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 (2024)

PUBLISHED OPINION OF THE COURT

Before us is a petition for a writ of mandamus and prohibition, as amended, filed by Petitioner Abd Al-Rahim Hussayn Muhammad Al-Nashiri, also known as Abd Al-Rahim Hussein Muhammed Al-Nashiri and Abd Al-Rahim Hussein Al-Nashiri.¹ Petitioner seeks to disqualify the military judge presiding over his military commission on the ground of appearance of bias.² In January 2023, the judge told the parties that, after nearly twenty-five years of service as an Army officer, he would be retiring from the military later in the year. Subsequently, he sought a civilian job with the Department of Defense (DOD) as the Clerk of Court for the Air Force Trial Judiciary (Clerk). He disclosed his application for that job to the parties the day after its submission.

Petitioner contends that the judge failed to follow the ruling in In re Al-Nashiri (Al-Nashiri III), 921 F.3d 224 (D.C. Cir. 2019). Pet'r’s Amend. Br. 13–14 (June 9, 2023). He claims that case established a “bright-line rule” providing that a military judge is disqualified upon submission of an application seeking employment with a party to the commission case before the judge.³ Id. at 14. Petitioner argues: First, the DOD is a party to his commission, Pet'r’s Amend. Br. 25; second, by applying for the Clerk's position, the military judge sought employment with that party, id.; third, the judge, therefore, was automatically disqualified from presiding over petitioner's commission,⁴ id.; see also id. at 13. We disagree.

After reviewing “the totality of the circumstances” in this case, we conclude that the military judge's conduct did not “fall[ ] on the impermissible side of the line” that requires disqualification. Al-Nashiri III, 921 F.3d at 235. At its core, Al-Nashiri III requires disqualification when (i) a military commission judge applies for a new job in the federal government and (ii) the judge is hired and/or supervised by a person (or an office) that has a discernible interest or partisan involvement in the outcome of a military commission.⁵ Id. The person or office is considered the employer in the Al-Nashiri III disqualification analysis. The disqualifying interest or involvement may be general regarding military commissions, or specific to the case over which the judge is presiding, as determined by the facts. Id. at 236.

Who is the Clerk's employer may be answered in two ways. Technically, the employer is the United States Department of the Air Force (the Air Force), a military department within the DOD. There also is a public perception that the civilian women and men who work in DOD jobs are employed by the DOD. This view is supported by public statements made by the DOD about its workforce and statements on the government website that posted the job opening at the center of Al-Nashiri's petition. See infra Part II.C. The public perception is supported further by Judge Acosta's observation that if hired, he would “continue working for the DOD as the Clerk of Court for the Air Force Trial Judiciary.” Suppl. App. 7 (emphasis added).⁶

Al-Nashiri III tells us that “[o]n issues of judicial impartiality ․ we confront a question of reasonable appearances, not just formal designations.” 921 F.3d at 236. In addition, the Supreme Court says the “very purpose of [a disqualification statute] is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988).⁷ Given these considerations, our analysis of petitioner's disqualification claim first focuses on the DOD as the Clerk's employer. Then we will examine the issue looking at the Air Force as the employer. The disqualification question for both is the same: whether either has a discernable interest or partisan involvement in the outcome of petitioner's military commission, or any other commission. In this regard, we must examine whether the Air Force, including the United States Air Force (USAF), an armed service branch, has a disqualifying impediment.

We conclude that the DOD writ large has no interest or partisan involvement in the outcome of petitioner's military commission, or any other commission. We reach the same conclusion in our consideration of the Air Force as the Clerk's employer.

For these reasons and those discussed below, the judge's search for, and acceptance of, post-retirement employment as the Clerk did not create an appearance of bias that required his disqualification from petitioner's case. Al-Nashiri, therefore, has not established a clear and indisputable right to disqualification of the military judge. We, therefore, deny the petition.

I. FACTS

A. Introduction

On September 28, 2010, the convening authority referred charges against petitioner to a military commission at Naval Station Guantanamo Bay, Cuba. Resp't’s App. 201–12 (June 12, 2023) (App.) (charge sheet). The charges allege crimes in violation of the Military Commissions Act of 2009, 10 U.S.C. §§ 948a et. seq. (2009 MCA), which are related to the January 3, 2000, attempted attack on the USS THE SULLIVANS; the October 12, 2000, attack on the USS COLE, which killed seventeen United States Navy servicemembers; and the October 6, 2002, attack against the MV Limburg (a French supertanker), which killed one civilian crewmember.⁸ Id.; see In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110, 113–16 (D.C. Cir. 2016) (detailing alleged 2009 MCA violations). The government seeks the death penalty. App. 202.

On February 12, 2019, Colonel Lanny J. Acosta, Jr., United States Army, (Judge Acosta or the military judge) was detailed ⁹ as the presiding judge over petitioner's commission. App. 225. On January 6, 2023, he notified the parties of his plans to retire from the Army on September 30, 2023. App. 226. He disclosed on April 19, 2023, that he applied for the position of Clerk of Court for the Air Force Trial Judiciary on the previous day (April 18). App. 433. Five weeks later, petitioner filed a motion seeking to disqualify Judge Acosta for the appearance of bias and vacatur of all his rulings, effective April 18, 2023, pursuant to Rule for Military Commissions (R.M.C.) 902(a), Manual for Military Commissions, United States (MMC) (2019 ed.). Pet'r’s App. 136 (June 9, 2023). Before the military judge ruled on that motion at Appellate Exhibit 548F,¹⁰ Resp't’s Suppl. App. 1 (June 17, 2023) (Suppl. App.), petitioner sought a writ of mandamus and prohibition, the matter that is now before us. In his petition, he seeks disqualification of Judge Acosta and vacatur of his rulings, effective January 6, 2023, the date when Judge Acosta first announced his intent to retire from the military.¹¹

B. The military judge's application for the Clerk position

When Judge Acosta notified the parties on January 6 of his retirement plans, he said that as of his retirement on October 1, 2023, he would be ineligible to serve as a military commission trial judge. App. 226; see 10 U.S.C. § 948j(b); R.M.C. 502(c)(1) (requiring a military commission judge to be “a commissioned officer of the armed forces, serving on active duty”). In that notice, Judge Acosta also said that he had not sought, and did not intend to seek, post-retirement employment “that could cause an appearance of a conflict of interest, [ ] addressed ․ in In re Al-Nashiri III.” App. 226, 433; see Suppl. App. 3–6.

On April 18, 2023, Judge Acosta submitted an application for an “Attorney Advisor” position listed on the USAJOBS.gov website. App. 438; see App. 343. According to the listing announcement, the person in this position would “serve as the Clerk of Court for the Air Force Trial Judiciary providing highly specialized consultation and advice to military judges regarding procedural, evidentiary and sentencing issues as they arise prior to and during courts-martial and administrative hearings.”¹² App. 343. Judge Acosta described the job as “a very administrative, data-driven position.” Suppl. App. 53.

The next day, Judge Acosta told the parties that he had applied for the Clerk position. App. 433, 438–39. He said:

Prior to applying, I considered R.M.C. 902, other applicable rules, the ethical canons of the Code of Judicial Conduct and various other applicable cases, including the D.C. Circuit ruling in this case. I determined that there's no possible conflict between my role as the military judge in this case and my application.

․

I only disclose that [Clerk] application because [the position] is within the Department of Defense. There's been other issues in other cases where -- in other commissions about applications within the Department of Defense. Again, this is to work for the Air Force Trial Judiciary as the clerk of court, and that was -- that's the limit of the -- of what I think at -- in the most abundance of caution, that I'm disclosing that[,] in case you had any questions whatsoever. If I felt that there was any issue, I would not have applied.

App. 433–34; see also App. 449–50 (discussing disclosure); Suppl. App. 32–33, 39.¹³ The parties declined an invitation to ask Judge Acosta questions on that day, April 19. App. 434.

C. The voir dire of Judge Acosta

On April 20 and 21, 2023, defense counsel conducted voir dire of Judge Acosta regarding his job application.¹⁴ App. 438–40, 445–50. Judge Acosta stated that he applied only for the Clerk position, he did not apply for a position with the Department of Justice (DOJ), and he had no intention of applying for a DOJ position. App. 438, 450; see also Suppl. App. 38–39. He explained that he first learned of and decided to apply for the Clerk position at about 5:00 p.m. on April 18, and submitted his application later that day at about 8:00 p.m. App. 438–39; see also Suppl. App. 29–30, 40, 67.

Prior to submitting his application, Judge Acosta emailed the Chief Trial Judge for the Air Force Trial Judiciary, Colonel Charles Wiedie, Jr., who also was the hiring official for the Clerk's position. App. 425–26; App. 448; Suppl. App. 40, 43, 83.¹⁵ The two judges knew each other because Judge Acosta, as Chief Trial Judge for Military Commissions, had asked Judge Wiedie to nominate USAF judges to serve as military commission judges.¹⁶ App. 447–48. In his email, Judge Acosta wanted to know whether Judge Wiedie saw any conflict in his applying for the Clerk job. App. 426, 448; Suppl. App. 33. Judge Wiedie replied the next day, saying that he did not see anything that would create a conflict. App. 426, 448–49; Suppl. App. 40.

Judge Acosta also was asked in written voir dire questions about any involvement with military commissions by Chief Trial Judge Wiedie and his Deputy Chief Trial Judge (who was on the hiring panel for the Clerk position). App. 185–86. He replied, “I'm not aware that any of them have any other role other than the securing of nominees that meet the statutory requirement for military judges in the military commissions. That's all I know of.” Suppl. App. 64; see also id. at 44. As discussed infra Part II.D, The United States Air Force Judge Advocate General (TJAG) nominates USAF military judges to serve as commission judges, but he does not select, assign, or detail those nominees to a specific military commission case.

Judge Acosta during voir dire on April 21 reiterated the statements he made in his April 19 disclosure: that he was well aware of Al-Nashiri III, the judicial code of conduct, the canons of judicial ethics, relevant rules, and Rule for Military Commission 902. App. 446. He said he understood that he could not use his judicial position to advance his effort to secure post-retirement employment. Id. He also said he did not think that Al-Nashiri was mentioned by name in his application, resume, or cover letter; instead, he “only listed the general outline of duties of a military judge, ․ and as the Chief Judge.” App. 446–47; see also Suppl. App. 39. Judge Acosta did not include with his application a writing sample because it was not required. App. 448; see also App. 433; Suppl. App. 39, 42.

