IN RE: Abd Al Rahim Hussayn Muhammad AL-NASHIRI (2021)

PUBLISHED OPINION OF THE COURT

Petitioner is charged with—and facing the death penalty for—multiple offenses relating to the bombings of the USS Cole in 2000 and the M/V Limburg in 2002, attacks which resulted in the deaths of seventeen U.S. servicemembers and one foreign national crewmember. See In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110, 113–16 (D.C. Cir. 2016) (discussing the alleged offenses and development of the military commission system for adjudicating violations of the law of war).

Petitioner has filed a petition for a writ of mandamus and prohibition asking this court to dismiss without prejudice all the charges against him. Pet'r's Br. (Aug. 16, 2021). He contends the military commission judge's rulings in at least seven orders violated 10 U.S.C. § 949p-4 and Mil. Comm. R. Evid. 505, Manual for Military Commissions, United States (MMC) (2019 ed.).¹ Id. at 1–2, 19 (citing AEs 337E, 399BB, 399CC, 405K,² 435B, 435C, 443B).³ Essentially, petitioner objects to the process the military judge used to assess trial counsel's requests to redact, substitute, and summarize certain classified information contained in documents the government intended to release to petitioner in response to his discovery requests. Respondent urges this court to deny the petition because it does not meet the threshold for granting such extraordinary relief. Resp't's Br. 6 (Sept. 20, 2021) (citing Cheney v. U.S. District Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004); Belize Soc. Dev. Ltd. v. Gov't of Belize, 668 F.3d 724, 729–30 (D.C. Cir. 2012)). We agree with respondent and deny Al-Nashiri's petition.

I. Appellate background

Petitioner has filed seven petitions for writs of mandamus and/or prohibition with the Court of Appeals for the District of Columbia Circuit (D.C. Circuit), as follows: (1) In re Al-Nashiri, No. 09-1274, 2010 WL 4922649, 2010 U.S. App. LEXIS 24338 (D.C. Cir. Nov. 24, 2010) (per curiam) (unpublished) (prior to swearing or preferral of charges, order granting motion for voluntary dismissal of petition concerning federal agency decision); (2) In re Al-Nashiri, No. 14-5229, 2014 U.S. App. LEXIS 22038 (D.C. Cir. Nov. 18, 2014) (unpublished) (order denying petition for expedited district court decision); (3) In re Al-Nashiri (Al-Nashiri I), 791 F.3d 71, 75, 86 (D.C. Cir. 2015) (denying petition asserting constitutional challenges require disqualification of United States Court of Military Commission Review (CMCR) judges); (4) In re Al-Nashiri, No. 16-1152, 2016 U.S. App. LEXIS 9947 (D.C. Cir. May 27, 2016) (per curiam) (unpublished) (order denying petition asserting Constitution's Appointments Clause and 10 U.S.C. § 973(b) require disqualification of CMCR military appellate judges);⁴ (5) Al-Nashiri II, 835 F.3d at 117 (denying petition for dissolution of commission that argued “conduct did not take place in the context of hostilities”); (6) In re Al-Nashiri (Al-Nashiri III), 921 F.3d 224, 240–41 (D.C. Cir. 2019) (granting petition asserting commission judge's search for employment as immigration judge while serving as petitioner's judge required his disqualification); (7) In re Al-Nashiri, No. 21-1208, 2021 U.S. App. LEXIS 32152 (D.C. Cir. Oct. 26, 2021) (per curiam) (order directing filing of lodged petition in matter concerning torture allegations).

Petitioner has filed two petitions for mandamus and prohibition in this court. They are: In re Al-Nashiri, No. 21-001, at *2, *5 (CMCR Sept. 20, 2021) (order vacating commission order on admissibility of coerced admissions in discovery dispute and denying petition as moot), and In re Al-Nashiri, No. 21-004 (CMCR filed Aug. 16, 2021) (the case at bar).

Respondent has filed three government appeals in this court: United States v. Al-Nashiri, 191 F. Supp. 3d 1308, 1328 (CMCR 2016) (reinstating dismissed charges); United States v. Al-Nashiri, 222 F. Supp. 3d 1093, 1105 (CMCR 2016) (reversing decision to exclude evidence); United States v. Al-Nashiri, 374 F. Supp. 3d 1190, 1225 (CMCR 2018) (holding Al-Nashiri's counsel remain his counsel and vacating commission's abatement order), vacated on other grounds, Al-Nashiri III, 921 F.3d at 240.

II. Factual background

A. Military judge's rulings on classified material

Pursuant to petitioner's discovery requests and the military judge's orders, respondent has provided petitioner with approximately 16,000 pages and over 66 megabytes of multimedia files related to alleged intrusions into attorney-client communications between petitioner and his counsel at Guantanamo Bay, Cuba. AE 399BB at 2; Resp't's Opp'n to Stay 13 (Aug. 26, 2021). This discovery was unrelated to petitioner's guilt or innocence; instead, it concerned claims the government monitored meetings between petitioner and his counsel well after his apprehension and subsequent transfer to Guantanamo Bay, Cuba. AE 399KK at 1; Resp't's Opp'n to Stay 6–7; see Al-Nashiri III, 921 F.3d at 228–29 (discussing allegations of government monitoring and possible intrusions at Guantanamo Bay, Cuba).

