IN RE: Abd Al-Rahim Hussayn Muhammad AL-NASHIRI Also Known As Abd Al-Rahim Hussein Muhammed Al-Nashiri and Abd Al-Rahim Hussein Al-Nashiri (2023)

PUBLISHED OPINION OF THE COURT

Petitioner Abd Al-Rahim Hussayn Muhammad Al-Nashiri (Al-Nashiri), also known as Abd Al-Rahim Hussein Muhammed Al-Nashiri and Abd Al-Rahim Hussein Al-Nashiri, is charged with multiple offenses relating to the attempted bombing of the USS THE SULLIVANS on January 3, 2000, and the bombings of the USS COLE on October 12, 2000, and the French supertanker MV Limburg on October 6, 2002. Resp't's App. in Support of Opp. to Stay 132–43 (Feb. 14, 2023) (Resp't's App.) (referred charge sheet). Petitioner is facing the death penalty. Id. at 133. The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has “recount[ed] the details of Al-Nashiri's alleged offenses” and the procedural posture of the case in In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110, 113–17 (D.C. Cir. 2016). Seventeen United States servicemembers and one Bulgarian civilian crewmember were killed. Id. at 114; Resp't's App. 134–36, 671.

We recently provided the writ history of this case in In re Al-Nashiri, 577 F. Supp. 3d 1285, 1289 (CMCR 2021) (listing seven D.C. Circuit petitions and two CMCR petitions). We denied the writ petition in that case, which sought dismissal of all charges based on allegations that the process for judicial review of classified information was unlawful. 577 F. Supp. 3d at 1288–89. Since then, the D.C. Circuit has decided In re Al-Nashiri (Al-Nashiri IV), 47 F.4th 820, 822–24 (D.C. Cir. 2022) (dismissing for lack of jurisdiction a petition regarding the offer and judicial consideration of evidence obtained by torture). Petitioner has also filed three new writ petitions in this court: (i) the case at bar; (ii) Case No. 23-001, at *1 (CMCR filed Feb. 6, 2023) (seeking vacatur of three orders “insofar as they hold that 10 U.S.C. § 948r does not bar the admission or use of evidence derived from the torture of third parties under the ‘fruit of the poisonous tree’ doctrine”); and (iii) Case No. 23-003 (CMCR filed June 5, 2023) (seeking judicial disqualification and vacatur of certain orders due to a post-retirement Department of Defense job application).

In the instant petition, petitioner's defense counsel moved in Appellate Exhibit (AE) 531 to disqualify the presiding military judge, alleging that he was personally biased against the defense and had created an appearance of bias. Pet'r's App. in Support of Pet. for Writ of Mandamus 590 (Feb. 20, 2023) (Pet'r's App.).¹ The military judge denied the motion. Id. at 710.

Petitioner now asks this court to disqualify the military judge effective May 3, 2023, and vacate his rulings issued on or after that same date. Pet'r's Br. 1–2 (Feb. 8, 2023). Petitioner's writ petition focuses upon comments the military judge made in his written ruling on AE 335. In that ruling, the military judge said defense counsel had inaccurately summarized his AE 335N ruling, mischaracterized a portion of the prosecution's argument, and made an “entirely misleading” statement to the D.C. Circuit. Pet'r's App. 338 (AE 335R).

Another panel of this court originally considered the petition and voted to issue an opinion deciding the issues that were presented. However, two judges left the court before the opinion was issued. Subsequently, the current panel of judges was assigned to consider the petition. Order (CMCR Apr. 18, 2023).

We have carefully considered de novo the pleadings filed by the parties. We hold petitioner has not demonstrated that his right to relief is clear and indisputable for reasons detailed below. We deny the petition.

I. Factual background

The military judge's comments in question related to extensive litigation over whether the prosecution could use evidence derived from statements obtained by the use of torture against a third party.² Understanding the nature of the military judge's comments to defense counsel requires a discussion of that issue.

Pursuant to 10 U.S.C. § 948r(a), “[n]o statement obtained by the use of torture or by cruel, inhuman, or degrading treatment ․ shall be admissible in a military commission.” (Emphasis added.) Military Commission Rule of Evidence 304 similarly bars admission of such statements “in a trial by military commission.” Mil. Comm. R. Evid. 304(a)(1), Manual for Military Commissions, United States (MMC) (2019 ed.). The exception to this rule permits the admission of torture-obtained statements as evidence “against a person accused of torture or ․ as evidence that the statement was made.” Id. Section (a)(5) of Rule 304 is titled “Derivative Evidence” and explains that “[e]vidence derived from” statements obtained by torture under subparagraph (a)(1) “may not be received in evidence against an accused who made the statement” absent limited exceptions.³ (Second emphasis added.)

The D.C. Circuit and our court have addressed the use of torture-obtained information during pretrial proceedings, see, e.g., Al-Nashiri IV, 47 F.4th at 823, and during the process of seeking referral of a case to a military commission, In re Nurjaman, No. 22-001, 2023 U.S. CMCR LEXIS 2 (June 23, 2023). However, we have not addressed evidence derived from statements that were obtained by using torture (derivative evidence). Use of derivative evidence is central to petitioner's bias claims against the military judge.

A. Al-Darbi's statements

Ahmed Mohammed Al-Darbi (Al-Darbi) was captured in June 2002 and subjected to harsh treatment at the hands of a military counterintelligence agent for approximately six weeks until sometime in August 2002. Pet'r's App. 286–90, 296–97. Beginning on August 24, Federal Bureau of Investigation (FBI) agents interviewed Al-Darbi “almost daily” for about ten days, and he made statements to the FBI agents incriminating Petitioner Al-Nashiri. Id. at 290. The military judge found that “the evidence suggests that while Al Darbi was being interviewed by the FBI, he was also still being subjected to interrogations at night by military interrogators.” Id. at 298; see id. at 290. The commission further found, “While the FBI agents may not have directly engaged in any mistreatment of Al Darbi or may not have known the extent of [his] mistreatment [at the hands of the military counterintelligence agent], their interviews undoubtedly immeasurably benefitted from it․ [Therefore,] Al Darbi's August to September 2002 statements to the FBI ․ were directly obtained through the use of torture or by cruel, inhuman, or degrading treatment.” Id. at 299. Petitioner Al-Nashiri has asserted that these FBI statements led to his capture and the seizure of a notebook that was allegedly in his possession.⁴ Id. at 578. Al-Darbi subsequently made other statements, including during a 2017 deposition. Id. at 284–85.