Judge Acosta formally accepted a tentative job offer for the Clerk position on May 11, 2023, and issued a notice on May 26 informing the parties of the date of his acceptance.¹⁷ App. 23; see also Suppl. App. 33–35. As of June 21, 2023, Judge Acosta had not received a final offer.¹⁸ Pet. for Writ of Mand. & Prohib. at 12, In re Al-Nashiri, 2023 U.S. App. LEXIS 18717 (D.C. Cir. July 21, 2023) (No. 23-1159) (per curiam order) (citing Tr. 24831).¹⁹

D. The motion to disqualify

Petitioner moved to disqualify Judge Acosta for appearance of bias and for vacatur of his orders as of April 18, 2023 (when he applied for the Clerk's position). App. 1 (App. Ex. 548). A USAF judge advocate serving as petitioner's detailed defense lawyer signed the motion. App. 14. The government produced certain requested discovery on May 25 and May 26, 2023. App. 360–426. The materials disclosed that “[t]he hiring official for the Clerk of Court of the Air Force Trial Judiciary position was ․ [the] Chief Trial Judge, Air Force Trial Judiciary.” App. 425. “The qualifying authority was ․ [the] Civilian Career Field Manager, Professional Development Directorate,” a General Service (GS) 15 position. Id.; see id. at 419; see supra note 15.

Judge Acosta said during voir dire on June 12, 2023, that he remained impartial, nothing improperly influenced him, and no job application or individual “ever tried to influence any decision” he made in petitioner's case. Suppl. App. 37. The judge further said that “all [his] judicial decisions [were his] own.” Id. Petitioner said that he remained concerned about the possibility that Judge Acosta might attempt to influence the next military judge assigned to his case during Judge Acosta's transition, or as Clerk. Pet'r’s Reply 7 (June 23, 2023); see also Appellate Tr. 14–15 (CMCR July 24, 2023) (arguing continuing influence as Clerk), 52 (arguing influence on transition). Judge Acosta, however, made it clear he would not do that. See Suppl. App. 71–72. He observed that judges “guard their independence fiercely” in general and with respect to their “decisions on rulings, [and] their ability to make their own decision based upon their own evaluation of the evidence.” Id. at 71; see also Appellate Tr. 29. He explained that he “would expect nothing less of any judge that took a case, regardless of what level that it was at, that they would evaluate the evidence on their own and make their own decision.” Suppl. App. at 71. Judge Acosta also stated that

it is inappropriate for any judge to try to influence another judge to make a decision in any way, nor would I do so. And it is inappropriate to suggest that I would try to make a -- to influence the decision of any judge.

Any judge that takes this case after me is -- it is their case. They can go back and reconsider anything.

Id.

E. The military judge denies the motion to disqualify

On June 12, 2023, Judge Acosta denied petitioner's motion to disqualify him. Suppl. App. 1–8 (App. Ex. 548F), 28–29. In so ruling, Judge Acosta recognized that an accused in a military commission has the right to an impartial judge. Id. at 3 (citing R.M.C. 902(a)). He found that the Air Force Trial Judiciary Chief Trial Judge was the hiring official and the Civilian Career Field Manager, Professional Development Directorate, was the qualifying authority for the Clerk's position. Id. at 2.

After reviewing the legal standards, including Al-Nashiri III, Judge Acosta concluded that petitioner was seeking “to expand the reach of Al-Nashiri III to [job] applications by a military commission judge [for] a post-retirement position within the Department of Defense, and more specifically within the Air Force Trial Judiciary.” Id. at 4. He pointed out that the defense had argued that the USAF was a party to the case because USAF judge advocates were detailed to the prosecution team, but did not “mention that uniformed [USAF] lawyers [were] also detailed to defend the Accused.” Id.; App. 275 (memorandum detailing USAF judge advocate to Al-Nashiri's defense team). Under the circumstances, Judge Acosta concluded that the defense argument was “strained at best.” Suppl. App. 4.

Judge Acosta applied Al-Nashiri III’s two-step approach to determine if a potential employer was a party to the case before him—asking who was the hiring authority for the Clerk position and was the USAF a party to Al-Nashiri's case. Id. at 5–6. Regarding the hiring authority, he found that

unlike the Attorney General who is “directly involved in selecting and supervising immigration judges,” the Secretary of Defense does not play a similar role in the hiring of the Clerk of Court for the Air Force Trial Judiciary․ Nor does any other official with any substantial interest in the outcome of [Al-Nashiri's] case.

Id. at 5 (quoting Al-Nashiri III, 921 F.3d at 235). Judge Acosta noted in his ruling that the “civilian employee in the Air Force Office of The Judge Advocate General” who “acted as the qualifying authority in approving the Trial Judiciary's hiring decision” was “most assuredly many layers removed from the Secretary of Defense.” Id. He found that the facts before him were “a far cry from the situation in Al-Nashiri III, where the Attorney General, as the hiring authority, also has a direct statutorily prescribed role in the case of United States v. Al-Nashiri.” Id. Based on the foregoing, Judge Acosta concluded that “the Air Force Trial Judiciary is not a party to and does not have a direct interest associated with this military commission such as the interests at play in Al-Nashiri III.” Id. at 5–6.

Judge Acosta did not directly address whether the Air Force writ large was a party. Rather, he held “that a truly reasonable and objective person—understanding how the military justice system works, how military assignments work, and understanding that almost all participants in the military commissions process are employed by the DOD” would not “harbor doubts about a military judge's impartiality simply because he applied for post-retirement employment within the same department that has already employed him for the past quarter of a century.” Id. at 7. He added that all military judges are “employed by the DOD.” Id. Thus:

If applying to work for the DOD is grounds for recusal, then employment by the DOD as a military judge in the first instance could arguably be considered as grounds for recusal from any court-martial or military commission where the United States ․ is considered a party, which is to say all of them.

Id. In denying the motion, Judge Acosta found that “the facts and circumstances addressed herein would lead a reasonable, well-informed, thoughtful, and objective observer to find no appearance of bias in this case.” Id. at 8.

II. LAW AND LEGAL ANALYSIS

A. The mandamus standard

A petition for a writ of mandamus is an appropriate vehicle to seek disqualification of a military commission judge. In an earlier case involving the petitioner, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) held:

[B]ecause the All Writs Act permits us to “issue all writs necessary or appropriate in aid of [our] ․ jurisdiction[ ],” 28 U.S.C. § 1651(a), “we can issue a writ of mandamus now to protect the exercise of our appellate jurisdiction later,” [In re Al-Nashiri (]Al-Nashiri I[)], 791 F.3d [71,] 76 [(D.C. Cir. 2015)]. As we explained in In re Mohammad, ․ mandamus provides “an appropriate vehicle for seeking recusal of a judicial officer during the pendency of a case, as ‘ordinary appellate review’ following a final judgment is ‘insufficient’ to” remove the insidious taint of judicial bias. 866 F.3d 473, 475, 432 U.S. App. D.C. 77 (D.C. Cir. 2017) (quoting Al-Nashiri I, 791 F.3d at 79).

Al-Nashiri III, 921 F.3d at 233 (second and third brackets and first ellipsis in original); see also Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943) (discussing “traditional use of the writ in aid of appellate jurisdiction” and citing cases).

The standard for issuing a writ of mandamus disqualifying a military judge is well known. Before we may grant a writ, three conditions must be satisfied: (1) “ ‘the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires,’ ” (2) petitioner must demonstrate “ ‘that [his] right to issuance of the writ is clear and indisputable,’ ” and (3) “the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Cheney v. U.S. District Court, 542 U.S. 367, 380–81 (2004) (alterations in original) (some internal quotation marks and citations omitted), quoted in Al-Nashiri III, 921 F.3d at 233; see also In re Hawsawi, 955 F.3d 152, 156 (D.C. Cir. 2020) (same). The D.C. Circuit also has said:

Because “[m]andamus is a ‘drastic’ remedy, ‘to be invoked only in extraordinary circumstances,’ ” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)), it is available only if “no adequate alternative remedy exists,” Barnhart v. Devine, 771 F.2d 1515, 1524 (D.C. Cir. 1985). Therefore, “[g]iven the availability of ordinary appellate review” after conviction, Al-Nashiri “must identify some ‘irreparable’ injury that will go unredressed if he does not secure mandamus relief” now. Al-Nashiri I, 791 F.3d at 79 (quoting Banks v. Office of Senate Sergeant-at-Arms & Doorkeeper of U.S. Senate, 471 F.3d 1341, 1350 (D.C. Cir. 2006)).

Al-Nashiri III, 921 F.3d at 237 (alterations in original; parallel citations omitted).

When the issue is judicial disqualification, the first and third criteria under Cheney—the “other adequate means” and “appropriateness” conditions—typically are satisfied. “When 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.” Cobell v. Norton, 334 F.3d 1128, 1139 (D.C. Cir. 2003), quoted in Al-Nashiri III, 921 F.3d at 238; In re Mohammad, 866 F.3d at 475 (stating similar). As to appropriateness, In re Mohammad tells us that when the issue is judicial disqualification, we should not “withhold issuance of the writ if Petitioner is otherwise entitled to it.” 866 F.3d at 475; see also In re Kempthorne, 449 F.3d 1265, 1269 (D.C. Cir. 2006) (“Although a writ of mandamus is an extraordinary remedy, we will issue the writ compelling recusal of a judicial officer where the party seeking the writ demonstrates a clear and indisputable right to relief.” (internal quotation marks and citations omitted)).

Al-Nashiri's petition seeks vacatur of the military judge's decisions during the period of alleged disqualification. Thus, our discretion is guided by the three Liljeberg factors in determining whether issuance of a writ of mandamus “is appropriate under the circumstances.” Al-Nashiri III, 921 F.3d at 239. Those factors are: “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; see Al-Nashiri III, 921 F.3d at 239 (discussing injustice in future case). In addition to the significance of the third Liljeberg factor, Al-Nashiri III also noted: “In no proceeding is the need for an impartial judge more acute than one that may end in death.” 921 F.3d at 239. With this in mind, we still retain the discretion to fashion an appropriate remedy if we disqualify the judge. See, e.g., In re Al-Tamir, 993 F.3d 906, 911 (D.C. Cir. 2021) (stating appropriate remedy is de novo reconsideration of prior rulings, not dissolution of commission).

Whether we should issue the writ in this case, thus, turns on the second Cheney condition: Has petitioner demonstrated a clear and indisputable right to the writ? Accordingly, the question we must decide is: Did the military judge's application for and/or acceptance of post-retirement civilian employment as Clerk of Court for the Air Force Trial Judiciary create a disqualifying appearance of bias? The hazards that give rise to such an appearance are (i) the perception that a judge will use his position to gain favor with a future employer, Al-Nashiri III, 921 F.3d at 235, and (ii) circumstances where a judge has “a prospective financial relationship with one side,” which makes it impossible to “persuade the other [side] that he can judge fairly in the case,” Pepsico, Inc. v. McMillen, 764 F.2d 458, 461 (7th Cir. 1985), quoted in Al-Nashiri III, 921 F.3d at 235.

In assessing the facts, we presume military judges are impartial. Republican Party of Minn. v. White, 536 U.S. 765, 796 (2002) (stating Court “should not, even by inadvertence, ‘impute to judges a lack of firmness, wisdom, or honor’ ” (quoting Bridges v. California, 314 U.S. 252, 273 (1941))); Withrow v. Larkin, 421 U.S. 35, 47 (1975) (There is “a presumption of honesty and integrity in those serving as adjudicators.”). Petitioner “bears the substantial burden of proving otherwise.” United States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006) (citation omitted).