Prior to providing this discovery to petitioner, the government sought to protect certain classified information from release by invoking Mil. Comm. R. Evid. 505. In pursuit of this effort, trial counsel submitted several ex parte motions to the military judge, which proposed, in general, to redact certain classified information and substitute it with unclassified alphanumeric identifiers or summaries. See, e.g., AEs 337C, 399W, 435. Two of these motions, AEs 337C and 399W, covered large volumes of discovery. Instead of providing the military judge with the entirety of the discovery in both redacted and unredacted forms, trial counsel elected to provide the military judge with samples or “exemplars”—several hundred pages of documents that trial counsel contended were representative of the larger body of discovery related to these two motions.⁵ AEs 337C, 399W. As a result, the military judge had unmodified copies of the exemplars along with copies of the same documents showing trial counsel's proposed redactions and substitutions.

At the direction of the military judge, two members of the trial judiciary staff (TJ staff)—a senior attorney advisor and an attorney advisor—met with four members of the prosecution on May 27, 2021. AE 399KK at 2. The meeting was not recorded and no verbatim transcript of the meeting was created. See id. at 14. In a later ruling, the military judge said the purpose of the meeting was “to expedite the [Mil. Comm. R. Evid.] 505 review process and to improve the quality and usefulness of the discovery to the Defense by identifying for the Prosecution issues identified by the [TJ staff] during their review of the Government's pleading.” AE 435B at 1. The military judge averred that he did not participate in the meeting and no rulings or orders were communicated by the TJ staff during the meeting. Id.; see also AE 399KK at 2.

After the meeting, the TJ staff and the prosecution exchanged several emails, and the prosecution provided the TJ staff a 34-page document, all of which was sealed and marked as appellate exhibits. AE 399KK at 2. The emails primarily consisted of the TJ staff asking why certain information had been redacted and discussing how to craft more detailed unclassified summaries of the types of information the government sought to withhold from the defense. See AEs 449A, 449B. The 34-page document set out questions asked by the TJ staff at the May 27, 2021, meeting along with the government's response to each question. AE 449C. The questions included in this document asked why certain information was redacted, but also focused on such matters as the legibility of certain pages, the accuracy of included transcriptions, missing labels for the specific authority for some of the redactions and substitutions, and the accuracy of proposed summaries. Id. The military judge stated he did not review the written responses in these emails or the separate 34-page document. AE 399KK at 2. After the meeting, the government modified some of the material previously submitted ex parte to the military judge. See, e.g., AE 337E at 3 (referencing modification).

Ultimately, the military judge issued several rulings in July 2021, permitting the government to redact certain material, substitute redactions with identifiers, and substitute summaries for certain other classified information before providing the discovery to the defense. See AEs 337E, 399BB, 399CC,⁶ 435B, 435C,⁷ 443B. The military judge's rulings in AEs 337E and 399BB (and its classified addendum at AE 399C)—pertaining to the two motions including exemplars—further authorized the government to make these alterations to the larger body of discovery and then release those documents to the defense without first seeking the military judge's approval of each modified document. AE 337E at 6; AE 399B at 6. Both rulings explained not only the exemplar method employed by the military judge, but also discussed the May 27, 2021, meeting. Notably, the military judge included this direction in one of the rulings:

Should the Defense, during their review of intrusion-related discovery, identify substitutions and/or redactions that do not appear to comport with the process approved in this ruling or that appear to go beyond the two categories of classified information addressed by this ruling, the Defense is not barred from challenging such redactions and/or substitutions through an appropriate motion after first seeking resolution of any such concerns through coordination with the Government.

AE 399BB at 6; see also AE 337E at 6–7 & 7 n.3 (stating similar); AE 399KK at 19.

B. Al-Nashiri's motion regarding the military judge's rulings

On July 27, 2021, the defense filed a motion requesting the military judge vacate three of his rulings, including the two which involved the exemplars. AE 399DD. Those three rulings were: AEs 399BB, 399CC (the classified addendum to AE 399BB), and 435B (ruling on proposed redactions and substitutions to certain documents, but which did not involve exemplars). Id. The defense asserted the military judge erred by “totally abdicat[ing] his decision-making authority” to the TJ staff, failing to direct a verbatim transcript of the meeting between the prosecution and the TJ staff on May 27, 2021, and only reviewing exemplars rather than the thousands of pages of discovery relating to the rulings in AEs 399BB and 399CC. Id. at 11–14.

In response, the government argued the defense's arguments were without merit and that the rulings in AEs 399BB, 399CC, and 435B were correct. AE 399FF at 1–2. Notwithstanding this position, the government joined the defense's request to vacate the rulings “without prejudice to the Government's prompt resubmission of motions for substitutions and other relief without the use of exemplars” in order to “simply ․ avoid further unreasonable delay and advance this case toward trial.” Id. at 2, 4. This led the defense to submit a reply in which counsel abandoned their originally requested relief—vacation of the three rulings—and contended for the first time that the only appropriate relief for this matter was to dismiss all of petitioner's charges without prejudice. AE 399GG at 1. In this reply, the defense also expanded the scope of its original motion to reach the military judge's rulings at AEs 337E, 435C, and 443B, such that the defense was claiming six rulings were wrongly decided.⁸ Id.