Before the military commission, Al-Nashiri urged application of 10 U.S.C. § 948r and Military Commission Rule of Evidence 304 to suppress Al-Darbi's 2002 statements to the FBI and Al-Darbi's 2017 deposition testimony. Id. at 84–85, 88–90, 284 n.1. Al-Nashiri also asked for suppression of the notebook and “ ‘accompanying statements’ ” relating to the notebook's contents, id. at 580, including statements made by Al-Nashiri in 2007 to investigators at Guantanamo Bay, Cuba, id. at 86, 90–91, 299 & n.17.

In early 2021, the parties litigated in AE 353 the use of statements allegedly obtained by torture of the accused to decide interlocutory matters during pretrial motion practice. Id. at 542–43. The military judge ruled that the commission could consider the two statements at issue in AE 353V for the limited purpose of resolving the discovery matter. Id. at 547 (AE 353AA). The prosecution then requested the military judge reconsider and rule on a modified government submission—one which omitted the two controversial statements (Bates Nos. 10015-00076554-58 and 10015-00076836-37). Id. at 548, 550. The military judge agreed and issued a new ruling. Id. at 570–74 (AE 353II). The military judge said that the two controversial statements “did not form the basis for any ruling or order by the Commission.” Id. at 573. On September 20, 2021, this court denied a petition for a writ of mandamus and prohibition on the same matter as moot but vacated the commission's original ruling at AE 353AA “to clarify the evidence being considered at petitioner's military commission.” Ord. Dismissing Pet. 5, No. 21-001 (CMCR Sept. 20, 2021).

On March 1, 2022, defense counsel moved in AE 471 to suppress the notebook seized from Al-Nashiri when he was captured. Pet'r's App. 577–78. Defense counsel argued the notebook was “physical evidence derived from the torture of Al Darbi,” citing 10 U.S.C. § 948r. Id. at 578. Trial counsel—the attorney who represents the government before military commissions and serves as prosecutor—argued other information likely led to the notebook's recovery. Id. at 578–79.

In the April 29, 2022, military commission hearing, trial counsel asserted both 10 U.S.C. § 948r and Military Commission Rule of Evidence 304(a)(1) prohibit admission of statements “obtained by the use of torture or cruel, inhuman, or degrading treatment,” regardless of whether the person subject to the treatment is an accused or someone else. Id. at 33. Trial counsel further argued that Al-Darbi's treatment did not actually amount to torture. Id. at 25–33. In the alternative, he contended that even if Al-Darbi's treatment met the threshold to be torture, 10 U.S.C. § 948r and Military Commission Rule of Evidence 304 do not bar derivative evidence when someone other than the accused is the one who was tortured (third-party derivative evidence). See id. at 33–36.

Trial counsel continued, explaining that evidence obtained by torture (Al-Darbi's 2002 FBI statements) was not suppressible—and thus would be admissible; moments later, however, he said statements obtained by torture of a third party are inadmissible. He said:

Even if the commission assumes the facts as argued by the defense demonstrate that the military intelligence file was the result of torture, cruel, inhuman or degrading treatment, the accused lacks standing to challenge the admissibility of evidence derived from statements of a third party. And thus, the statements of the FBI in 2002 are not suppressible.

Both 948r of the MCA [Military Commissions Act] and M.C.R.E. [Military Commission Rule of Evidence] 304(a)(1) prohibit statements obtained by the use of torture or cruel, inhuman, or degrading treatment. Clearly [these references] appl[y] to third parties as well as individuals, accused, [and] defendants.

Id. at 33 (Tr. 16367).

B. Letters to the D.C. Circuit

On May 3, 2022, Al-Nashiri's counsel made a letter filing under Federal Rule of Appellate Procedure 28(j) in D.C. case No. 21-1208. Resp't's App. 616. Defense counsel's letter informed the D.C. Circuit that during the April 29, 2022, hearing, the prosecution had stated:

Even if the judge were to decide that Mr. Darbi was tortured, [the prosecutor] said, the law governing military commissions prohibits only the use of evidence that was obtained using torture or cruel, inhuman or degrading treatment of a defendant, in this case Mr. Nashiri. Testimony about what a witness said under those circumstances can be admissible at a trial, he said.

Id. (alteration in original; emphasis added) (quoting New York Times article). The May 3 letter said this news quotation accurately represented defense counsel's recollection of and notes on the April hearing. Id.; see id. at 617–20 (attaching Times article). A transcript of the hearing was not yet available. Id. at 615. The New York Times article did not mention that segment of the April hearing in which the prosecutor explained the basis for admissibility as being Al-Nashiri's lack of standing to object to Al-Darbi's torture. See Pet'r's App. 33–36 (transcript discussing lack of standing).

On May 5, 2022, defense counsel submitted a second 28(j) letter to the D.C. Circuit. Resp't's App. 621–23. Counsel explained that they had reviewed the April hearing transcript, which was still undergoing a classification review and therefore could not be submitted to the D.C. Circuit. Id. at 621–22. Defense counsel confirmed the correctness of the Times article and clarified events at the hearing by acknowledging the prosecution had argued in April that Al-Nashiri lacked standing to object to Al-Darbi's statement. Counsel said:

Upon a review of the Top Secret transcript, Petitioner can confirm that description of events contained in the New York Times article that was attached to the 28(j) letter submitted on May 3, 2022, was correct. The issue before the commission on April 29, 2022, was the admissibility of statements made by another detainee to interrogators in 2002. During the hearing, the lead prosecutor stated that 10 U.S.C. § 948r(a) conferred a personal right on the accused and that Petitioner lacked standing to object to the admissibility of statements obtained from third-parties, even if those statements were derived from the uncontested use of torture against that third-party.