B. The disqualification standard

Rule for Military Commissions 902(a) requires that a “military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned.” This rule is the same as the one found in Rule for Courts-Martial 902(a), Manual for Courts-Martial, United States (2024 ed.). The disqualification standards in Rule for Courts-Martial 902(a) “parallel the statute governing disqualification of federal civilian judges, 28 USC § 455.” United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001). It thus follows that the standards in Rule for Military Commission 902(a)—the same rule as Rule for Courts-Martial 902(a)—also parallel § 455. Accordingly, we apply the law controlling disqualification under § 455 for an appearance of bias to our interpretation of Rule for Military Commission 902(a); that law is settled.

“The standard for disqualification under § 455(a) is ․ objective” and “[t]he question is whether a reasonable and informed observer would question the judge's impartiality.” United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001) (en banc) (per curiam), quoted in In re Flynn, 973 F.3d 74, 87 (D.C. Cir. 2020) (en banc) (per curiam) (Henderson, J., dissenting); United States v. Cordova, 806 F.3d 1085, 1092 (D.C. Cir. 2015) (per curiam); SEC v. Loving Spirit Found. Inc., 392 F.3d 486, 493 (D.C. Cir. 2004); In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir. 2004).²⁰ “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.’ ”²¹ Cordova, 806 F.3d at 1092 (alteration in original) (quoting United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008)); In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2nd Cir. 1988) (stating after “examining the record facts and law,” the judge determines appearance of judicial impropriety as “a reasonable person knowing and understanding all the relevant facts”); see also United States v. Mitchell, 39 M.J. 131, 143 (C.M.A. 1994) (“The test is whether a reasonable person who knew all the facts might question the[ ] ․ military judge[’s] impartiality.”), quoted in United States v. Jones, 55 M.J. 317, 319 (C.A.A.F. 2001).

Further, we are “not to use the standard of ‘Caesar's wife,’ the standard of mere suspicion.” In re Allied–Signal, Inc., 891 F.2d 967, 970 (1st Cir. 1989). We must consider “how the[ ] facts would appear to a well-informed, thoughtful and objective observer”—not “the hypersensitive, cynical, and suspicious person.” Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (citation omitted).

We “must consider too that the federal disqualification provisions reflect a strong federal policy to preserve the actual and apparent impartiality of the federal judiciary.” Microsoft, 253 F.3d at 108. This is so because the “very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg, 486 U.S. at 865. As emphasized by the Supreme Court, “justice must satisfy the appearance of justice.” Id. at 864 (quoting In re Murchison, 349 U.S. 133, 136 (1955)); Al-Nashiri III, 921 F.3d at 234 (quoting Murchison, at 136). As such,

it is beyond question that judges may not adjudicate cases involving their prospective employers. The risk, of course, is that an unscrupulous judge may be tempted to use favorable judicial decisions to improve his employment prospects—to get an application noticed, to secure an interview, and ultimately to receive an offer.

Al-Nashiri III, 921 F.3d at 235.

As strict as the rule is, a “judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.” In re Drexel, 861 F.2d at 1312; United States v. Uribe, 80 M.J. 442, 451 (C.A.A.F. 2021) (stating similar).

C. The factual analytical framework

We begin by asking who is the Clerk's employer? As we have noted, petitioner's counsel contend that the DOD is the Clerk's employer. Pet'r’s Amend. Br. 14–15; Pet'r’s Reply 12–13. The government argues that the Air Force Trial Judiciary is the employer. Resp't’s Br. 49 (June 17, 2023). Neither party provides a convincing legal basis for its position on who employs the Clerk. See Pet'r’s Amend. Br. 14; Resp't’s Br. 49; Pet'r’s Reply 12.

The Air Force is a “military department” within the DOD. 10 U.S.C. § 101(a)(8); see also 5 U.S.C. § 102. “The Regular [USAF] is the component of the Air Force that consists of persons who[ ] continuous[ly] serv[e] on active duty ․” 10 U.S.C. § 9066(a). The USAF also is one of the armed forces of the United States. 10 U.S.C. § 101(a)(4). These definitions in Title 10 of the United States Code show that “Congress intended a distinction between ‘military departments’ and ‘armed forces.’ ” Gonzalez v. Dep't of Army, 718 F.2d 926, 928 (9th Cir. 1983) (stating 10 U.S.C. § 101(7) (1976), and 5 U.S.C. § 102 (1982), have one similar definition for “military department,” while 10 U.S.C. § 101(4) (1976) has another “separate definition for ‘armed forces’ ”). As a DOD military department, the Air Force is “authorized to employ the number of civilian employees for which Congress provides appropriations.” Am. Fed'n of Gov't Emps. v. Hoffman, 543 F.2d 930, 937–38 (D.C. Cir. 1976) (citing 5 U.S.C. § 3101); see Am. Fed'n of Gov't Emps. v. Resor, 387 F. Supp. 63, 70 (D.D.C. 1974) (stating “military departments of the Army and Air Force have the same statutory authority” (citing 5 U.S.C. § 3101)), aff'd, 543 F.2d 930 (D.C. Cir. 1976); Bledsoe v. Webb, 839 F.2d 1357, 1358 (9th Cir. 1988) (adjudicating claim by a “civilian employee of a military department”). The DOD, an executive agency, also is authorized to employ civil servants to the extent funding has been appropriated. 5 U.S.C. § 3101.

These authorities demonstrate that the Clerk is a civilian employee of a DOD military department, to wit: the Air Force. We have found no statutory or other basis to support a finding that the Air Force Trial Judiciary is the Clerk's employer. Rather than employer, the Air Force Trial Judiciary is an office within the USAF and, simply stated, is the place where the Clerk works. The foregoing, however, does not end our consideration of who is the employer. As noted, Al-Nashiri III informs us that “[o]n issues of judicial impartiality ․ we confront a question of reasonable appearances, not just formal designations.” 921 F.3d at 236.

We find that the public reasonably may view those who work within the DOD as DOD employees. Statements by the DOD support this finding. In an announcement on DOD civilian employment opportunities, the DOD has noted that it “employs 950,000 civilians, many serving in critical positions worldwide,” adding that those employees “play an important role in the defense of our Nation and in supporting our Armed Forces. The Army, Navy, Air Force, Marines, and other DOD Agencies have civilian positions in nearly 675 occupations.”²² The USAJOBS website states “[t]here are many opportunities [in the DOD] requiring a diverse range of skills. If a competitive salary, great benefits, unsurpassed training, and the pride of defending our nation interests you, then your future is with DOD.” Supra note 22. These statements demonstrate that civilians who work within the DOD may be perceived by the general public to be DOD employees and are considered as such. Thus, we are required to treat the DOD as the Clerk's employer in our apparent bias disqualification analysis under Al-Nashiri III. We do this first. Then we will address the Air Force as the employer.

We begin by asking two questions. Is the DOD a party to the prosecution of Al-Nashiri? What is the role of the DOD in the military commissions?

Generally, a “ ‘party’ to litigation is ‘[o]ne by or against whom a lawsuit is brought.’[”] Smith v. Bayer Corp., 564 U.S. 299, 313 (2011) (first alteration in original; citation omitted), quoted in Molock v. Whole Foods Mkt. Grp., Inc., 952 F.3d 293, 296–97 (D.C. Cir. 2020). Black's Law Dictionary puts a finer point on the term, defining “parties” as “anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment.” (11th ed. 2019). Another legal dictionary defines party as a “participant[ ] in a ․ legal proceeding who has an interest in the outcome.”²³ In federal criminal cases, which include military commission cases, the action is “prosecute[d] in the name of the United States,” as sovereign, against a defendant or, in military nomenclature, an accused. Al-Nashiri III, 921 F.3d at 236 (quoting 10 U.S.C. § 949c(a)).²⁴ Thus, “United States” appears in the case caption of criminal cases as a party.

The DOD is not a party to any military commission, including petitioner's commission. Rather, it is the principal agency responsible for the administration of military commissions and the lawful resolution of charges leveled against an accused. These roles are mandated by the 2009 MCA, and the Rules for Military Commissions and DOD Regulation for Trial by Military Commission (2011 ed.) promulgated by the Secretary of Defense (Secretary) pursuant to congressional directive in the 2009 MCA. Through its constituent components, the DOD's uniformed and civilian employees have leading and critical roles in military commissions as judges, prosecutors (also known as trial counsel or government counsel), defense attorneys, administrators, and support staff.

The Secretary or the Secretary's designee, the convening authority, convenes a military commission.²⁵ A convening authority designee is a DOD employee who is subject to the Secretary's “oversight and control” and is “removable at will.” Al Bahlul v. United States (Al-Bahlul IV), 967 F.3d 858, 872 (D.C. Cir. 2020). The convening authority, among other things, (i) may refer to a commission for trial the charges and specifications sworn by the government against an accused,²⁶ (ii) details (selects) the members (jurors) of a commission,²⁷ (iii) approves appointment of qualified outside learned counsel,²⁸ (iv) reviews and may “modify the findings and sentence [in his or her] sole discretion and prerogative,”²⁹ (v) “may ․ dismiss any charge or specification,”³⁰ (vi) “may ․ approve, disapprove, commute, or suspend the sentence in whole or in part,”³¹ (vii) “approve[s] or disapprove[s]” pretrial (plea) agreements,³² (viii) administratively manages certain commission functions,³³ and (ix) refers convictions “as approved by the convening authority” to this court for review.³⁴

Military and civilian lawyers are assigned to military commission cases as government counsel and defense counsel.³⁵ They are responsible for prosecuting and defending military commission cases in the trial and appellate courts.³⁶ Counsel primarily are commissioned officers (judge advocates) serving in The Judge Advocate General's Corps (JAG Corps) of the various military service branches. See, e.g., App. 227. The process for appointing military counsel to a specific military commission case involves two steps. First, Article 6(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806(a), directs that “[t]he assignment for duty of judge advocates” within their respective organizations “shall be made upon the recommendation” of the TJAG of the individual's service branch.³⁷ This appointment process applies to those judge advocates (military lawyers) who are assigned to the military commissions’ trial counsel pool or defense counsel pool.³⁸ Second, the Military Commission Chief Prosecutor and Chief Defense Counsel select and detail military lawyers from these pools, respectively, to serve on a specific military commission trial, as needed.³⁹

Government counsel may include civilians employed by the DOJ.⁴⁰ See Al-Nashiri III, 921 F.3d at 236 (describing DOJ attorney's role in petitioner's prosecution and in commissions generally). The Chief Prosecutor also may detail as government counsel qualified civilian attorneys working in other governmental agencies with approval of the head of that attorney's employing agency.⁴¹ Defense counsel may include, among others, civilian lawyers (i) in private practice retained by the DOD and (ii) employed by the DOD and assigned to the Military Commissions Defense Organization.⁴² See Al-Nashiri III, 921 F.3d at 228 (stating defense team included civilian learned counsel and civilian DOD attorneys); United States v. Al-Nashiri, 374 F. Supp. 3d 1190, 1218 (CMCR 2018) (stating learned counsel was “contractually appointed”). By rule, trial and defense counsel are deemed parties to a commission.⁴³

The judges who preside over military commission cases are judge advocates who are military judges in their respective service trial judiciaries.⁴⁴ They are certified for duty as a military commission judge by their service TJAGs pursuant to rules and the Regulation for Trial by Military Commission promulgated by the Secretary.⁴⁵ Like the two-step detailing process for trial and defense counsel, each service TJAG first provides a pool of military judges to serve as military commission judges.⁴⁶ With their nomination by the TJAG, these military judges become members of the Military Commissions Trial Judiciary pool.⁴⁷ The Chief Trial Judge for Military Commissions then selects and details from that pool a judge to serve as a military commission judge on a specific military commission trial.⁴⁸ Judge Acosta testified on how military commission judges are selected:

The way that works is the chief trial judge of the commissions requests nominees to serve on the commissions from the chief trial judges [of the military services] based on the criteria and the statute. The list is provided to the Trial Judiciary of the Military Commissions.