Despite not yet having received a ruling from the military judge on its motion at AE 399DD, the defense petitioned this court on August 16, 2021, for a writ of mandamus and prohibition and also asked us to stay Al-Nashiri's military commission proceedings.⁹ Shortly thereafter, on August 27, 2021, the military judge denied the defense's motion, declining to either vacate the six rulings or dismiss the charges. AE 399KK. In his ruling, the military judge rejected the defense's claim that he had abdicated his decision-making authority. He explained that while he relied on his judicial staff to conduct initial reviews of the classified pleadings, he personally ruled on all motions before the commission. See id. at 7–8. He said that once the TJ staff raised concerns about the government's proposed redactions and substitutions, he directed the TJ staff to meet with the prosecutors. Id. at 8–9. The military judge said the government was essentially “given an opportunity to correct any mistakes, to provide clarification on any Government proposed substitution or summary, or to consider revising their pleadings before the Commission ultimately ruled on these motions,” but he based his ruling on the final motions submitted by the government. Id. at 9.

The military judge also concluded that a verbatim transcript of the May 27, 2021, meeting was not required because the meeting did not amount to a “presentation” under Mil. Comm. R. Evid. 505(f)(2)(B). Id. at 13–14. Instead, he characterized the event as “a meeting between [TJ] staff members and members of the Prosecution team where the [TJ] staff members identified potential issues of concern in several of the Government's [Mil. Comm. R. Evid.] 505 pleadings to the Government.”¹⁰ Id. at 14. This meeting, the military judge explained, “provided the Government an opportunity to correct any errors or issues prior to the Commission's review of the Government's pleadings.” Id. The military judge also pointed to the emails and the 34-page document as “captur[ing] the subject matter of the meeting” and said that the government's pleadings and his rulings provided adequate documentation for any later appellate review. Id.

With respect to the exemplar process, the military judge found neither any authority prohibiting such a process nor any prejudice to petitioner from the commission's use of it. Id. at 15–17, 19. Specifically, the military judge highlighted the fact that the defense had “offered not a single instance of a document provided in discovery by the Government that runs afoul of this Commission's rulings.” Id. at 19. He also highlighted other aspects of his rulings designed to make the redaction and substitution process more transparent, such as requiring the government to produce an index of the redactions and permitting only limited redactions as set forth in his “strict and narrow rulings.” Id. The military judge said he had been “vigorous” in ensuring the defense was afforded efficient access to classified discovery that it was entitled to receive. Id.

C. Al-Nashiri's petition to this court

Before us, petitioner raises the same three allegations he raised to the military judge in AE 399DD, discussed supra at Part II.B. He alleges the military judge erred by delegating tasks to the TJ staff, using an exemplar process rather than personally reviewing each page of the discovery, and not ordering a verbatim transcript of the May 27, 2021, meeting. Petitioner asks us to dismiss the charges against him without prejudice. Pet'r's Br. 16–17, 19.

As to his first allegation, petitioner contends the “plain language” of Mil. Comm. R. Evid. 505 requires the military judge to personally “go page by page, redaction by redaction” in his assessment of material to be provided to him. Id. at 16. On his second point, petitioner asserts the rules for redacting and substituting classified information do not “envision a ‘process’ or the use of ‘exemplars’ ” because an exemplar process “would defeat the entire purpose of [10 U.S.C.] § 949p-4(b)(1).” Id.

With respect to his third allegation, petitioner contends 10 U.S.C. § 949p-4(b)(2) mandated a transcript of the May 27, 2021, meeting. Id. at 13. He argues that a verbatim transcript is necessary because otherwise it will not be possible to discern “whether improper factors were considered; whether evidence that was noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal, or sentencing case was improperly withheld (either intentionally or otherwise); or whether improper influence was exerted.” Id. at 14–15. By extension, petitioner asserts appellate review “will be rendered impossible” because “there is no way for an appellate court to know what information was discussed, what information has been considered by the military judge, what rulings have been infected, and ultimately how that will shape the evidence considered by the military commission on the questions of guilt or innocence.” Id. at 10.

Respondent asserts petitioner's claims are meritless and, in any event, are “commonplace claims of procedural-error relating to a trial court's classified information discovery decisions,” which are “routinely considered by appellate courts on direct appeal.” Resp't's Br. 5. Thus, respondent contends we should reject Al-Nashiri's petition on its merits as well as on the basis that it fails to warrant extraordinary relief.