Id. at 622. Defense counsel added that the prosecution, an assistant trial counsel, had read a statement into the record during a hearing on the afternoon of May 4, 2022. Id. According to the defense, the prosecution's statement

sought to retract the [lead] prosecut[or]’s arguments during the April 29 hearing, “that suggested that 948r(a) only barred from admission in a military commission a statement obtained from the torture, cruel, inhuman or degrading treatment of the accused in a military commission.” This statement, in turn, prompted the military commission judge to express confusion respecting the prosecution's position on what evidence § 948r(a) excluded.

Id. (citation omitted).

The record transcript shows the prosecution said evidence obtained by torture is inadmissible at “all stages of a military commission case.” Id. at 628. Trial counsel, however, did not take a position on the admissibility of evidence derived from torture under § 948r. Id. at 628–29. Elucidation of the government position was left for another day. See id. at 630. The military judge expressed some frustration with the prosecution's reluctance to clarify its position on third-party derivative evidence. See id. at 629–30.

Later, on May 20, 2022, the government submitted a 28(j) letter to the D.C. Circuit informing that Court of its disagreement with defense counsel's characterization of the government position on the admission of evidence obtained by torture. The government position was stated as follows:

Under Section 948r(a), statements obtained by the use of torture, or by cruel, inhuman, or degrading treatment, are inadmissible regardless of whether the defendant or another person made the statement. That is the position of the United States, and we have recently made clear that this bar applies at any stage of the proceedings, not just at trial. Nothing in the transcripts petitioner submitted conflicts with that position. Indeed, the prosecution expressly acknowledged that, as to any statements obtained by torture, Section 948r(a)’s exclusionary rule “[c]learly applies to third parties.” Tr. 16367.

A separate issue is whether statements or other evidence not obtained by torture, but potentially derived from statements that were obtained by torture of a third party, are also inadmissible against the defendant. The prosecution sought admission of statements made by a detainee to the FBI that petitioner alleged were the fruit of earlier mistreatment of the detainee by military personnel. Id. (distinguishing the “military intelligence file” from “statements [to] the FBI”). The prosecution's argument that petitioner lacked standing to challenge evidence allegedly derived from these third-party statements was limited to this “derivative use” context. Id. at 16368-69. Even as to this context, the prosecution has since clarified that, “[t]o the extent [the prosecution's argument] could be interpreted to support an interpretation that derivative evidence is categorically not subject to [Section] 948r, those statements are not reflective of the government's view,” which would be articulated in a future filing. Id. at 17049-50.

Id. at 633 (alterations in original).⁵

On June 3, 2022, Al-Nashiri's counsel submitted a third 28(j) letter to the D.C. Circuit that took issue with the government's position in its May 20 letter.⁶ Id. at 635–36. Defense counsel disagreed that the prosecutor had argued § 948r(a) clearly applied to third parties, explaining that position was based on an isolated sentence fragment taken out of context. Id. at 635. The defense also argued that the prosecution's use of the phrase “derivative evidence” was misleading as the issue before the commission was custodial statements made under extreme abuse. Id.

C. Military judge's ruling on Al-Darbi's statements (AE 335N)

On June 30, 2022, the military judge concluded that Al-Darbi had been subjected to “either torture or cruel, inhuman, or degrading treatment” in 2002. Pet'r's App. 296–297 (AE 335N). He suppressed Al-Darbi's statements to the FBI because they “were directly obtained through the [military counterintelligence agent's and military interrogators’] use of torture or by cruel, inhuman, or degrading treatment.” Id. at 299. The military judge did not, however, suppress Al-Darbi's 2017 deposition or Al-Nashiri's 2007 statement. Id. at 309–10. The military judge reasoned that Military Commission Rule of Evidence 304(a)(5)(A) “applies, by its own clear and unambiguous terms, to evidence derived from statements made by the Accused, not to evidence derived from statements made by a third party such as Al Darbi,” id. at 300, and “a criminal defendant typically does not have standing to assert the constitutional rights of third parties,” id. at 302. See id. at 310. He noted that 10 U.S.C. § 948r does not address derivative evidence, id. at 304, and that § 948r and Military Commission Rule of Evidence 304(a)(5) do not “bar the admissibility of evidence derived from the coerced statements of third parties,” id. at 309.

The military judge's ruling on admissibility was not final. He said that such evidence may not be admissible if it “lacks reliability, deprives the Accused of a fair trial, results in unfair prejudice that outweighs any probative value, or where the deterrence value of excluding such tainted evidence would substantially outweigh the costs to society of excluding the evidence.” Id. at 309. His decision declining suppression of Al-Darbi's 2017 deposition and Al-Nashiri's 2007 statement was limited to “the grounds asserted here by the Defense,” and admissibility of those statements would be evaluated if they were offered as evidence.⁷ Id. at 310–11.

During a hearing on August 12, 2022, trial counsel described the military judge's AE 335N ruling as “clear,” noting it provided that neither 10 U.S.C. § 948r nor Military Commission Rule of Evidence 304 “prohibit the introduction of evidence derived from a third party's statement.” Id. at 328–29 (quoting Tr. 19399). Yet, in that same hearing, the government declined to take a position on whether evidence derived from torture was admissible. Id. at 54–55 (Tr. 19411). The military judge's ruling on the admissibility of third-party evidence is the subject of a separate petition for a writ of mandamus and prohibition that Al-Nashiri's counsel filed with this court on February 6, 2023, as Case No. 23-001.

On September 2, 2022, the D.C. Circuit issued its opinion denying petitioner's mandamus request on the discovery matter presented in AE 353V as moot. Al-Nashiri IV, 47 F.4th at 823–25. Concerns about the future use of evidence obtained by torture were not ripe. Id. at 825–27. Petitioner's claims also did not rise to a level warranting mandamus relief given the availability of a direct appeal. Id. at 827–28. Additionally, the Court noted, “[T]he Government has assured this Court in briefing, oral argument, and in subsequent letters submitted to us ․ that it will not seek to introduce any evidence obtained by the torture of Al-Nashiri or any third party in any stage of the proceedings.” Id. at 825.