Those individuals[, the nominated military judges,] are then later, as needed, ․ signed off on to be put on the commissions, but not everybody's serving on a case. And they are detailed [to a specific military commission case] by myself as chief trial judge of the commissions as necessary.

Suppl. App. 37; see App. 225; Pet'r’s App. 300. See generally 10 U.S.C. § 948j (concerning military commission judges).

The order of Judge Acosta, as the Military Commission Chief Trial Judge, detailing Colonel Matthew N. McCall, United States Air Force, as a commission judge to a specific case is typical. It reads, in relevant part:

1. In accordance with Rule for Military Commissions (R.M.C.) 503(b)(l) and R.M.C. 505(e)(l) of the 2019 Manual for Military Commissions, and your nomination by the Judge Advocate General of the Air Force on 19 August 2021 to serve as a military commissions judge, you are hereby detailed as the military judge, effective this date to UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD ․

2. The detailing decision was made solely by me in my capacity as Chief Trial Judge of the Military Commissions.

3Pet'r’s App. 300; see also App. 225.

The judges of this court, which hears appeals from the military commissions, 10 U.S.C. § 950f(a), are appointed in two ways. First, military appellate judges on a service court of criminal appeals may be assigned by the Secretary upon nomination by their respective Judge Advocates General. 10 U.S.C. § 950f(b)(2). Since In re Khadr (Khadr II), 823 F.3d 92 (D.C. Cir. 2016), the military judges also are nominated by the President and confirmed by the Senate. See Ortiz v. United States, 585 U.S. 427, 449–50 (2018). Second, “[t]he President may appoint, by and with the advice and consent of the Senate, additional judges” who are civilians.⁴⁹ 10 U.S.C. § 950f(b)(3), cited in Al-Nashiri I, 791 F.3d at 74–75.

By statute and rule, the judges of this court and the commissions, and counsel thereof, are protected from any attempt to unlawfully influence their actions.⁵⁰ 10 U.S.C. § 949b; R.M.C. 104.

The Secretary of Defense has authority to “cause charges, whether or not referred, to be transmitted to [him or her] for further consideration, including, if appropriate, referral” to a military commission. R.M.C. 601(f); see 10 U.S.C. § 949a. Significantly, the Secretary also has the authority to “suspend the execution of any sentence or part thereof in [a] case, except a sentence of death.” 10 U.S.C. § 950i(d); R.M.C. 1108(b) (stating similar); see Al-Bahlul IV, 967 F.3d at 872 (discussing scope of Secretary's authority over convening authority).

This is an overview of the roles in military commissions served by the DOD, its Secretary, and employees within the DOD (uniformed servicemembers, civil service civilians, and/or retained civilians). It sufficiently makes the point that the Secretary of Defense and uniformed and civilian employees within the DOD are involved in all facets of every commission case starting with the investigation and continuing from the date charges are sworn against an accused through post-conviction appeal and clemency.⁵¹ This involvement includes USAF officers serving as prosecutor and defense counsel in petitioner's case.⁵² We also take judicial notice under Military Commission Rule of Evidence 201A, MMC, that under the UCMJ, courts-martial are conducted by the services in a substantially similar fashion, primarily by uniformed members of the various services.⁵³

D. The Air Force and military commissions

The Air Force interacts with the military commissions through the USAF JAG Corps. As discussed supra Part II.C, pursuant to statutes, and the rules and Regulation for Trial by Military Commission established by the Secretary of Defense, USAF judge advocates are detailed to serve as judges and lawyers in the military commissions and to serve as judges on this court. The Air Force—as an armed force and as a military department—has no role in the military commissions apart from this USAF staffing function.

The USAF TJAG “serves as the Legal Advis[or] to the Secretary of the Air Force, ․ and all officers and agencies of the Department of the Air Force. He directs all judge advocates in the performance of their duties and is responsible for [their] professional oversight ․”⁵⁴ The TJAG has the same role regarding the Air Force Trial Judiciary. See Pet'r’s App. 199. Like everyone else in the United States Air Force, the TJAG is a subordinate of the Secretary of the Air Force and the DOD Secretary. Like the other service TJAGs, the USAF TJAG is essentially a judicial officer in that his or her responsibilities include ensuring that the rights of an accused are protected. Also like the other TJAGs, the USAF TJAG

is the linchpin that holds the system together and, most important, the key to its integrity. Congress, as well as the Secretary in the exercise of his statutory authority, has bestowed considerable trust and confidence in [The Judge Advocate General] to ensure that the system works as designed: fairly, effectively, and in accordance with the law. It has conferred upon him judicial or quasi-judicial responsibilities in the court-martial arena that require him to stand apart from either party to the case. United States v. Monett, 16 C.M.A. 179, 180 n.1, 36 C.M.R. 335, 336 n.1 (1966). Even in the exercise of his administrative functions, he must be fair and evenhanded or the overall system of justice in the ․ Service -- for which he bears considerable responsibility -- will suffer.

United States v. Mitchell, 37 M.J. 903, 909–10 (N.M.C.M.R. 1993) (en banc), aff'd, 39 M.J. 131 (C.M.A. 1994). This mandate extends to the USAF TJAG's three responsibilities regarding the military commissions.

First, the TJAG makes available USAF judge advocates to fill various military commission billets (assignments) as prosecutors and defense lawyers.⁵⁵ See Art. 6(a), UCMJ; Appellate Tr. 37–38 (discussing TJAG nomination process for counsel). The TJAG also nominates military judges to serve as commission judges,⁵⁶ and as appellate judges on this court.⁵⁷ Second, the TJAG certifies that these judge advocates are qualified for duties as counsel or judges.⁵⁸ Third, the TJAG consults with the Secretary if a military judge on this court “voluntarily requests to be reassigned to other duties,” “is reassigned to other duties by the Secretary of Defense ․ based on military necessity,” or “is withdrawn by the Secretary of Defense ․ for good cause.”⁵⁹ The other service TJAGs have the same three responsibilities regarding the provision of judge advocates for work in the commissions as counsel, commission judges, and appellate judges on this court.

From our review of the record, the relevant statutes, rules, the Regulation for Trial by Military Commission, and oral argument before this court on July 24, 2023, Appellate Tr. 9–12, 37, we do not see any further role that the USAF TJAG or any other TJAG has with respect to the military commissions.⁶⁰ Further, they have no role in assigning (detailing) any military judge or lawyer to any case within the military commissions. That role is served by the Chief Trial Judge, the Chief Prosecutor, and the Chief Defense Counsel of the military commissions.

The Air Force Trial Judiciary Chief Trial Judge is consulted regarding the TJAG's nomination of USAF military judges for commission billets. The Chief Trial Judge submits a list of qualified military judges that the TJAG uses to nominate individuals for the pool of military commission judges. Appellate Tr. 24. This is the Chief Trial Judge's only role concerning military commissions. Nothing more was offered in response to our questions during oral argument on July 24, 2023. See id. at 13–14, 23–24.

Commission military judges are drawn from, and typically have continuing judicial duties within, the trial judiciaries of their respective services. Dep't of Def. Reg. for Trial by Mil. Comm., ¶ 25-2.a, 2.c. (2011 ed.). Thus, clerks for those trial judiciaries may interact with judges who are detailed to both courts-martial and military commissions. Presently, there are six active military commission cases (including petitioner's case) involving ten accuseds who are pending trial and/or sentencing.⁶¹

Judge Acosta's prospective new job is to serve as the Clerk of Court for the Air Force Trial Judiciary—that is, the clerk of the directorate providing judicial support for courts-martial being held for military personnel accused of violating the UCMJ.⁶² According to the job posting for Clerk, “[t]he primary purpose of this position is to ․ provid[e] highly specialized consultation and advice to military judges regarding procedural, evidentiary and sentencing issues as they arise prior to and during courts-martial and administrative hearings.” App. 343.

From the record, we draw several factual conclusions. First, the Air Force is the Clerk's employer. Second, the public reasonably may consider the DOD as the Clerk's employer. Third, neither the DOD nor its Secretary has any involvement, directly or indirectly, in the hiring or supervision of the Clerk. Fourth, neither the DOD nor its Secretary has any interest or partisan involvement in the outcome of Al-Nashiri's commission, or any other military commission. Fifth, neither the Air Force nor the USAF, including its TJAG and the Trial Judiciary Chief Trial Judge, has any interest or involvement in the outcome of Al-Nashiri's commission, or any other military commission. This finding regarding the TJAG's role is reinforced by the Supreme Court's observation that “Judge Advocates General ․ have no interest in the outcome of a particular court-martial.” Weiss v. United States, 510 U.S. 163, 180 (1994). Sixth, the USAF TJAG's role is limited to (i) making available, with the assistance of the Air Force Trial Judiciary Chief Trial Judge, qualified military judges and lawyers to serve in military commission billets, and (ii) fulfilling an obligation to consult with the Secretary on the reassignment, or withdrawal for good cause, of the military judges on this court. Seventh, the Air Force Trial Judiciary Chief Trial Judge is the hiring official and supervisory authority for the Clerk position. Eighth, the person in the Clerk position has no interest or involvement in Al-Nashiri's commission, or any other military commission.

In this context, we review Al-Nashiri's claim that the military judge presiding over his commission should be disqualified for the appearance of bias that allegedly arose from the judge's application for and/or acceptance of a civilian job with the Air Force Trial Judiciary that was to commence after his Army retirement. In our assessment, we must keep in mind that Rule for Military Commission 902(a) “requires a [military] judge to ‘disqualify himself in any proceeding in which his impartiality might reasonably be questioned,’ ” Liteky v. United States, 510 U.S. 540, 541 (1994) (emphasis added) (quoting 28 U.S.C. § 455(a)), by “a fully informed third-party observer who ‘understand[s] all the relevant facts’ and has ‘examined the record and the law,’ ” Cordova, 806 F.3d at 1092 (alteration in original) (quoting Holland, 519 F.3d at 914).