Respondent maintains the military judge never ceded any decision-making authority to the TJ staff, evidenced by the fact that the military judge personally ruled on each of the relevant ex parte motions. See id. at 18–20. Respondent notes judges commonly employ their staff to review documents and draft rulings. Id. at 19 & n.71 (citing al-Iraqi v. United States, 455 F. Supp. 3d 1273, 1329 (CMCR 2020)). In countering petitioner's second claimed error, respondent argues: that neither the MCA nor the Mil. Comm. R. Evid. makes any reference to any requirement that a military judge personally review each page and each redaction of discovery materials; petitioner has cited no case requiring a judge to do so; and other courts have employed exemplar-like processes in the face of voluminous discovery. Id. at 21–24.

As to petitioner's third claim, respondent likens the May 27, 2021, meeting to a pretrial conference, which respondent says does not require transcription. Id. at 28 (citing 10 U.S.C. § 949p-2). Moreover, respondent argues that even if the meeting should have been transcribed, petitioner can show no prejudice. Id. Finally, respondent contends that appellate courts would be able to review the redaction process by comparing the differences between the various requests for proposed substitutions and the final approved requests, and by reviewing the exemplars, the emails, and the 34-page document capturing the TJ staff's questions about the proposed redactions and the government's answers. See id. at 29–31.

III. Law and analysis

This court has jurisdiction over mandamus petitions for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a). See Al-Nashiri III, 921 F.3d at 233. The purpose of a writ of mandamus is to “confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). A writ of mandamus may only be granted when a petitioner demonstrates:

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

Al-Nashiri III, 921 F.3d at 233 (alterations in original) (internal quotation marks omitted) (quoting Cheney, 542 U.S. at 380–81, 124 S.Ct. 2576).

Mandamus “is a ‘drastic’ remedy reserved for ‘extraordinary causes.’ ” In re Clinton, 973 F.3d 106, 111 (D.C. Cir. 2020) (quoting Ex parte Fahey, 332 U.S. 258, 259–60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947)). The remedy is only justified in “exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)), or for a “clear abuse of discretion,” id. (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953)). “In the ‘normal course, ․ mandamus is not available to review a discovery order,’ ” In re Al Baluchi, 952 F.3d 363, 368 (D.C. Cir. 2020) (ellipsis in original) (citation omitted), “because ‘[m]andamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment,’ ” id. (brackets in original) (quoting Al-Nashiri I, 791 F.3d at 78). “Otherwise, the writ could ‘be used as a substitute for the regular appeals process.’ ” Al-Nashiri I, 791 F.3d at 78 (quoting Cheney, 542 U.S. at 380–81, 124 S.Ct. 2576).

“[T]he gravity of the burdens imposed on criminal defendants ․ without more, generally do not suffice to bring a case within mandamus's ambit.” In re Flynn, 973 F.3d 74, 79–80 (D.C. Cir. 2020) (en banc) (per curiam) (citing Al-Nashiri I, 791 F.3d at 80; Roche, 319 U.S. at 30, 63 S.Ct. 938). Moreover, the United States Supreme Court has recognized a “policy against piecemeal appellate review”—a policy generally undermined by granting mandamus. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam); see also In re Papandreou, 139 F.3d 247, 250 (D.C. Cir. 1998) (“Lax rules on mandamus would undercut the [final judgment rule] and would lead to piecemeal appellate litigation.”).

Having carefully considered the petition in this case, we conclude petitioner has failed to show his right to the writ is “clear and indisputable” on any of his asserted grounds. We decline to grant his requested relief.

A. Procedures related to classified material

In 10 U.S.C. §§ 949p-1 to -7, Congress addressed the procedures for protection, discovery, and introduction of classified information in military commissions. Procedures for discovery of information derived from classified documents also are detailed in Mil. Comm. R. Evid. 505. Under this rule of evidence, when the government determines there is a need to “delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any classified information,” trial counsel first submits a declaration invoking the classified information privilege and explaining the damage to national security that could be caused by the release of such information. Mil. Comm. R. Evid. 505(f)(1)(A) (2019 ed.).

When discovery of the information is ordered, the military judge may still authorize the government to delete or withhold certain items of information within that discovery and substitute summaries for other information. Id. at 505(f)(2)(A). Such relief is sought by the government through ex parte requests to the military judge, as explained in Mil. Comm. R. Evid. 505(f)(2)(B), which is taken practically verbatim from 10 U.S.C. § 949p-4(b)(2). Rule 505(f)(2)(B) directs the military judge to permit trial counsel to make an ex parte presentation in support of a request for relief and to seal and preserve the presentation for review in the event of an appeal. Rule 505 further explains that “any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.” Id. at 505(d)(1).

B. Role of the TJ staff

Petitioner makes broad claims that the military judge “abdicated his decision-making authority” by involving the TJ staff in the process of determining whether or not to grant the government permission to redact and substitute certain information; yet he cites to no persuasive authority for his position. See Pet'r's Br. 10–13; Pet'r's Reply 7–8, 10–12 (Oct. 20, 2021). Petitioner instead contends that—because the rules pertaining to classified information do not explicitly authorize “delegation of the Commission's responsibilities ․ to judiciary staff”—doing so is unauthorized. Pet'r's Reply 11. There are several problems with this argument. For one, petitioner assumes that the absence of explicit authorization is equivalent to a prohibition. Petitioner also fails to identify what judicial responsibility was purportedly delegated; notably, he does not account for the evidence showing the military judge did, in fact, personally rule on the government's motions. See AE 399KK at 8. More fundamentally, however, petitioner identifies no authority prohibiting a judge from using his or her staff in the way the military judge did here. See Pet'r's Br. 10–13; Pet'r's Reply 7–8, 10–12.