D. Military judge's denial of defense motion to reconsider AE 335N

On September 8, 2022, defense counsel asked the military judge to partially reconsider his AE 335N ruling, which the defense characterized as “holding that evidence obtained by the torture of third parties is admissible under 10 U.S.C. § 948r and the Manual for Military Commissions.” Pet'r's App. 312. The defense referenced in their motion the government's position before the D.C. Circuit and claimed that “neither party believes the Commission's ruling in AE 335N accurately states the law.” Id. at 313. Defense counsel pointed to language used in Al-Nashiri IV regarding the government's change in positions, stating the current government position was that evidence obtained by the torture of an accused or third party was inadmissible “in any stage of the proceedings.” Id. (citation omitted).

On November 14, 2022, the military judge denied the defense motion to reconsider his AE 335N ruling. Id. at 345 (AE 335R). Citing to AE 335N, he stated that Military Commission Rule of Evidence 304(a)(5)(A) “bars the admissibility of evidence derived from statements made by the Accused ․ [and that] the rule does not apply to evidence derived from third party statements.” Id. at 335; see id. at 300, 309. The military judge added:

g. ․ [T]he Commission finds it appropriate to address mischaracterizations of both this Commission's ruling and the positions taken by the United States related to the issues in AE 335. In the practice of law, precision in language is critical. Counsel are responsible for analyzing and litigating questions of law involving complex statutes, rules of evidence, and case law, the correct interpretation of which may hinge on the meaning of a single word or the placement of a simple comma. While attorneys may argue good faith alternative interpretations of statutes, rules, and facts, counsel may not mischaracterize rulings or the positions of opposing parties, whether at the trial or the appellate level.

h. In addition to inaccurately summarizing the ruling of the Commission in AE 335N and purporting to speak for the Government with respect to the legal validity of that ruling, the Defense has mischaracterized the argument of Trial Counsel on AE 335 in documents submitted to the Court of Appeals for the District of Columbia Circuit. Specifically, on 3 May 2022 the Accused's trial and appellate Defense Counsel submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j) (hereinafter, “28(j) letter”) to the Court of Appeals. In the letter, the Defense asserted that, “the prosecution indicated that it was the position of the United States that 10 U.S.C. § 948r(a) only prohibited the use of evidence obtained by torture against the accused, not third parties.”

i. This assertion reflects an inaccurate representation of Trial Counsel's argument. During argument on AE 335 on 29 April 2022, Trial Counsel actually stated, “[b]oth 948r of the MCA and M.C.R.E. 304(a)(1) prohibit statements obtained by the use of torture or cruel, inhuman, or degrading treatment. Clearly [this] applies to third parties as well as individuals, accused, defendants.” Trial Counsel explicitly acknowledged that the M.C.A. bars the admission of statements obtained by torture or cruel, inhuman, or degrading treatment, whether the statements were made by an accused or by a third party.

j. On 5 May 2022, in another 28(j) letter submitted to the Court of Appeals, Defense Counsel reiterated their previous claim regarding the content of Trial Counsel's argument, despite at that time having access to the unofficial transcript of the 29 April 2022 hearing. In that letter the Defense stated, “[d]uring the hearing, the lead prosecutor stated that 10 U.S.C. § 948r(a) conferred a personal right on the accused and that Petitioner lacked standing to object to the admissibility of statements obtained from third parties, even if those statements were derived from the uncontested use of torture against that third party.” This statement is entirely misleading. In this statement, the Defense fails to make clear the distinction drawn by Trial Counsel between 1) statements directly obtained by torture and 2) evidence derived from statements obtained by torture. There is an important difference between the two as reflected in this Commission's ruling in AE 335N. The Defense appears to mix the two concepts in a manner to confuse the issues and to mischaracterize the actual position taken by Trial Counsel. In response, the Government submitted a 28(j) letter on 20 May 2022 pointing out the Defense's mischaracterization of Trial Counsel's argument, quoting directly from the transcript of the 29 April 2022 hearing. Thereafter, the Defense submitted yet another 28(j) letter to the Court of Appeals on 3 June 2022 persisting in the mischaracterization of Trial Counsel's argument.

k. While the Defense directed their mischaracterizations of the Government's position to the Circuit Court of Appeals, not directly to this Commission, it is important to note that when counsel attach their names to pleadings or other submissions to a court they are responsible for the content and accuracy of such pleadings or submissions. While the Commission does not allege or assume that the Defense intended to mislead any court, such use of imprecise and inaccurate language may give such an impression. It is therefore worth noting that the quality of advocacy in this case will improve immeasurably with a renewed focus on the use of precise language both in pleadings and in argument before the Commission.

Id. at 337–39 (second and fourth brackets in original; footnotes and citations omitted).

Also on November 14, 2022, the military judge ruled on AE 471, deciding there was no basis under 10 U.S.C. § 948r or Military Commission Rule of Evidence 304(a)(5) for suppression of Al-Nashiri's notebook. Id. at 580. Those provisions, he stated, did “not bar the admissibility of evidence derived from the coerced statements of third parties such as Al Darbi.” Id. (citing AE 335N). Consequently, the military judge declined to address whether other information led to seizure of the notebook.⁸ Id.