E. Disqualification analysis

In Al-Nashiri III, the Court of Appeals held that a military judge who was presiding over Al-Nashiri's commission was disqualified after he applied to be an immigration judge at the Department of Justice. The Court's analysis focused on whether the prospective employer of the applicant judge also was a party to Al-Nashiri's commission. The D.C. Circuit first held that “the Attorney General himself is directly involved in selecting and supervising immigration judges” and, therefore, was the employer. 921 F.3d at 235. Then, it held that the Attorney General was a “party” to Al-Nashiri's commission because the Attorney General supported commission prosecutions in three significant ways: (i) a DOJ lawyer was detailed to serve as second-seat for the prosecution in Al-Nashiri's case, (ii) DOJ lawyers would represent the United States before Article III appellate courts unless the Attorney General designated other government counsel, id. at 236, and (iii) “ ‘the Secretary of Defense, in consultation with the Attorney General,’ ․ establishe[s] rules for ‘trials by military commission,’ ” which depart from court-martial procedures, id. (quoting 10 U.S.C. § 949a). In other words, the Attorney General had a partisan involvement in petitioner's commission and a discernible interest in the outcome, including representing the government in any appeal.

In a subsequent case, the D.C. Circuit commented on Al-Nashiri III stating:

[T]he Attorney General was an immigration judge's employer because he was “directly involved in selecting and supervising immigration judges.” [Al-Nashiri III, 921 F.3d] at 235. In reaching that conclusion, we distinguished the Attorney General's direct role in appointing immigration judges from, for instance, the hiring process for administrative law judges, “who are hired through a selection process administered by the Office of Personnel Management.” Id.

Al-Tamir, 993 F.3d at 916. The D.C. Circuit concluded that the military judges in Al-Nashiri III and Al-Tamir were seeking employment as immigration judges from a party to the case over which they were presiding. Al-Nashiri III, 921 F.3d at 236–37; see Al-Tamir, 993 F.3d at 911. These circumstances disqualified the two judges. Al-Nashiri III, 921 F.3d at 237; see Al-Tamir, 993 F.3d at 911.

The facts before us are different. Before turning to those differences, we explain why the “party” and “employer” formulation is not as straightforward as petitioner argues. We also disagree with the government's views on this issue.

Al-Nashiri argues that the DOD is both a party to his commission and the military judge's future employer—hence, a disqualifying appearance of bias. Pet'r’s Amend. Br. 14–15, Pet'r’s Reply 12–13. This does not capture, however, what Al-Nashiri III actually held. While the Court found that the Attorney General was a party to Al-Nashiri's commission, that principally was based upon the actual and apparent roles that he and his Department play supporting the prosecution, see 921 F.3d at 236–37, and not the traditional understanding of what it means to be a party in a case. Additionally, in finding that the Attorney General was an employer, the Court said: “although the Justice Department is a complex institution with many offices performing many different functions, it is enough to decide this case to know that the Attorney General himself is directly involved in selecting and supervising immigration judges.” Al-Nashiri III, 921 F.3d at 235.

We think there is a simpler and clearer analytical framework resulting from the holding in Al-Nashiri III. The hazards to avoid are perceptions that the applicant might (i) use his or her judicial decisions to enhance the opportunity to be hired and (ii) gain financial benefits from a person or entity who has a discernible interest or partisan involvement in the outcome of a commission. Id. Those two hazards undermine “confidence” in a judicial officer. Id. at 234 (quoting Microsoft, 253 F.3d at 115). Disqualification, therefore, is required (i) when a person or office (the employer) has actual or effective authority over the applicant judge's potential hiring and/or supervision over the applicant once employed, and (ii) the employer has a discernible interest and/or partisan involvement in the outcome of the case at issue, or, depending on the facts, in military commission cases in general.⁶³ If either such authority or interest/involvement is absent, then disqualification is not required.

In deciding whether a disqualifying perception exists, we must closely examine the facts in the manner required by the controlling case law to ensure the proper discharge of the mandate in Rule for Military Commission 902(a): “to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible,” Liljeberg, 486 U.S. at 865, and to secure that “justice [will] satisfy the appearance of justice,” id. at 864 (citation omitted).

We first consider the DOD as the Clerk's employer but, as explained, this is not based on petitioner's conclusory contention.⁶⁴ Regarding the government's argument, we disagree that the Air Force Trial Judiciary is the Clerk's employer. The Trial Judiciary is the office within the USAF in which the Clerk works.

As noted, the Attorney General's role involving military commissions is principally intertwined with the prosecution of an accused and, thus, there exists a discernible interest and partisan involvement, which includes advocating the government's interests in the appellate courts. See Al-Nashiri III, 921 F.3d at 236. In contrast, the DOD and its Secretary have a greater and more substantive role in the commissions. Their responsibilities touch all facets of every commission case from start to finish, including providing institutional support for petitioner's defense from beginning to end. The DOD and its Secretary, however, have no interest or partisan involvement in the outcome of Al-Nashiri's commission, or any other commission. Instead, their interest is in the administration of all military commissions and in the lawful resolution of any charge made against an accused.

Accordingly, contrary to petitioner's position, neither the DOD nor its Secretary is a party to petitioner's commission—either de jure, or de facto as described in Al-Nashiri III, 921 F.3d at 236.⁶⁵ Further, the Clerk is not hired or supervised by the Secretary, nor does the Clerk work for the Secretary.

Next, we look at whether disqualification is required because the Air Force, as the Clerk's employer or the hiring and supervising authority for the Clerk position, has a discernible interest or partisan involvement in the outcome of petitioner's commission. See id.

The interaction between the Air Force and the military commissions is through the USAF JAG Corps. Specifically, the USAF TJAG nominates judge advocates whom others will detail to serve in various commission roles. In accordance with the 2009 MCA, related rules, and the Regulation for Trial by Military Commission, judge advocates and civilian lawyers employed within the DOD collectively serve as prosecutors, defense lawyers, and judges in all commission cases, including appeals.⁶⁶ USAF judge advocates serve as the government's trial counsel and as defense counsel in petitioner's commission. Providing officers for these roles does not make the Air Force or the USAF a party to petitioner's commission, or any other commission. The USAF TJAG and the Chief Trial Judge also are not parties to petitioner's case. They are unconcerned with the prosecution or defense of his commission. They have no role in the proceedings. They have no interest in the outcome of petitioner's case. This renders hollow the risk that an applicant “judge may be tempted to use favorable judicial decisions [in a military commission] to improve his employment prospects—to get an application noticed, to secure an interview, and ultimately to receive an offer.” Al-Nashiri III, 921 F.3d at 235.

Finally, the Clerk position is a civil service job in the Air Force Trial Judiciary mainly handling administrative matters involving courts-martial. App. 343. The Clerk is hired and supervised by the Chief Trial Judge for the Air Force Trial Judiciary, who reports to the USAF TJAG. The Air Force Trial Judiciary, the office in which the Clerk position sits, has nothing to do with petitioner's commission, or any other commission. The Clerk's position—past, present, and future—also has nothing to do with petitioner's commission, or any other military commission.

We conclude, “based on the totality of the circumstances” in petitioner's case, Al-Nashiri III, 921 F.3d at 235, that “a reasonable and informed observer” knowing the facts, and having examined the record and law, “would [not] question the [military] judge's impartiality.” Microsoft, 253 F.3d at 114. Simply put, a commission military judge who seeks a civil servant position within the DOD having nothing to do with the military commissions does not create an appearance of bias. Reduced to its essence, Judge Acosta was moving from one judicial job within the DOD to another judicial-related job within the DOD.⁶⁷

We reach these conclusions primarily because of the unique role that the DOD, the Air Force, and their employees have in the military justice system, which includes military commissions. All essential roles in this system are performed by uniformed service members and civilians employed within the DOD: the convening authority, prosecutor, defense attorney, military judge, and military appellate judge.⁶⁸ If the facts before us raise a disqualifying appearance of bias, we see no reason why the controlling principle would not extend to courts-martial because all significant participants in courts-martial also are employed within the DOD. This, in turn, would call into question the entire military system of justice which, in its modern form, dates to the UCMJ enacted in 1950, Act of May 5, 1950, Pub. L. No. 81-506, 64 Stat. 107, and substantially revised by the Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335; the Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393; and the Military Justice Act of 2016, Pub. L. No. 114-328, § 5001, 130 Stat. 2000. See Al-Bihani v. Obama, 619 F.3d 1, 29 (D.C. Cir. 2010) (mem.) (Kavanaugh, J., concurring in the denial of rehearing en banc) (discussing UCMJ's history). This outcome cannot be what Congress intended.

When the record is examined, there is no similarity between the relevant facts in Al-Nashiri III and those before us regarding the party/employer framework. Petitioner seemingly attempts to circumvent this by arguing that the military judge is a “suppliant” in seeking civilian DOD employment, Pet'r’s Amend. Br. 13–14, which is promised to no one.⁶⁹ Petitioner does not explain, however, why the hiring official might be swayed by the military judge's judicial actions. Nor does he reveal what interest the hiring official and/or the Air Force Trial Judiciary have in petitioner's commission, or any other commission.

“The challenge [the applicant judge] faced” in Al-Nashiri III “was to treat the Justice Department with neutral disinterest in his courtroom” when the Attorney General had a discernible interest in the outcome of proceedings, “while [also] communicating significant personal interest in his [DOJ] job application.” Al-Nashiri III, 921 F.3d at 236. If the argument simply is one of optics, it fails because we find that no “reasonable and informed observer would question [Judge Acosta's] impartiality” on the facts before us. Microsoft, 253 F.3d at 114.

The suppliant argument also fails for other reasons. In the context of what concerns us, the military judge's application for the Clerk position is no different than a military officer's request or “dream sheet” for the next active duty assignment. Under petitioner's suppliant construct, all military officers, including military judges, are “suppliants” when requesting to move from one billet to the next. Petitioner apparently attempts to avoid this plain observation by arguing that “the Army has no discretion about paying Colonel Acosta while he remains in uniform,” but the Air Force has discretion in deciding whether to hire him as a civilian DOD employee. Def. Reply to Opp. to Stay 9 (June 14, 2023). Both, of course, are true.

The military services, however, have no obligation to grant an officer's request for the next assignment. Further, while petitioner may be correct in saying that the Army has no discretion on whether to pay Colonel Acosta, it has significant discretion in decisions that directly affect his pay. Future assignments are critical to future rank promotions, and each increase in rank yields more military pay, greater entitlements (such as housing and moving allowances), and increased potential retirement pay.⁷⁰ These observations aside, petitioner's logic underlying his suppliant argument ultimately fails because the DOD, as employer, is not a party to any commission and has no interest or partisan involvement in the outcome of petitioner's commission.