The closest petitioner comes to citing any support for his position is by pointing to the Classified Information Procedures Act (CIPA), 18 U.S.C. app. III, § 4, which applies to federal criminal prosecutions. That law states the government's written request to withhold or substitute classified information sought in discovery is “to be inspected by the court alone.” Pet'r's Reply 11 (emphasis added) (quoting 18 U.S.C. app. III, § 4). Petitioner, however, makes no effort to address what “the court” means under CIPA, or even common judicial norms, much less persuasively establish that “the court” excludes judicial staff. Moreover, even if we were to agree with petitioner's view that “the court” phrase in CIPA means “the judge alone” and excludes a judge's staff, petitioner does not explain why we would import the phrase to the regulation of military commission processes—processes that are guided by separate laws and rules that specifically do not include the phrase “the court alone.” Indeed, to the extent the commission rule was modeled on CIPA, there is a strong argument “the court alone” was purposefully omitted. See al-Iraqi, 455 F. Supp. 3d at 1323–24 (stating amendments to classified procedures in commissions were based on CIPA); cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning, 578 U.S. 374, 136 S. Ct. 1562, 1578, 194 L.Ed.2d 671 (2016) (Thomas & Sotomayor, JJ., concurring in judgment) (“[W]hen Congress enacts a statute that uses different language from a prior statute, we normally presume that Congress did so to convey a different meaning.”).

The employment of staff attorneys to assist judges in their judicial duties is hardly a novel concept. See, e.g., Morland v. Sprecher, 443 U.S. 709, 710, 99 S.Ct. 3086, 61 L.Ed.2d 860 (1979) (per curiam) (discussing prehearing conference held with the parties by the senior staff attorney); United States v. St. Hubert, 918 F.3d 1174, 1179–80 (11th Cir. 2019) (noting court's practice of having staff attorney review all pro se applications to file certain motions and prepare certain legal memoranda). Military commission rules expressly contemplate the detailing of personnel “for the assistance of the military commission,” who will perform “such duties as may be imposed by the military judge.” Rule for Military Commissions 502(e)(3)(E), Manual for Military Commissions, United States (MMC) (2019 ed.). Indeed, other staff attorneys assigned to military commissions have been engaged in precisely the same sorts of meetings at issue here. See In re Al-Tamir,¹¹ 993 F.3d 906, 914 (D.C. Cir. 2021) (explaining that the staff attorney “exercised substantial discretion” when he “met with the ․ prosecutors ex parte around five or six times pursuant to Military Commission Rule of Evidence 505, which allows for such meetings to review and approve government-proposed substitutions for classified evidence”).

The reliance on court staff to review evidence, research matters, and draft rulings does not transform staff members into judges or otherwise relieve judges of their judicial obligations. See, e.g., Oliva v. Heller, 670 F. Supp. 523, 526 (S.D.N.Y. 1987) (“[T]he work done by law clerks is supervised, approved, and adopted by the judges who initially authorize it. A judicial opinion is not that of the law clerk, but of the judge. Law clerks are simply extensions of the judges at whose pleasure they serve.”); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1047 (7th Cir. 1984) (Posner, J., dissenting) (“No American judge today believes that a law clerk becomes a judge by preparing an opinion draft.”). As of October 12, 2021, the transcript in Al-Nashiri's case was 12,831 pages, and the appellate exhibits totaled 190,290 pages. Email from Off. of Ct. Admin., Off. of Mil. Comm., to Mark Harvey, Clerk, CMCR (Oct. 12, 2021). We would find it more unusual if the military judge had not employed the assistance of his staff attorneys in managing this case than the fact that he did. See In re Allied-Signal, Inc., 891 F.2d 967, 972 (1st Cir. 1989) (stating effective management of complex case “benefited from” or “absolutely require[d]” support of career law clerks).

Based upon our review of the record, we have determined the military judge authorized the TJ staff to meet with government counsel to conduct preliminary assessments of their proposed redactions and substitutions of classified material. See, e.g., AE 399KK at 8–9. The TJ staff members were also authorized to provide feedback to respondent about its proposals in advance of the proposals being presented to the military judge. See, e.g., id. We see no indication this feedback bound or limited the military judge's discretion in any way. Rather, the military judge made the final decisions concerning discovery of classified information. See, e.g., id. Petitioner has not established error in the military judge's reliance on the TJ staff's attendance at the May 27, 2021, meeting with the prosecution on the redaction and substitution of classified information subject to discovery. As such, petitioner has failed to establish any right to a writ of mandamus on this ground, let alone a “clear and indisputable” one.

C. Use of exemplars

Petitioner's request for mandamus based upon the military judge's review of exemplars rather than conducting a personal review of each page of classified information proposed for modification prior to release similarly fails: he has not shown how the use of this process entitles him to the relief he requests.

