Al-Nashiri III: A No Good, Very Bad Day for U.S. Military Commissions

In a stunning, unanimous, 31-page opinion handed down Tuesday morning, the U.S. Court of Appeals for the D.C. Circuit threw out every single pre-trial order issued over the past three-and-a-half years in the case of Abd Al-Rahim Hussein Muhammed Al-Nashiri, who is being tried by a military commission at Guantánamo for his alleged role in the USS Cole bombing. The Court also threw out every single ruling on appeal of those orders by the U.S. Court of Military Commission Review (CMCR). Every single one.

For those who haven’t been following al-Nashiri’s case, the ruling probably comes as something of a real surprise. But in many ways, today’s decision was merely the inevitable result of years of hubris on the part of the commissions themselves and the government lawyers before them, and the lack of meaningful judicial oversight the commissions have faced to date.

I’ve written before, in lots of detail, about the ethical kerfuffle that had, for a time, ground the pre-trial proceedings in al-Nashiri’s case to a halt (all of which, it should be said, derives at least indirectly from the fact that al-Nashiri was repeatedly tortured while in CIA custody). And although that dispute was lurking in the background of the case the Court of Appeals decided today, the real issue here was the appearance of partiality on the part of the former trial judge, Air Force Colonel Vance Spath, who was presiding over al-Nashiri’s case even as he was applying for—and subsequently negotiating the terms of—a position with the Justice Department as an immigration judge. Writing for himself and Judges Judith Rogers and Thomas Griffith, Judge David Tatel walked in significant and revealing detail through the awkwardness of the overlapping factual timelines—and why it would clearly appear to a reasonable outside observer, when made aware of the facts, that Spath’s impartiality could fairly be questioned.

Folks can—and should—read Judge Tatel’s detailed description and analysis for themselves. To me, his analysis is unanswerable in light of the facts as he recites them. But two additional points ought to be made, one of which Judge Tatel subtly alludes to in his opinion, and the other of which is lurking just beneath the surface.

First, it cannot be overstated the lengths to which Judge Spath, the government, and the Court of Military Commission Review all went to try to prevent today’s decision from ever happening. As Tatel notes, not only did Spath refuse to inform the parties of his employment discussions, but the government itself, in response to a request for discovery from al-Nashiri’s lawyers, refused, “calling the reports ‘unsubstantiated assertions’ and arguing that the ‘[d]efense request offers no basis to believe that the former presiding military judge has applied for a position with the [Justice Department] or even contacted the [Justice Department] regarding employment.’” The government surely knew better, of course; it just tried to prevent al-Nashiri’s lawyers from discovering what it already knew.

And as I’ve explained elsewhere, the real break came from a FOIA request filed by Carol Rosenberg, which turned up the very documents pertaining to Spath’s candidacy for a position as an immigration judge that the government had refused to disclose (to a capital defendant in a criminal case) in response to “unsubstantiated assertions.” And the CMCR, which exists solely for the purpose of supposedly providing independent appellate oversight of the military commission trial courts, effectively kowtowed to the government—concluding that al-Nashiri should first have to perfect his disqualification claim before the (I’m not kidding) trial court. By then, Spath had been replaced by Colonel Shelley Schools—except that Schools, too, was in the process of successfully applying for a position as an immigration judge.

To his credit, Judge Tatel calls out all of these actors. As he notes on page 28,

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

This is a stunning rebuke from a unanimous panel of three Article III judges. And it’s long overdue. There are any number of other contexts in which government lawyers, trial judges, and the CMCR in the military commissions have bent over backwards to give short shrift to arguments by military commission defendants that were ultimately vindicated on appeal. But today’s opinion is the first time the D.C. Circuit has expressly called out these actors for their hubris.

Second, it is also worth taking a moment to reflect on the implications of today’s ruling. Assuming the Solicitor General does not pursue rehearing en banc or certiorari (a real long shot, in my view, given that Judge Griffith was on today’s panel, and that his vote would surely be necessary to convince the full court to rehear the matter), the effect of this decision is to wipe out all of Judge Spath’s orders dating back to November 2015, and all of the CMCR’s rulings relating to those orders. In essence, today’s decision sets al-Nashiri’s case back at least three and a half years—and possibly more, since some of the interlocutory appeals may also have to be re-pursued. The net result is that it now will be even longer before al-Nashiri’s case ever goes to trial—and before, assuming he is convicted, he would be able to bring a post-conviction appeal to the D.C. Circuit.

I say all of this because two of the three judges on today’s panel were also on the panel the last time al-Nashiri sought relief in the D.C. Circuit—in 2016, when al-Nashiri was seeking to have the federal courts decide whether the military commission even has jurisdiction to try him in the first place. Al-Nashiri’s jurisdictional objection is a serious one: The Military Commissions Act itself (and, arguably, the Constitution) limits the jurisdiction of the Guantánamo commissions to offenses committed during an armed conflict, and the charges against al-Nashiri stem from the October 2000 bombing of the USS Cole—an event that took place eleven months before the September 11 attacks. If al-Nashiri’s jurisdictional objection is sustained, then all of this is for naught — the government may then have the authority to detain him as an enemy combatant, but it could not try him in a military commission.

Rather than resolve al-Nashiri’s jurisdictional objection, the D.C. Circuit in August 2016, in an opinion by Judge Griffith, held that it should abstain, relying on an application of the “Councilman abstention” doctrine that I have heavily criticized elsewhere—and that provoked an unusually angry dissent from Judge Tatel. One of the arguments that Judge Griffith rejected in holding that the civilian courts should wait for the military commission process to run its course was that those proceedings might take years—and that it might be 2024 before a post-conviction appeal from al-Nashiri returned to the D.C. Circuit. To Griffith (back then, anyway), such a concern was entirely speculative, with no real explanation for how the trial and post-conviction appeal could possibly take so long given the state of play at that time.

Today, in contrast, Griffith joined, without comment, an opinion that all-but guarantees that al-Nashiri’s lawyers’ timetable will be proven correct—if not wildly optimistic. And he did so in a case that underscores some of the many reasons why we might all be better off, the commissions included, if the civilian courts resolved more of these questions before everyone goes through the time and expense of a trial. After all, if the deference to the military that Councilman contemplates is predicated on a view that the military court will fairly and expeditiously resolve the matters before it, today’s ruling is yet another powerful reminder of why the Guantánamo commissions may be wholly undeserving of it. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).