F. Other case authority and Bergdahl v. United States

Other cases that have considered disqualification motions involving military judges applying for new government jobs support our conclusion. While that case law is not substantial, the reasoning is persuasive. We think United States v. Armendariz identifies the core issue: “when the military judge is seeking future employment with a government office with oversight over the prosecutors in the case before him,” that is a basis for disqualification. 82 M.J. 712, 725 (N-M. Ct. Crim. App. 2022). Conversely, an effort to disqualify a court-martial judge who applied to be a DOJ immigration judge failed because, among other reasons, the DOJ had “no discernable interest in the outcome” of the court-martial. United States v. Wilson, No. ACM 39387, 2021 CCA LEXIS 284, at *39 (A.F. Ct. Crim. App. June 10, 2021) (unpub. op.); United States v. Snyder, No. ACM 39470, 2020 CCA LEXIS 117, at *60 (A.F. Ct. Crim. App. Apr. 15, 2020) (unpub. op.) (stating DOJ had no “identifiable interest” in court-martial result). The point being, disqualification in those cases turned on whether the potential employer had an interest in the prosecution of the court-martial over which the applicant judge was or had been presiding. In petitioner's case, the DOD and the Air Force Trial Judiciary have no interest or partisan involvement in any military commission.

Petitioner argues that Bergdahl v. United States, Civil No. 21-418, 2023 U.S. Dist. LEXIS 127510, ––– F. Supp. 3d –––– (D.D.C. July 25, 2023), supports his position. We disagree. Bergdahl was charged in a court-martial with, and pleaded guilty to, serious charges related to “deserting his unit with intent to shirk hazardous duty” and “engaging in misbehavior before the enemy.” United States v. Bergdahl (Bergdahl II), 80 M.J. 230, 244 (C.A.A.F. 2020), quoted in 2023 U.S. Dist. LEXIS 127510, at *35. Donald Trump, during his 2016 candidacy for President, “repeatedly vilified” Bergdahl, 2023 U.S. Dist. LEXIS 127510, at *9 (citation omitted), and “explicitly stated” that he “would be convicted and receive the death penalty,” id. at *91. The parties agreed that Mr. Trump ratified his comments after he became President. Id. at *52; see Bergdahl II, 80 M.J. at 238.

Bergdahl's sentence was upheld on appeal by the United States Court of Appeals for the Armed Forces. Bergdahl II, 80 M.J. at 244. Bergdahl then filed a petition for a writ of error coram nobis with the United States Army Court of Criminal Appeals for dismissal with prejudice. Among the arguments advanced in that petition was that Bergdahl “did not receive a fair trial” because the military judge ruled adversely on his claims of unlawful command influence and failed to disclose to the parties, during the court-martial, his application to be an immigration judge with the DOJ. United States v. Bergdahl (Bergdahl IV), No. 20200588, 2020 CCA LEXIS 443, at *1–2 (Army Ct. Crim. App. Dec. 11, 2020) (not for publication). The writ was denied. Bergdahl v. United States (Bergdahl V), 81 M.J. 128 (C.A.A.F. 2021) (mem.).

In Bergdahl's civil action for declaratory and injunctive relief subsequently filed in federal district court, the case upon which petitioner relies, Bergdahl challenged his court-martial conviction for (i) unlawful command influence and (ii) the military judge's failure to disclose his immigration judge application. Bergdahl, 2023 U.S. Dist. LEXIS 127510, at *1, *31–32. In addressing unlawful command influence, the district judge distinguished Snyder and Wilson. Id. at *89 n.17. Those cases held there was no appearance of bias in the immigration judge job application submitted by the military judge because the Attorney General and the DOJ had no interest in Snyder's and Wilson's courts-martial, or in courts-martial conducted by the DOD generally. Snyder, 2020 CCA LEXIS 117, at *60, *62; Wilson, 2021 CCA LEXIS 284, at *39–40; see supra note 5 (discussing Judge Spath's DOJ application). The key facts upon which the district court relied in Bergdahl's civil case involved the President making direct and pointed comments about how he wanted Bergdahl to be held accountable and the fact that the President has superior authority over the Attorney General.

The district court said:

[A]lthough the Department of Justice was not one of the parties in the plaintiff's court-martial proceedings, this case is unique in that the head of the executive branch during part of the plaintiff's court-martial proceedings—former President Trump—and thus the ultimate authority over the agency that would determine the military judge's appointment as an immigration judge, expressed during his candidacy and subsequently ratified after his election explicit condemnations of the plaintiff, reflecting his “discernible interest in the outcome[,]” United States v. Wilson, 2021 CCA LEXIS 284, [at *39] (A.F. Ct. Crim. App. June 10, 2021), of the plaintiff's case. Thus, former President Trump—and, arguably, the executive branch by extension—had explicitly stated an interest in a particular outcome in the plaintiff's case, i.e., that the plaintiff would be convicted and receive the death penalty. Furthermore, Trump's statements formed the basis for the plaintiff's second and third motions to dismiss based upon unlawful command influence. Therefore, even though the Department of Justice was not directly involved in the plaintiff's case as a party, Trump's statements were integral to the potential success of the plaintiff's defense, see Pl.’s Facts ¶¶ 100, 104 (indicating that former President Trump's remarks formed the basis for two of the plaintiff's motions to dismiss); Def.’s Resp. to Pl.’s Facts ¶¶ 100, 104, and specifically referenced the former president's desire that the plaintiff be convicted and how he should be punished. Thus, the Court concludes that, based upon the military judge's job application to an executive branch position—a situation in which he might reasonably be expected to appeal to the president's expressed interest in the plaintiff's conviction and punishment—“it would appear to a reasonable person[,]” Liljeberg, 486 U.S. at 860, “knowing all the circumstances,” id. at 861 (internal quotation marks omitted), “that [the judge]’s impartiality was in jeopardy[,]” Al-Nashiri [III], 921 F.3d at 235.

Bergdahl, 2023 U.S. Dist. LEXIS 127510, at *89–92 (first, third, and last alterations added; footnote and some citations omitted). The district court held that the military judge “should have disclosed his job application as a potential ground for his disqualification” for an appearance of partiality and the Army Court of Criminal Appeals therefore improperly denied Bergdahl's coram nobis writ. Id. at *94.

Petitioner argues that Bergdahl stands for the proposition that “military judges are prohibited from seeking employment with the executive branch while simultaneously presiding over a case being prosecuted (and convened and defended) by the executive branch—whether that case is being tried before a court-martial or a military commission.” Pet'r’s Mot. to File Suppl. Auth. 2 (July 27, 2023). We differ with petitioner's view. The district court made clear that the circumstances in Bergdahl were “unique,” 2023 U.S. Dist. LEXIS 127510, at *89–92, and that “arguably, the executive branch by extension” had taken an interest in the court-martial's outcome, id. at *91. The holding in Bergdahl is thus constrained by its particular facts, and by no means can it be read as broadly as petitioner argues. The case has no bearing on the facts and circumstances before us in petitioner's case.

Petitioner next postulates that the Clerk could directly or indirectly influence or attempt to influence military commissions: “As Clerk of Court of the Air Force Trial Judiciary, there is a very real possibility that Judge Acosta will continue to interact with military commissions, either via policy or providing advi[c]e to military judges.” Pet'r’s Amend. Br. 16; see also Pet'r’s Reply 7 (raising potential influence and retaliation scenarios). Petitioner provides no concrete examples of this happening in the past or facts showing that his claim is more than speculation. See In re Ali, 558 F. Supp. 3d 1167, 1177 (CMCR 2021) (stating “some evidence” more than speculation is required in unlawful influence case (quoting United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002))); Al-Iraqi v. United States, 455 F. Supp. 3d 1273, 1319–20 (CMCR 2020) (citing cases involving speculative claims). Petitioner does not tell us to whom within the Trial Judiciary or the USAF JAG Corps the Clerk would offer policy advice concerning the commissions, or who would seek the Clerk's advice. A demand for recusal or disqualification cannot rest on speculation.⁷¹ Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154, 1164 (D.C. Cir. 1995); In re Kaminski, 960 F.2d 1062, 1065 n.3 (D.C. Cir. 1992) (per curiam) (stating recusal not required for “unsupported or tenuous allegations”).

Putting aside discussions with a commission judge on a matter before that judge, it is unclear what would be improper for a now-retired Judge Acosta to discuss with a commission judge. Petitioner does not address this.

Petitioner also does not dispute Judge Acosta's clear statement on the record that whoever succeeds him has total responsibility for petitioner's commission and that he has no further role after retirement. See Suppl. App. 71–72. We see no reason not to take Judge Acosta at his word. See Withrow, 421 U.S. at 47 (There is “a presumption of honesty and integrity in those serving as adjudicators.”); cf. Mitchell, 39 M.J. at 145 (“In the absence of some evidence to the contrary, we must presume not only that the Judge Advocate General and his assistant know the law but also that they follow it.”).

We also doubt that a potential abuse of the Clerk's position to influence an ongoing commission has any place in determining whether the military judge presiding over that commission was automatically disqualified, at least not on the facts before us. We further note that if a now-retired military judge serving as the Clerk were to improperly interfere with a commission, he would expose himself to discipline as a federal civilian employee,⁷² or potentially as an officer recalled to active duty, see 10 U.S.C. § 802(a)(4),⁷³ and also to potential licensure discipline, see Mitchell, 39 M.J. at 135–36, 144 (stating that rulings made to curry favor with their performance rater would expose judges to UCMJ liability and ethical violations). We do not presume that such misconduct may occur when there are no demonstrable facts that this type of misconduct has been invited or suggested, or has occurred in the past.

III. CONCLUSION

The holding in Al-Nashiri III and facts before us do not support the petition for disqualification of Judge Acosta. Unlike Al-Nashiri III, the application to serve as the Clerk of Court for the Air Force Trial Judiciary does not “cast an intolerable cloud of partiality over [the military judge's] subsequent judicial conduct.” 921 F.3d at 237. “[A] reasonable and informed observer would [not] question the judge's impartiality.” Microsoft, 253 F.3d at 114. Petitioner, therefore, has failed to demonstrate that he has a clear and indisputable right to the writ. Cheney, 542 U.S. at 381; see also Al-Nashiri III, 921 F.3d at 233. As such, he has not carried his heavy burden of establishing entitlement to a writ of mandamus disqualifying the military judge.

The petition is denied.

FOOTNOTES

1.   The petition was filed on June 5, 2023, and amended on June 9, 2023.

2.   In the United States Court of Appeals for the District of Columbia Circuit (D.C. Cir.), Al-Nashiri filed a petition for a writ of mandamus and prohibition that mirrored the amended petition before this court. Pet. for Writ of Mand. & Prohib., In re Al-Nashiri, 2023 U.S. App. LEXIS 18717 (D.C. Cir. July 21, 2023) (No. 23-1159) (per curiam order). He also filed with the D.C. Circuit a motion for abeyance of his mandamus petition before that court. Id. The D.C. Circuit granted the abeyance motion pending our disposition of the petition before us. Al-Nashiri filed two other petitions in our court during February 2023 seeking writs of mandamus and prohibition. One sought disqualification. The other addressed an evidentiary issue. We denied both. See our opinion in In re Al-Nashiri, No. 23-002 (CMCR Oct. 4, 2023), and our order in In re Al-Nashiri, No. 23-001 (CMCR Oct. 6, 2023).