As explained supra at Part II.A, the government provided the military judge with exemplars depicting its proposed process for redactions and substitutions with respect to discovery covered by two of the government's ex parte motions, AEs 337C and 399W. These exemplars included both the original, unredacted documents and those same documents in the format proposed for release to the defense. Thus, the military judge was afforded the ability to see and understand the method that the government sought to employ across the thousands of pages of discovery it intended to turn over to the defense. The military judge explained in his ruling on the defense's motion:

It is important to note that, based on the highly specific nature of the redactions and substitutions in issue in AE 399W and AE 337C, and the Commission's practice in this case of alerting the Defense to the nature of the classified information withheld, any such redactions and substitutions made by the Government to discoverable materials will be readily apparent to the Defense when they receive the discovery. Each classified identity will be substituted with an overlay containing a unique identifier. Further, each redaction of references to certain classified sources and methods in intrusion-related discovery will be clear from the index provided to the Defense that indicates exactly where in the discovery those redactions are made.

AE 399KK at 19.

Petitioner contends this exemplar process was improper and that the military judge was required “to go page by page, redaction by redaction” based upon the “plain language” of Mil. Comm. R. Evid. 505. Pet'r's Br. 16. Yet, neither in his original petition nor his reply to the government's answer does petitioner describe what specific “plain language” in the rule commands such a result. Military Commission Rule of Evidence 505(f)(2)(A), which addresses an accused's discovery of and access to classified information, explains that a military judge may authorize the government “to delete or withhold specified items of classified information” or “to substitute a summary for classified information.” The government may request this relief via “an ex parte presentation to the extent necessary to protect classified information.” Id. at 505(f)(2)(B).

Rule 505(f)(2)(B) further includes this provision:

If the military judge enters an order granting relief following such an ex parte showing, the entire presentation (including the text of any written submission, verbatim transcript of the ex parte oral conference or hearing, and any exhibits received by the court as part of the ex parte presentation) shall be sealed and preserved ․

Contrary to petitioner's assertions, the rule says nothing about how much of the discovery proposed for redaction and substitutions must be reviewed by the military judge or in what level of detail the military judge must conduct his review. Indeed, the phrases, “any written submission” and “any exhibits received” used in the parenthetical at Mil. R. Evid. 505(f)(2)(B) suggest the government is not required to submit the entirety of its proposed redactions and substitutions at all. One plain reading of the parenthetical would simply be that whatever the government submits—if anything—is to be preserved in the record. This interpretation is bolstered by the fact that the rule is quite detailed in terms of the processes for handling classified information, yet nothing in the rule requires the government to submit all proposed modifications to classified discovery to the military judge in the first place, let alone require the judge's review of that discovery “page by page, redaction by redaction.”

Moreover, we note other courts have used processes akin to those employed by the military judge when reviewing matters under CIPA, which is substantially similar to the rules applicable to the military commissions. For example, in United States v. Naseer, one district court explained it had “examined, in camera, a random sampling of records describing the materials that the government seeks to delete.” No. 10 CR 19 S-4, 2014 WL 12909332, at *2, 2014 U.S. Dist. LEXIS 85459, at *5 (E.D.N.Y. June 20, 2014) (order). In United States v. El-Hanafi, another district court noted that because it lacked the resources to “review every single document that the Government holds,” the court instead relied upon government descriptions of the classified material and “samples” of those materials in approving proposed substitutions and deletions. No. S5 10 CR 162, 2012 U.S. Dist. LEXIS 23403, at *13–14 (S.D.N.Y. Feb. 24, 2012).¹²

Petitioner has not adequately explained why military commission judges should not be permitted to employ similar practices—especially given the absence in Mil. Comm. R. Evid. 505 of any prohibition on the use of exemplars. Similarly, petitioner has failed to show that the military judge here erred using that method. This failure places a writ of mandamus outside petitioner's reach for his claim about the exemplars.

D. Transcripts of the TJ staff meeting

Lastly, petitioner contends that a verbatim transcript of the ex parte meeting attended by the TJ staff and prosecutors was required by 10 U.S.C. § 949p-4(b)(2) and Mil. Comm. R. Evid. 505(f)(2)(B) when redactions of classified information were discussed. See Pet'r's Br. 10–11, 13–15; Pet'r's Reply 4–10, 15–20. He draws a contrast between CIPA and the commission rule to support his position, stating “where CIPA only requires the preservation of the statement of the United States, § 949p-4(b)(2) goes further and requires that everything be preserved.” Pet'r's Reply 4–5. Petitioner argues that the absence of such a transcript for the May 27, 2021, meeting warrants a writ of mandamus from this court.¹³ Pet'r's Br. 2; Pet'r's Reply 21. We disagree.

Petitioner's argument hinges on the parenthetical reference in Mil. Comm. R. Evid. 505(f)(2)(B) cited supra at Part III.C—the parenthetical being copied directly from 10 U.S.C. § 949p-4(b)(2). Relying on the reference to a “verbatim transcript of the ex parte oral conference or hearing,” petitioner concludes: that such transcripts are required in the event of any such oral conference or hearing, the May 27, 2021, meeting was an oral conference or hearing, and a verbatim transcript of the meeting therefore should have been produced in order to facilitate later appellate review. See Pet'r's Br. 16–18. This issue is one of first impression for our court.