E. Military judge's denial of defense motion to disqualify (AE 531D)

On November 21, 2022, the defense moved to disqualify the military judge from Al-Nashiri's commission “for actual bias and the appearance of bias.” Id. at 590 (AE 531). The defense further alleged that the military judge, in his ruling on AE 471 concerning the notebook, had “decreed that neither 10 U.S.C. § 948r, nor M.C.R.E. 304(a)(5) bar the admissibility of evidence derived from coerced statements of third parties.” Id. at 612. According to the defense, the military judge had thereby

ruled that evidence derived from third parties subjected to torture or cruel, inhuman, or degrading treatment could be admitted before the military commission. In doing so, [the military judge] took up the mantle of the position that he believed to be consistent with the then-Lead Prosecutor's argument on 29 April 2022 regarding AE 335, a position by Assistant Trial Counsel and disavowed by Appellate Government Counsel before the D.C. Circuit.[9]

Id. From there, the defense asserted that the military judge had made his comments in his AE 335R ruling

as a desperate attempt to discredit Mr. Al-Nashiri's defense team to prevent his team from seeking relief [from the ruling at] AE 471P before superior courts or, in the event of a petition – on a matter related to the introduction of evidence obtained from torture, which the government has said before the D.C. Circuit it categorically will not defend use of any evidence derived from torture – to call into question the credibility of the defense attorneys representing Mr. Al-Nashiri before those same appellate courts.

Id. at 613. The prosecution opposed the motion to disqualify. See id. at 663–89.

The military judge denied Al-Nashiri's disqualification motion after briefing and a hearing on December 5, 2022, in which both parties declined the opportunity to question him or present additional evidence. Id. at 696–98, 710 (AE 531D). The military judge said the defense had raised the “issue of mischaracterization” in their motion to reconsider the AE 335 ruling by suggesting he had ruled that “evidence obtained by the torture of third parties is admissible under 10 U.S.C. § 948r and the Manual for Military Commissions.” Id. at 702 (quoting AE 335O, at 1). He denied having issued “such a broad ruling,” stating he “[i]n fact ․ ruled, consistent with 10 U.S.C. § 948r, that statements obtained by torture are not admissible in a military commission.” Id. (citing AE 335N).

The military judge added that it was the defense's reconsideration motion that had directed his attention to government statements before the D.C. Circuit, as well as the letters submitted to that Court. Id. He “simply pointed out that the Defense's imprecise language both before this Commission and before the Court of Appeals had the effect of mischaracterizing this Commission's ruling in AE 335N and the Government's legal position related to the issues in AE 335, for which the Defense requested reconsideration.” Id. at 703.

F. This petition

Before us, petitioner seeks the disqualification and removal of the military judge along with the vacation of all his rulings issued on or after May 3, 2022—the day his defense counsel submitted their first 28(j) letter to the D.C. Circuit. Pet'r's Br. 1–2, 5. Petitioner focuses almost exclusively on the military judge's comments in his AE 335R ruling on the defense's motion to reconsider AE 335N. Petitioner variously describes the reconsideration ruling as a “tirade,” a “lengthy indictment,” a “campaign against Mr. Al-Nashiri's counsel,” and “ad hominem attacks against Mr. Al-Nashiri's defense attorneys.” Id. at 6–7, 13.

Petitioner also states in his petition that the military judge has demonstrated “deep-seated antagonism against the defense,” “gratuitously include[d] serious ethical allegations against Mr. Al-Nashiri's counsel,” made “explicit and superfluous attacks ․ on the professionalism and integrity of the defense attorneys for representing Mr. Al-Nashiri,” made “repeat[ed], explicit, and unfounded attacks on counsels’ competency and veracity,” “improperly creat[ed] a record to public[ly] malign counsel,” “publicly denigrated Mr. Al-Nashiri's counsels’ professional performance and ethical conduct and tarnished their professional reputations,” and “made clear that he believes Mr. Al-Nashiri's defense attorneys are incompetent, negligent, deceitful, or some combination of the three.” Id. at 11, 13–14, 16, 18–20.

Respondent opposes the petition, arguing petitioner has not met the standard for extraordinary relief, and to the extent the military judge did criticize the defense, it was for the purpose of clarifying the record. Resp't's Br. 2 (Feb. 21, 2023).

II. Applicable law

This court has jurisdiction over mandamus petitions for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a). In re Al-Nashiri (Al-Nashiri III), 921 F.3d 224, 233 (D.C. Cir. 2019); see Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). “[M]andamus provides ‘an appropriate vehicle for seeking recusal of a judicial officer during the pendency of a case’ ” and for vacating the issued orders of a disqualified judge. Al-Nashiri III, 921 F.3d at 233 (quoting In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (per curiam)); see id. at 240. A writ of mandamus may only be granted after three conditions are met:

[T]he petitioner must demonstrate that his right to issuance of the writ is clear and indisputable, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires, and the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

In re Hawsawi, 955 F.3d 152, 156 (D.C. Cir. 2020) (quoting Al-Nashiri III, 921 F.3d at 233); see also Cheney v. U.S. District Court, 542 U.S. 367, 380–81 (2004).

Mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’ ” Cheney, 542 U.S. at 380 (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). The remedy is only justified in “exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” id. at 390 (quoting Will v. United States, 389 U.S. 90, 95 (1967)), or for a “clear abuse of discretion,” id. (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)).

“[A] petitioner's right to relief is ‘clear and indisputable’ where he or she can point to ‘cases in which a federal court has held that’ relief is warranted ‘in a matter involving like issues and comparable circumstances.’ ” In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (quoting Doe v. Exxon Mobil Corp., 473 F.3d 345, 355 (D.C. Cir. 2007)).

To warrant relief, petitioner “must identify some ‘irreparable’ injury that will go unredressed if he does not secure mandamus relief.” In re Al-Nashiri (Al-Nashiri I), 791 F.3d 71, 79 (D.C. Cir. 2015) (quoting Banks v. Office of Senate Sergeant-at-Arms & Doorkeeper of U.S. Senate, 471 F.3d 1341, 1350 (D.C. Cir. 2006)). “[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.” Al-Nashiri III, 921 F.3d at 238 (ellipsis in original) (quoting Cobell v. Norton, 334 F.3d 1128, 1139 (D.C. Cir. 2003)).

“Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label.” Id. at 233–34. To ensure public confidence in such a system, “jurists must avoid even the appearance of partiality.” Id. at 234. Under Rule for Military Commissions (R.M.C.) 902(a), MMC (2019 ed.), “a military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned.” Moreover, a military judge is required to disqualify himself or herself if “the military judge has a personal bias or prejudice concerning a party.” R.M.C. 902(b)(1). “A judge should be careful, however, to avoid ‘provid[ing] litigants with a veto against unwanted judges.’ ” In re Hawsawi, 955 F.3d at 157 (alteration in original) (quoting In re Boston's Child. First, 244 F.3d 164, 167 (1st Cir. 2001)). As the discussion to Rule for Military Commissions 902(d)(1) explains, military judges “should broadly construe grounds for challenge but should not step down from a case unnecessarily.”

When considering a challenge based on the appearance of bias, we review the matter under an objective standard—that is, “what ‘would appear to a reasonable person ․ knowing all the circumstances.’ ” Al-Nashiri III, 921 F.3d at 234 (alteration in original) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860–61 (1988)). “This standard requires that we take the perspective of a fully informed third-party observer who ‘understand[s] all the relevant facts’ and has ‘examined the record and the law.’ ” United States v. Cordova, 806 F.3d 1085, 1092 (D.C. Cir. 2015) (per curiam) (alteration in original) (quoting United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008)); see Al-Nashiri III, 921 F.3d at 234 (“ ‘[A]ll that must be demonstrated to compel recusal,’ then, is ‘a showing of an appearance of bias ․ sufficient to permit the average citizen reasonably to question a judge's impartiality.’ ” (alterations in original) (quoting United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981))).

“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings ․ do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). As a result, “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. This principle extends to “expressions of impatience, dissatisfaction, annoyance, and even anger” by a judge. Id. at 555–56. The exception to this principle is when such expressions reveal “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id. at 555. When expressions do not fall within this exception, “[a] judge's ordinary efforts at courtroom administration -- even a stern and short-tempered judge's ordinary efforts at courtroom administration -- remain immune.” Id. at 556.

Lower federal courts and military courts have applied the principles from the Liteky decision. See, e.g., Czekalski v. LaHood, 589 F.3d 449, 457 (D.C. Cir. 2009) (rejecting argument that judicial statements during trial proceedings and rulings required new trial because “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women ․ sometimes display,” do not constitute “bias or partiality” and “judicial rulings alone almost never constitute a valid basis for alleged bias” (quoting Liteky, 510 U.S. at 555–56)); United States v. Cooper, 51 M.J. 247, 251 (C.A.A.F. 1999) (concluding “military judge's personal expression of irritation with defense counsel [ ] did not divest him of the appearance of impartiality”); United States v. Loving, 41 M.J. 213, 257 (C.A.A.F. 1994) (noting that “[g]enerally, courtroom clashes between counsel and the judge do not constitute disqualifying bias”).

Courts also have distinguished a judge's comments directed at defense counsel from those directed at the defendant or defense witnesses. See, e.g., United States v. Edmond, 52 F.3d 1080, 1101 (D.C. Cir. 1995) (per curiam) (finding no evidence of judicial bias where, inter alia, all remarks by judge “were directed at defense counsel, not at the defendants” and some “ ‘rebukes of defense counsel reflected not upon the merits of the case but rather on the way it was being handled’ ” (quoting United States v. DiTommaso, 817 F.2d 201, 220 (2d Cir. 1987))); In re Cooper, 821 F.2d 833, 841–42 (1st Cir. 1987) (per curiam) (concluding judge must “manifest[ ] so virulent an attitude towards an attorney as to reasonably give rise to a question of partiality against the defendant[ ] personally”).

Finally, when a disqualifying appearance of partiality exists, “it is appropriate to consider the risk of injustice to the parties in the particular case, 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.” Liljeberg, 486 U.S. at 864.

III. Analysis

Petitioner's complaint is based on the military judge's ruling on AE 335. Pet'r's Br. 3–5 (quoting AE 335R at 5–7). In his AE 335R ruling, the military judge said the defense had inaccurately summarized his prior AE 335N ruling, mischaracterized a portion of trial counsel's argument, and made an “entirely misleading” statement to the D.C. Circuit. Pet'r's App. 337–39 (citation omitted). The military judge also exhorted defense counsel to use “precise language.” Id. at 339. This is not the stuff of disqualifying judicial bias or the appearance of such. In AE 335R, the military judge was seeking precision on the difference between statements “obtained by” torture, and evidence “derived from” those statements—that is, derivative evidence. See id. at 337–339. The litigation concerning AE 335 also sought resolution of admissibility issues concerning statements obtained by the torture of a third party, Al-Darbi, as opposed to the accused. See, e.g., id. at 336, 338–39.

It is clear the parties agree that statements obtained by torture, from either the accused or a third party, are inadmissible under 10 U.S.C. § 948r. See id. at 33. Regarding evidence derived from statements obtained by torturing the accused, trial counsel said Military Commission Rule of Evidence 304(a)(5) permits its exclusion subject to two exceptions. Id. at 33–34; see supra note 3 (listing two exceptions). On the issue of third-party derivative evidence, trial counsel said, “[t]here is no similar provision or prohibition regarding the admissibility of evidence derived from third parties” in Rule 304, id. at 34, and an accused lacks standing to suppress such evidence, see id. at 33. The military judge ruled at AE 335N that 10 U.S.C. § 948r and Military Commission Rule of Evidence 304 do not require suppression of third-party derivative evidence. Id. at 309.

The interpretations of Military Commission Rules of Evidence 304(a)(1) and 304(a)(5) in relation to derivative evidence is not before us, and we take no position on the matter in this opinion. The question that is before us is whether the military judge demonstrated a disqualifying bias or appearance of bias when he asserted that the defense had mischaracterized his ruling and the government's positions regarding the admissibility of third-party derivative evidence.

The crux of the mischaracterization turns on the distinction between “obtained by” and “derived from.” The difference between “obtained by” and “derived from” is evident from the structure and wording of Military Commission Rule of Evidence 304 itself. The first provision of that rule is titled, “Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment.” Mil. Comm. R. Evid. 304(a)(1). From there, the rule discusses the admissibility of other statements made by the accused and third parties. Id. at 304(a)(2)–(4). Then, Rule 304 has a heading titled, “Derivative Evidence,” and under that a provision titled, “Evidence Derived from Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment.” Id. at 304(a)(5), (a)(5)(A).