3.   Petitioner sought a stay of the pre-trial sessions (hearings) scheduled in his case for June 12 through July 1, 2023, and August 21 through September 15, 2023. Pet'r’s Amend. Applic. for Stay 10, 23–27 (June 9, 2023). We entered a limited administrative stay to permit further establishment of the record while we considered the stay motion, but ultimately denied the motion. See Orders (CMCR June 7, 9, and 22, 2023). The D.C. Circuit denied a similar stay request. In re Al-Nashiri, 2023 U.S. App. LEXIS 18717.

4.   Petitioner contends that the Air Force's Trial Judiciary, Judge Advocate General's (JAG) Corps, and The Judge Advocate General (TJAG) are parties to, or participants in, his commission. Pet'r’s Amend. Br. 15–16 (June 9, 2023). While we address this below, see infra note 67, we note here that petitioner argues the Department of Defense (DOD) “is a party to [his] military commission” and “[w]hen Judge Acosta applied for employment as the Clerk of Court for the Air Force Trial Judiciary, he [thus] created a disqualifying appearance of partiality that required recusal.” Pet'r’s Amend. Br. 25 (citing In re Al-Nashiri (Al-Nashiri III), 921 F.3d 224, 237 (D.C. Cir. 2019)).

5.   Al-Nashiri III involved a military judge, now-retired Colonel Vance Spath, who was presiding over Al-Nashiri's commission while seeking employment as an immigration judge within the Department of Justice (DOJ). 921 F.3d at 227. Colonel Spath used his work as a commission judge to bolster his application. Id. at 237. He did not disclose to the parties his job search and negotiations for post-retirement employment. Id. Rather, he made statements about his future retirement that were economical with the truth. See id.

6.   Respondent's (the government's) appendix (June 12, 2023) and supplemental appendix (June 17, 2023) are cited as “App.” and “Suppl. App.” Petitioner's appendix (June 9, 2023) is cited as “Pet'r’s App.” We do not cite to petitioner's supplemental appendix (June 14, 2023). These four appendices, respondent's second supplemental appendix (July 21, 2023), and petitioner's second supplemental appendix (July 21, 2023) collectively constitute the record before us.

7.   Liljeberg addressed 10 U.S.C. § 455(a), the disqualification statute upon which Rule for Military Commissions (R.M.C.) 902(a), Manual for Military Commission, United States (2019 ed.), is ultimately based. See infra Part II.B.

8.   The referred charges against petitioner are as follows: Charge I, using treachery or perfidy; II, murder in violation of the law of war; III, attempted murder in violation of the law of war; IV, terrorism; V, conspiracy to commit terrorism and murder in violation of the law of war; VI, intentionally causing serious bodily injury; VII, attacking civilians; VIII, attacking civilian objects; and IX, hijacking or hazarding a vessel or aircraft, in violation of 10 U.S.C. §§ 950t(17), (15), (28), (24), (29), (13), (2), (3), and (23), respectively. Resp't’s App. 201–12 (June 12, 2023) (App.) (charge sheet).

9.   “Detail” in a military context is an order to an individual to “perform a specific temporary duty.” R.M.C. 103(a)(13).

10.   The commission ruling on the defense motion to disqualify is mislabeled as Appellate Exhibit 548D in portions of the record. See, e.g., App. 192. That ruling, however, is Appellate Exhibit 548F. Suppl. App. 28; see also id. at 1.

11.   In his petition, Al-Nashiri changed the effective date for the requested relief to January 6, 2023, from the April 18 date in his motion. He argued that “[m]ere outreach” about new employment “may be enough to compel disclosure and recusal” unless discovery showed otherwise. Pet'r’s Amend. Br. 2 n.2; id. at 17 & n.97. There is, however, no evidence in the record before us that Judge Acosta took any action concerning the Clerk's position before April 18, 2023.

12.   A full description of the Clerk's duties is in the job announcement. App. 345.

13.   During the June 2023 voir dire, the military judge referenced “the Hadi litigation” and apparently our decision in Al-Iraqi v. United States, 455 F. Supp. 3d 1273, 1315 n.44 (CMCR 2020) (declining to consider if a DOD job application was disqualifying). Suppl. App. 32–33.

14.   The record before us includes fifty-five transcript pages of voir dire testimony from Judge Acosta. App. 438–40 (on Apr. 20, 2023), 445–50 (on Apr. 21, 2023); Suppl. App. 29–74 (on June 12, 2023).

15.   See generally App. 425 (USAF Headquarters memorandum regarding standard operating procedures for hiring civilian attorneys); Suppl. App. 2 (commission ruling identifying key persons for hiring Clerk position).

16.   As Chief Trial Judge of the Military Commission Trial Judiciary, App. 447, 389, Judge Acosta detailed military judges to specific military commission cases, Suppl. App. 37; see infra note 48 and accompanying text. In his June 12, 2023, voir dire, he declined to answer questions on how his successor would be selected and assigned to petitioner's case and what discussions, if any, would be held with the new judge. Suppl. App. 46, 69–72. Judge Acosta found the inquiry irrelevant to the disqualification motion and subject to the judicial or deliberative process privileges. Id. at 69, 71. Given that we deny the petition, there is no need for us to address any issues related to the selection and detailing of Judge Acosta's successor to petitioner's case.

17.   Petitioner makes much of the military judge not immediately informing him that he had accepted the Clerk's position. See Pet'r’s Amend. Br. 18–19. Petitioner does not show how the delayed disclosure of acceptance advances his disqualification argument. His position is that the military judge was disqualified “at the moment [he] submitted his application for the Clerk of Court position.” Id. at 14 (emphasis added); Suppl. App. 58. The day after he submitted his application, Judge Acosta disclosed it to the parties. App. 433, 438. We fail to see the relevance of petitioner's complaint about when Judge Acosta disclosed his acceptance.

18.   During his interview for the Clerk's position, Judge Acosta said that his “first available date” to begin the new job was August 1, 2023. Suppl. App. 41; Pet'r’s App. 110. This was two months before his retirement. See App. 226. He later explained that the potential August 1 start date “was aspirational at the time, depending on how far [he] could get with retirement processing and issuing rulings on this case as necessary.” Suppl. App. 41, 54 (stating similar); see id. at 45–46. Judge Acosta had previously told the parties that he would resolve pending motions before his retirement. Pet'r’s Amend. Br. 18–19; see Suppl. App. 84 (amended scheduling order). In his reply brief, petitioner said “Judge Acosta's interest in becoming a DOD civilian employee ․ may impact his choices on which motions to rule on, as well as how to rule, the speed at which he moves proceedings, determinations on witness testimony, and his interactions with counsel.” Pet'r’s Reply 6 (June 23, 2023). At oral argument, he contended that Judge Acosta “violated ․ clear and indisputable rules of judicial conduct․ [by] allow[ing] his personal interest to influence how he handled and scheduled this capital case.” Appellate Tr. 2 (CMCR July 24, 2023) (oral argument before CMCR). We decline to consider whether this argument requires disqualification for two reasons. First, “an argument first made in a reply brief ordinarily comes too late,” as an “ ‘opportunity to respond’ ” is precluded. Students Against Genocide v. Dep't of State, 257 F.3d 828, 835 (D.C. Cir. 2001) (citation omitted). “No authority need be cited for the rule that, generally, we do not consider an issue first raised at oral argument on appeal.” Arsement v. Spinnaker Expl. Co., LLC, 400 F.3d 238, 247 (5th Cir. 2005); United States v. Cross, 766 F.3d 1, 7 (D.C. Cir. 2013) (stating argument first made at oral argument “comes too late” and is forfeited). Second, petitioner's speculative argument is too thin a reed upon which to find that disqualification was required. See Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154, 1164 (D.C. Cir. 1995) (“There is no foundation for recusal” based on speculation.); In re Kaminski, 960 F.2d 1062, 1065 n.3 (D.C. Cir. 1992) (per curiam) (stating similar); see infra note 71.

19.   Respondent filed with this court a notice of the mandamus petition filed by petitioner in the D.C. Circuit. Resp't’s Not. of Pet. for Mand. & Prohib. Writ (June 21, 2023) (including mandamus petition at Attachment A).

20.   See Al-Nashiri III, 921 F.3d at 234 (stating judicial disqualification is required when “impartiality might reasonably be questioned” (quoting 28 U.S.C. § 455(a); Code of Conduct for United States Judges, Canon 3(C)(1); ABA, Model Code of Judicial Conduct r. 2.11; and R.M.C. 902(a))).

21.   Petitioner argues that the standard for disqualification is “a showing of an appearance of bias ․ sufficient to permit the average citizen reasonably to question a judge's impartiality.” Pet'r’s Amend. Br. 12 (ellipsis in original; emphasis added) (quoting United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981)); Appellate Tr. 3. Both the D.C. Circuit and this court have cited Heldt for its statement of the law. See, e.g., United States v. Bostick, 791 F.3d 127, 155 (D.C. Cir. 2015); Al-Nashiri III, 921 F.3d at 234; United States v. Mohammad, 391 F. Supp. 3d 1066, 1073 (CMCR 2019); In re Al-Nashiri, No. 23-002, 2023 U.S. CMCR LEXIS 1, *33–34 (Apr. 11, 2023). The D.C. Circuit has not addressed the relationship between Microsoft and Heldt with respect to the disqualification standard. Microsoft, however, provides a more fulsome description of the standard. It does not introduce a new and different standard. We also find that nothing in Microsoft contradicts Heldt—rather, it is consistent with Heldt. In any event, were we to find a divergence between the two cases, we would be required to follow Microsoft’s en banc holding. We also note that Microsoft and the cases that follow its formulation are consistent with the military law standard for disqualification. See, for example, United States v. Mitchell, 39 M.J. 131, 143 (C.M.A. 1994), and United States v. Jones, 55 M.J. 317, 319 (C.A.A.F. 2001), which for this court are instructive, but non-binding precedent. 10 U.S.C. § 948b(c).

22.   Press Release, Dep't of Def., https://www.defense.gov/Contact/Help-Center/Article/Article/2742213/department-of-defense-civilian-employment-opportunities/ (last visited Mar. 4, 2024); U.S. Off. of Pers. Mgmt., https://dod.usajobs.gov/ (last visited Mar. 4, 2024) (same).

23.   Am. Law. Media, ALM Law.com Dictionary, https://dictionary.law.com/Default.aspx?selected=1461 (last visited Mar. 4, 2024).

24.   See also R.M.C. 502(d)(6); Dep't of Def. Reg. for Trial by Mil. Comm., ¶ 8-4.a (2011 ed.) [hereinafter RTMC].

25.   10 U.S.C. § 948h; see R.M.C. 103(a)(10).

26.   R.M.C. 407(a)(4); RTMC ¶ 2-3.a.2.

27.   10 U.S.C. § 948i(b); R.M.C. 503(a); RTMC ¶ 2-3.a.3. The members (jurors) of a military commission are active duty commissioned officers in the armed forces. 10 U.S.C. § 948i(a); R.M.C. 502(a)(1); RTMC ¶ 2-3.a.3.

