that the military judge who replaced Spath, the same judge whom the government and the CMCR urged should initially hear Al-Nashiri’s motion to disqualify Spath, “was herself engaged in apparently undisclosed employment negotiations with the Justice Department during the pendency of this very case.”{11} 11 Id. at 28.
It is this compendium of continual rank disregard for the most basic principles of justice, fairness, and propriety that led the court to restate a fundamental truth of the criminal justice system. This principle not only applies to the Al-Nashiri case, but also very likely will be the epitaph on the entire Guantanamo fiasco when history’s verdict is rendered on this sad chapter in American history:
Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system — from the prosecution team to the Justice Department to the CMCR to the judge himself — failed to live up to that responsibility.{12} 12 Id. at 28.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Norman L. Reimer
NACDL
Washington, DC
202-465-7623
nreimer@nacdl.org
www.nacdl.org
@NACDLExecDir