In their first 28(j) letter to the D.C. Circuit, the defense claimed trial counsel had asserted during oral argument that “10 U.S.C. § 948r only prohibited the use of evidence obtained by torture against the accused, not third parties.” Resp't's App. 615 (emphasis added). Defense counsel said the government position meant that “[t]estimony about what a witness said under those circumstances [torture] can be admissible at a trial.” Id. at 616 (emphasis added) (quoting New York Times article on hearing). These claims, however, took trial counsel's comment from the April 29, 2022, hearing out of context and are incorrect. In the April hearing, trial counsel said § 948r prohibits the use of evidence obtained by torture of an accused and § 948r also “[c]learly applies to [evidence obtained by the torture of] third parties.” Supra Part I.A (quoting Pet'r's App. 33 (Tr. 16367)).

In their second 28(j) letter to the D.C. Circuit, the defense partially blended the concepts of “obtained by” and “derived from.” See Resp't's App. 621–23. In that letter, defense counsel first said they reviewed the April 29 military commission transcript and then “confirm[ed]” that the lead prosecutor had argued, “Petitioner lacked standing to object to the admissibility of statements obtained from third-parties, even if those statements were derived from the uncontested use of torture against that third-party.” Id. at 622 (emphasis added); see id. at 627–30 (assistant trial counsel's clarification on May 4). Thus, defense counsel took the government's position on lack of standing to object to evidence derived from third-party statements made from the torture of that third party and arguably expanded it to all “statements obtained from third-parties,” including those statements obtained by the use of torture. Id. at 622 (emphasis added). The defense also stated the New York Times article account of the April hearing, as referenced in their first letter, was correct. Id.

Further, with respect to the assistant trial counsel's clarification statement read into the record on May 4, 2022, the defense said that statement “sought to retract the prosecution's [April 29] arguments.” Id. Defense counsel said the prosecution's April argument suggested that 10 U.S.C. § 948r only pertained to statements obtained by the torture of an accused. Id. Although the government had explicitly said 10 U.S.C. § 948r was not limited to just an accused, we find there is some basis for the defense's position. That basis is found in the May hearing where the assistant trial counsel said that the “prosecution [was] clarifying statements” from April 29 “suggest[ing] that 948r(a) only barred ․ a statement obtained from the torture, cruel, inhuman or degrading treatment of the accused.” Pet'r's App. 48 (emphasis added); see id. at 33.

Two weeks later, the government explained its position to the D.C. Circuit in a 28(j) letter: statements obtained by torture are inadmissible “at any stage of the proceedings,” regardless of their source, although the question of the admissibility of third-party derivative evidence remained open at the time. Resp't's App. 633–34.

In June 2022, the defense responded with their third 28(j) letter to the D.C. Circuit. Id. at 635–36. Defense counsel alleged, inter alia, that the prosecution's use of the phrase “derivative evidence” was “misleading” because at issue were the custodial statements made by Al-Darbi in 2002 during the period in which he was mistreated—not things or witnesses discovered from a third-party interrogation. Id. at 635. The prosecution, however, made no claim that Al-Darbi's 2002 statements amounted to derivative evidence. Rather, trial counsel argued that Al-Darbi's treatment in 2002 did not rise to the 10 U.S.C. § 948r level requiring suppression of his 2002 statements. See Pet'r's App. 25–33. The derivative evidence at issue in the AE 335 motion was not the statements Al-Darbi made in 2002—it was evidence derived from the 2002 statements and included any “future” testimony Al-Darbi might give, as well as Al-Nashiri's own 2007 statement. Id. at 88–91.

The defense also asserted in their June letter that “the prosecution ․ had revised its interpretation of § 948r.” Resp't's App. 635. Defense counsel essentially claimed the government had conceded that statements obtained by torture of anyone are inadmissible, but still was arguing that the admissibility of third-party derivative evidence may not be challenged by an accused.

Al-Nashiri's counsel took the prosecutor's April 2022 statement out of context, resulting in a mischaracterization of the government's position on statements obtained by torture. The military judge took corrective action by explaining the matter to the parties and calling for the use of “precise language.” We see nothing improper in the military judge's effort to correct the defense's apparently strongly held misunderstanding of the positions advanced by the government, and the ruling by the military judge.

Notably, in the mandamus petition before this court, the defense does not claim their characterizations of the government's positions or the military judge's ruling are correct. Instead, the defense points to the military judge's initial ruling on the discovery matter and states the military judge concluded he was not barred from considering statements “derived from torture” for “ ‘relevant interlocutory issues.’ ” Pet'r's Br. 18 (quoting AE 353AA at 6); see Pet'r's App. 544 (AE 353AA). The defense then notes that by the time the mandamus petition arising from that ruling was heard by the D.C. Circuit, the government had abandoned its position. Pet'r's Br. 18–19 (citing Al-Nashiri IV, 47 F.4th at 823). This course of action by the government, according to the defense, “is what led to the defense's 28(j) letters.” Id. at 19; see also id. at 2–3. Of relevance to us, however, is the observation that the defense takes issue with the changing government position—apparently not the correctness of that position.

Based on the record before us, petitioner has failed to establish that the military judge is, in fact, less than impartial. The military judge's comments were measured in tone and content, and squarely arose from issues litigated before the commission—and for which petitioner sought extraordinary relief. The defense suggests the military judge intentionally made his comments in his reconsideration ruling to dissuade defense counsel from appealing the merits of his ruling at AE 335N, in which he denied the motion to suppress Al-Darbi's statements. Id. at 19. The chilling effect, defense contends, lies in the fact that such appeal “would require counsel to explain to reviewing courts why Mr. Al-Nashiri's attorneys should be trusted.” Id. Yet, there is no indication in the record that the military judge was in any way motivated to circumvent any interlocutory appeals in this case. Moreover, we see no indication that the military judge sought to influence the D.C. Circuit or undermine defense counsel's advocacy there. The military judge's comments that petitioner complains of were directed at defense counsel and their conduct with respect to a commission-level reconsideration ruling, not in a submission to the D.C. Circuit.