While we recognize the general soundness of the principle that having a verbatim transcript of ex parte meetings may yield greater precision and efficiency in an appellate review, we are not convinced petitioner has shown a “clear and indisputable right” to the “drastic” remedy of mandamus under the facts presented here. One could read the parenthetical at issue here as petitioner does—as setting out a list of the required constituent parts of any ex parte presentation under 10 U.S.C. § 949p-4 and Mil. Comm. R. Evid. 505, all of which must be preserved. An alternative reading of the parenthetical, however, arguably could lead to the conclusion that a verbatim transcript shall be made part of the record in the event a transcript is created.

Rule 505(f)(2)(B) requires the military judge to permit the government to make an “ex parte presentation,” but nothing in the rule requires the military judge to conduct a hearing or oral conference as part of that presentation. Nor does the rule provide any definition of, or requirements for, such a hearing or conference. Even if we were to conclude the parenthetical to this rule requires verbatim transcripts in any “oral conference or hearing,” there remains the question of whether the May 27, 2021, meeting amounted to a “conference” or a “hearing” under the rule. These are all interesting questions, but they are not ones we need to resolve today. Petitioner's burden in seeking mandamus is far greater than claiming an error occurred—he must demonstrate a clear right to that remedy, which he has not done.¹⁴

Further, any conclusion that a verbatim transcript of the May 27, 2021, meeting was required would still net petitioner no relief at this stage because he has not demonstrated that he has no other adequate means to attain relief. Petitioner's focus on the absence of a transcript of the meeting has rather distorted the ultimate issue that may prejudice him: the potential withholding of discovery he is otherwise entitled to. Conceptually, the lack of a verbatim transcript of the meeting could complicate appellate review in some way, but the more salient issue would be whether petitioner was somehow prejudiced by improper redactions or substitutions. This, of course, is not a question we can presently answer because not only has petitioner not been convicted of anything, but we do not have a complete record, and we have no way of knowing what matters in this voluminous discovery—if any—will be relevant in petitioner's trial. The avenues of relief for petitioner lie first with the military judge and, second, by direct appeal of a conviction. See Al-Nashiri I, 791 F.3d at 78.

Additionally, the military judge explained to the defense that counsel were free to raise any challenges to the government's redactions and substitutions, AE 399BB at 6; AE 337E at 6–7 & 7 n.3; see AE 399KK at 19, which is to say petitioner, at the trial level, may seek relief from any commission ruling improperly withholding discovery. The military judge, of course, is far more attuned to the parties’ trial theories and the relevance of the discovery at issue than we are. See Wash. Times Co. v. Bonner, 86 F.2d 836, 848 (D.C. Cir. 1936) (stating trial judge is in “much better position” than appellate court to determine evidentiary issues, “[e]specially in a protracted trial”). This is one reason why discovery matters are typically left to the discretion of the trial judge and are inappropriate for mandamus relief. See, e.g., Donnelly v. Parker, 486 F.2d 402, 408 (D.C. Cir. 1973) (“The cases denying review of discovery orders by mandamus are legion.”).

Moreover, if petitioner is ultimately convicted, he may raise the matter during direct appeal, at which point the specific discovery at issue, and any prejudice suffered by petitioner, will be in far sharper focus. Raising this discovery matter on direct appeal will permit a more tailored assessment of whether petitioner should be granted relief based upon the failure to create a verbatim transcript of the May 27, 2021, meeting. If appropriate, we will have the power to direct the precise remedy petitioner asks us to grant now—that is, dismissal of his charges. As such, petitioner has not demonstrated that he has “no other adequate means to attain the relief he desires.” Al-Nashiri II, 835 F.3d at 136 (inner quotation marks and citation omitted).

E. Exceptions to final judgment rule

Petitioner urges this court to make an exception to the mandamus requirements established in Cheney and Al-Nashiri I. He contends that “[d]eparture from the final judgment rule [is warranted] when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice.” Pet'r's Br. 16 (second alteration in original) (quoting Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975)).

Colonial, however, cautions us that “the normal policy is that mandamus does not lie to review discovery orders.” 509 F.2d at 526. In that case, the issue was whether the trial judge had correctly interpreted a rule regarding the petitioner's ability to take depositions in a less-costly manner. See id. at 520–21. The Court determined mandamus was an available remedy because the issue was of first impression, pertained to “an important aspect of discovery law,” involved “a misapprehension of the basic purpose of the discovery rule in issue,” and had the “ ‘potential for making a significant contribution to the efficient and economic administration of justice.’ ” Id. at 525–26 (quoting Kallen v. Nexus Corp., 54 F.R.D. 610, 613 (N.D. Ill. 1972)). Nonetheless, the Court found it unnecessary to issue a formal writ because it believed the lower court would take corrective action on its own accord. Id. at 526.