28.   RTMC ¶ 9-1.a.6.D.

29.   10 U.S.C. § 950b(c)(1); see R.M.C. 1107(a), (b)(1), (c)–(d), (f).

30.   10 U.S.C. § 950b(c)(2)(A); see R.M.C. 1107(c)(2)(A).

31.   10 U.S.C. § 950b(c)(3)(C); see R.M.C. 1107(d); RTMC ¶ 23-7.

32.   RTMC ¶ 2-3.a.9; see 10 U.S.C. § 949i(c)(1); R.M.C. 705(a), (d)(3).

33.   10 U.S.C. § 948l; e.g., R.M.C. 501(c)–(d), (g); RTMC ¶ 2-3.a.

34.   10 U.S.C. § 950c(a); see R.M.C. 1111.

35.   10 U.S.C. §§ 948k(b)–(c), 949c(b)(2)–(3); R.M.C. 502(d)(1)–(3); RTMC ¶¶ 8-4.b, 9-1.b .1.A–C.

36.   10 U.S.C. §§ 949c, 950h(b)–(c); R.M.C. 502(d)(6)–(7), 908(d)(1), 1202(b)–(c); RTMC ¶¶ 8-4.d.1, 9-1.b.2.

37.   The Commandant of the Marine Corps, who is “directly responsible to the Secretary [of the Navy],” 10 U.S.C. § 8043(d), directs “[t]he assignment for duty of judge advocates of the Marine Corps,” 10 U.S.C. § 806(a). The Commandant performs this duty “under the authority, direction, and control of the Secretary.” 10 U.S.C. § 8043(d).

38.   The Regulation for Trial by Military Commission specifically provides for a civilian defense counsel pool of qualified civilian attorneys. RTMC ¶ 9-5.c.

39.   R.M.C. 501(b); RTMC ¶¶ 8-4.c, 9-1.a.4; see, e.g., App. 227; see Mil. Comm. Trial Jud., R.C. 4.2.a(2), a(4), b, d (Sept. 1, 2016).

40.   R.M.C. 501(b), quoted in Al-Nashiri III, 921 F.3d at 236; RTMC ¶ 8-6.a, quoted in Al-Nashiri III, at 236; see 10 U.S.C. § 948k(b)(2).

41.   R.M.C. 501(b); see id. at 502(d)(1)(B); RTMC ¶ 8-4.b.

42.   RTMC ¶ 9-1.b.1.A–C; see R.M.C. 506(b); Mil. Comm. Trial Jud., R.C. 4.2.e (indicating civilian counsel for an accused consists of “GS civilian defense counsel” and “civilian counsel”), 4.2.c (stating “[a] civilian defense counsel ․ is not a General Schedule federal government employee” and “could be pro bono or learned counsel”).

43.   R.M.C. 103(a)(24), quoted in Al-Nashiri III, 921 F.3d at 236.

44.   RTMC ¶¶ 6-3.a–c, 25-2.c; see 10 U.S.C. § 948j(b); R.M.C. 502(c)(1).

45.   10 U.S.C. § 948j(b); R.M.C. 502(c)(1); RTMC ¶ 6-3.b (all citing Art. 26, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 826).

46.   R.M.C. 503(b)(1), (3); RTMC ¶ 6-1.b; see Art. 6(a), UCMJ.

47.   See R.M.C. 503(b)(3); RTMC ¶ 6-1.b.

48.   R.M.C. 503(b)(1); RTMC ¶ 6-2.

49.   The support staff serving in the Office of Military Commissions, which office includes the convening authority and his or her legal advisor, is comprised of uniformed and civilian DOD employees. Off. of Mil. Comm., https://www.mc.mil/About-Us/Organization-Overview (last visited Mar. 4, 2024).

50.   This prohibition also protects a convening authority “with respect to [his or her] judicial acts.” R.M.C. 104(a)(2)(B).

51.   The DOJ is the lead agency representing the government before Article III courts in appeals involving the military commissions. See 10 U.S.C. § 950h(b)(2).

52.   We note that USAF officers have served as judges on this court and continue to do so.

53.   Courts-martial sometimes include civilian defense counsel as learned counsel and/or civilian counsel privately retained by the accused. Art. 38(b)(2), UCMJ; R.C.M. 502(d)(2)(B)–(C).

54.   Official U.S. Air Force Website, https://www.af.mil/About-Us/Biographies/Display/Article/964808/charles-l-plummer/ (last visited Mar. 4, 2024) (biography of USAF TJAG).

55.   The Rules for Military Commissions and Regulation for Trial by Military Commission do not detail the process by which TJAG nominates judge advocates to serve as counsel in military commissions. See 10 U.S.C. § 948k(a)(4); R.M.C. 503(c). In effect, that process is substantially the same as the TJAG nomination process for commission judges. See supra notes 37–39, 44–48 and accompanying text (describing nomination of counsel and judges).

56.   R.M.C. 503(b)(1), (3); RTMC ¶ 6-1.b.

57.   R.M.C. 1201(b)(1); RTMC ¶ 25-2.c.

58.   10 U.S.C. §§ 948j(b), 948k(b)(1)(B), (c)(1)(B); R.M.C. 103(a)(2), 502(c)(1), (d)(1)(A)(ii), (d)(2)(B), 1201(b)(1).

59.   10 U.S.C. § 949b(b)(4)(A), (C)–(D); R.M.C. 104(b)(3)(A), (C)–(D).

60.   Petitioner argues that the service TJAGs have a substantive role in military commissions, citing 10 U.S.C. § 9037(c)(3), which states that TJAGs “shall receive, revise, and have recorded the proceedings of courts of inquiry and military commissions.” Pet'r’s Amend. Br. 16. The military commissions referred to in § 9037(c)(3) are those convened under Article 21, UCMJ—not the Military Commissions Act of 2009, 10 U.S.C. §§ 948a et. seq. (2009 MCA). Resp't’s Br. 57 (June 17, 2023). The 2009 MCA does not have a section comparable to 10 U.S.C. § 9037(c)(3).

61.   An Army judge advocate replaced Judge Acosta on Al-Nashiri's case.

62.   The Clerk position reports to the Chief Trial Judge, Air Force Trial Judiciary, who made the hiring decision in conjunction with an Air Force civil service employee. Resp't’s Br. 50–52; App. 425. The Chief Trial Judge reports to the USAF TJAG. See Pet'r’s App. 199.

63.   Whether an employer has a discernible interest or partisan involvement in the outcome of a military commission is a factual question that must be resolved by examining substance and not form. See Al-Nashiri III, 921 F.3d at 236 (requiring consideration of “reasonable appearances” on issues of judicial impartiality). Thus, in Bergdahl v. United States, discussed infra Part II.F, the district court found an appearance of bias where the President's “ ‘discernible interest’ ” in the case's outcome and his “ultimate authority over the agency” appointing the military judge to a new position, Civil No. 21-418, 2023 U.S. Dist. LEXIS 127510, at *89, ––– F. Supp. 3d –––– (D.D.C. July 25, 2023) (citation omitted), created “a situation in which [the applicant judge] might reasonably be expected to appeal to the president's expressed interest in” the case, id. at *92.

64.   Regarding whom is the employer, petitioner contends that “ ‘[i]t is enough to decide this case’ knowing that the Judge Advocate General of the Air Force – who coordinates directly with the Secretary of Defense on matters related to military commissions – is directly involved in selecting and supervising the Air Force Trial Judiciary.” Pet'r’s Amend. Br. 14 (citing 10 U.S.C. § 9037).

65.   Petitioner marshals various roles performed by the DOD in military commissions to conclude that the “DOD's goal [is] convicting and executing Mr. Al-Nashiri.” Pet'r’s Reply 10–11. Petitioner, however, points to no facts that actually support his conclusion. He simply assumes it.

66.   A court-martial is staffed under the UCMJ the same way as military commissions. See R.C.M. 502(c)–(d).

67.   Petitioner argues that the USAF JAG Corps, Trial Judiciary, and TJAG are parties to, or participants in, his commission. Pet'r’s Amend. Br. 14–16. The record facts, however, do not establish this. More importantly, the record facts also do not reveal their interest or partisan involvement in his commission. See supra Parts I.B–E, II.C–D. Petitioner also attempts to compare the military commission role of the USAF TJAG with that of the Attorney General. See Pet'r’s Amend. Br. 14, 15 & n. 86; Pet'r’s Reply 11. The record supports no such comparison. The USAF TJAG's role is focused on supplying a pool of judge advocates for detailing by others to commission jobs, while the Attorney General's role mainly is focused on supporting the prosecutorial function in military commissions.

68.   If we concluded that disqualification is mandated because of the DOD's role in petitioner's commission and because the Clerk is employed within the DOD, as petitioner argues, an additional issue is presented. Another intolerable conflict would exist in petitioner's commission due to both trial counsel and defense counsel being employed as USAF judge advocates.

69.   Petitioner explains that “ ‘[t]he dignity and independence’ of the commission ‘are diminished when [a] judge comes before the lawyers in [a] case in the role of a suppliant for employment.’ ” Pet'r’s Amend. Br. 14 (alterations in original; one set of quotation marks omitted) (quoting Al-Nashiri III, 921 F.3d at 235 (citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 461 (7th Cir. 1985))).

70.   See Def. Fin. & Acct. Serv., https://www.dfas.mil/MilitaryMembers/payentitlements/PayTables/Basic-Pay/CO/ (last visited Mar. 4, 2024) (providing 2024 pay chart for officer ranks); Mil. Pay & Benefits, https://militarypay.defense.gov/PAY/Allowances/bah.aspx (last visited Mar. 4, 2024) (stating basic allowance for housing depends, in part, on pay grade); Def. Travel Mngt. Off., https://www.travel.dod.mil/Travel-Transportation-Rates/DislocationAllowance/ (last visited Mar. 4, 2024) (stating allowance for military household move depends, in part, on pay grade); Mil. Pay & Benefits, https://militarypay.defense.gov/Pay/Retirement/TypicalSituations/ (last visited Mar. 4, 2024) (stating military pension depends, in part, on pay grade at retirement).

71.   Petitioner also argues that appearance of bias includes “all the minute-by-minute rulings—and failures to rule—during hearings and in ex parte meetings with the prosecution,” each of which impact the complex decisions in his case. Pet'r’s Reply 6. This very same argument was raised before us in Al-Iraqi v. United States, 455 F. Supp. 3d 1273, 1319 (CMCR 2020). We rejected the invisible impact argument then as speculative, id. at 1319–20, as we do now.

72.   See Off. of Pers. Mgmt., Employee Rights & Appeals: Adverse Actions, https://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/#url=Adverse-Actions (last visited Mar. 4, 2024) (citing 5 C.F.R. pt. 752).

73.   Title 10 section 802(a)(4) of the United States Code, provides that persons subject to the UCMJ include “Retired members of a regular component of the armed forces who are entitled to pay.”

Pollard, Judge:

Opinion for the court filed by Judge Pollard