We conclude the military judge's comments in AE 335R denying the defense's request for reconsideration were an attempt to delineate the issues before the commission, nail down the parties’ positions on those issues, and correct the defense's apparent misunderstanding of both the government's positions and the military judge's own ruling at AE 335N. Pursuant to Rule for Military Commissions 801(a)(3), military judges shall “exercise reasonable control over the proceedings to promote the purposes of [the Rules for Military Commissions] and [the Manual for Military Commissions].” The discussion to that rule notes that military judges “should prevent the unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties’ presentations or the appearance of partiality.” The discussion further notes that “[t]he parties are entitled to a reasonable opportunity” to present their positions on relevant matters.

It is clear that the defense misunderstood the government's positions and court's ruling on admissibility of evidence. It is also clear that the military judge was well within his authority to attempt to bring to an end the confusion so that the commission could focus on other matters in petitioner's case. The military judge's suggestion for more “precise language” directed towards the defense is unremarkable, particularly so since it was defense references to the military judge's AE 335R reconsideration ruling and the government's positions on admissibility of evidence that gave rise to the dispute now before us. Also, the military judge's comments were not directed at petitioner personally. See Edmond, 52 F.3d at 1101.

Petitioner has failed to demonstrate that the military judge is personally biased or has created the appearance of partiality. A reasonable person knowing all the circumstances would arrive at the same conclusion we do: the military judge did little more than reasonably exercise his authority to clarify a point of confusion to promote efficiency and to focus the parties on the actual legal issues at hand. The military judge's comments fall far short of demonstrating any sort of deep-seated antagonism that would make fair judgment impossible and are well within the range of “critical or disapproving” remarks judges may permissibly make. Liteky, 510 U.S. at 555.

The military judge did not criticize defense counsel's ethics. The military judge explained he was “not alleg[ing] or assum[ing] that the Defense intended to mislead any court.” Pet'r's App. 339. Even without that disclaimer, the military judge merely asserted that the defense had “inaccurately summariz[ed]” the AE 335N ruling, “mischaracterized” trial counsel's argument, and said one single defense statement on the government's position was “entirely misleading.” Id. at 337–38. Those bald assertions are not a personal attack on defense counsel, much less ethical allegations calling into question the effectiveness of petitioner's legal representation.

IV. Conclusion

Petitioner failed to demonstrate that the military judge held a disqualifying actual bias or appearance of bias against defense counsel or petitioner. He failed to show his right to mandamus is “clear and indisputable.” In re Hawsawi, 955 F.3d at 156 (quoting Al-Nashiri III, 921 F.3d at 233); Cheney, 542 U.S. at 381. Therefore, petitioner has failed to demonstrate entitlement to the extraordinary interlocutory relief he seeks.

ORDERED that the petition for writ of mandamus and writ of prohibition seeking the military judge's disqualification and the vacation of his orders issued on or after May 3, 2022, is DENIED.

FOOTNOTES

1.   All citations to petitioner's appendix (Pet'r's App.) are to petitioner's appendix in support of his petition for a writ of mandamus and prohibition filed on February 20, 2023, and not to his appendix in support of his stay application filed one week prior.

2.   The legal provisions relevant in this case address “torture or cruel, inhuman, or degrading treatment.” 10 U.S.C. § 948r(a); Mil. Comm. R. Evid. 304(a)(1), (a)(5), Manual for Military Commissions, United States (2019 ed.). Solely for purposes of the readability of this opinion, we frequently truncate the standard to “torture.”

3.   The exceptions in Military Commission Rule of Evidence 304(a)(5)(A) provide that evidence derived from a statement obtained by torture may be admissible “against an accused who made the statement if” a preponderance of the evidence shows that “(i) the evidence would have been obtained even if the statement had not been made; or (ii) use of such evidence would otherwise be consistent with the interests of justice.”

4.   For convenience only, in this opinion we refer to the notebook that was seized as “the notebook” or “Al-Nashiri's notebook.”

5.   Citation references to the transcript (Tr.) are to the unofficial/unauthenticated transcript.

6.   In its letter, the government referenced a fourth 28(j) letter by the defense that was submitted to the D.C. Circuit on May 6, 2022. Resp't's App. in Support of Opp. to Stay 633 (Feb. 14, 2023). That letter is not included in the record before us. For purposes of our discussion, we assume it contains nothing relevant to our resolution of the issues before us.

7.   On August 18, 2023, the military commission judge ruled to suppress Al-Nashiri's January/February 2007 statement made to an FBI special agent and two military special agents, citing 10 U.S.C. § 948r and Mil. Comm. R. Evid. 304. Gov't App. 45, 50, United States v. Al-Nashiri, No. 23-005 (CMCR Sept. 5, 2023) (App. Ex. 467CCC). He declined to suppress Al-Nashiri's statement to the Combatant Status Review Tribunal made on March 14, 2007. Id. at 50.

8.   The military judge also ruled that the defense request “to suppress ‘accompanying statements’ related to the notebook” was mooted by government assurances that it would “not attempt to introduce, at any stage of the trial, statements made by [Al-Nashiri] while he was in CIA [Central Intelligence Agency] custody.” Pet'r's App. 580–81. Regarding suppression of other unspecified statements made by Al-Darbi or others related to the notebook contents, the military judge ruled that the circumstances of Al-Nashiri's capture, and recovery of his notebook, were “not relevant to whether statements made about the contents of the notebook by someone other than [Al-Nashiri] would be admissible at trial.” Id. at 581.

9.   We understand defense counsel to argue that the government's position made by the lead prosecutor at the April 29, 2022, hearing, and the assistant trial counsel's position made at the May 4, 2022, hearing were the same and the military judge adopted that position—which was disowned by appellate government counsel before the D.C. Circuit.

Holifield, Judge:

Opinion for the court filed by Judge Holifield.