We find Colonial provides little support for petitioner's position. There, the decision on availability of mandamus turned on the petitioner's ability to develop evidence in the first place. See id. at 520–22. In petitioner's case, however, the documentary evidence already exists; petitioner's issue is the military judge's method of determining whether to allow the government to redact and substitute certain items before providing it to the defense. Thus, denying the petition in the case before us will not result in the loss of or the failure to capture evidence, as was the case in Colonial.

Moreover, the issue at hand pertains—at the absolute most—to a very small subset of cases in the American justice system. Petitioner's situation and the legal issues before us are confined to the particular facts of his case. He retains the ability to challenge the redactions and substitutions before both the military judge and our court on appeal. Thus, even if we were to conclude the military judge had erred, we are unable to find that granting petitioner the relief he requests would have a perceptible impact on the efficient and economic administration of justice beyond the boundaries of petitioner's prosecution. In fact, it is not even apparent to us that ruling in petitioner's favor would result in efficient and economic administration of justice in his case, especially where he is asking us to dismiss all the charges against him and have the government restart its prosecution from scratch.

IV. CONCLUSION

Petitioner has failed to “demonstrate a ‘clear and indisputable’ right to the writ” he has requested. Al-Nashiri I, 791 F.3d at 82 (quoting Cheney, 542 U.S. at 381, 124 S.Ct. 2576). “Given its ‘exceptional’ nature, we cannot use mandamus to remedy anything less than a ‘clear abuse of discretion or usurpation of judicial power.’ ” Id. (quoting Bankers Life, 346 U.S. at 383, 74 S.Ct. 145). Petitioner has not shown any such abuse or usurpation here.

Upon consideration of petitioner's petition for writ of mandamus and prohibition, respondent's answer, and petitioner's reply, as well as the respondent's motions for leave to file an outsized answer and to attach an appendix, it is

ORDERED that respondent's motion for leave to exceed page limits in its answer is GRANTED; it is

FURTHER ORDERED that respondent's motion to supplement the appellate record with an appendix is GRANTED; and it is

FURTHER ORDERED that the petition for writ of mandamus and prohibition seeking dismissal of all charges is DENIED.

FOOTNOTES

1.   The military commission judge is the military commission during litigation when military commission members (jurors) are not present. Rule for Military Commissions 103(a)(21)(B), Manual for Military Commissions, United States (MMC) (2019 ed.). The documents filed by the parties use “military commission judge,” “commission,” and “military judge” interchangeably. We will use “military judge” in lieu of the term “military commission.”

2.   Based upon our review of the record, AE 405K is not a ruling by the military judge at all; rather, it is a government motion. See Pet'r's Br. 1, 8 (Aug. 16, 2021) (referencing AE 405K as a ruling); AE 399GG at 1 (making same reference before military judge). We assume petitioner's reference to AE 405K was made in error.

3.   We use the abbreviation “AE” for all citations to Appellate Exhibits presented to the military judge.

4.   See Pet. for Writ of Mandamus & Prohibition to CMCR, No. 16-1152, at 13 (D.C. Cir. May 24, 2016), Doc. No. 1620463.

5.   The exemplars related to AE 337C consisted of 30 pages, and the exemplars in AE 399W consisted of more than 350 pages. With respect to AE 435, the government submitted 22 documents totaling 557 pages; the government submitted each document in unredacted and redacted formats.

6.   AE 399BB and its classified addendum, AE 399CC, comprise the military judge's ruling on the government's ex parte motion at AE 399W.

7.   Appellate Exhibit 435B is the military judge's ruling on the government's ex parte motion at AE 435; AE 435C is the ruling on a different ex parte motion at AE 435A.

8.   The defense also challenged AE 405K. See note 2 supra for discussion of AE 405K, a motion.

9.   We denied petitioner's motion for a stay on August 30, 2021.

10.   The military judge noted that he previously required a transcription in petitioner's commission when the government made an earlier ex parte presentation on January 7, 2021. AE 399KK at 13–14. The military judge indicated this demonstrated his awareness of his obligation to preserve ex parte “presentations” under Mil. Comm. R. Evid. 505(f)(2)(B), and served to distinguish between a government “presentation” to him and a meeting in which the TJ staff identifies for the government issues with proposed redactions and substitutions. See id.

11.   Nashwan Al-Tamir is also known as Abd Al Hadi Al-Iraqi. See In re Al-Tamir, 993 F.3d 906, 909 (D.C. Cir. 2021).

12.   See also United States v. El-Mezain, 664 F.3d 467, 518–19, 524–25 (5th Cir. 2011) (explaining that judges have discretion to fashion a reasonable solution when faced with voluminous potentially discoverable classified material); United States v. Saipov, No. S1 17-CR-722, 2019 WL 5558214, at *5, 2019 U.S. Dist. LEXIS 187351, at *13–14 (S.D.N.Y. Oct. 29, 2019) (granting motion for CIPA order “withholding [ ] Classified Materials from discovery” after considering government's “detailed summaries” and “submissions,” but without “review[ing] all of the underlying Classified Materials”); United States v. Medunjanin, No. 10 CR 19 1, 2012 WL 13186383, at *3 & *3 n.6, 2012 U.S. Dist. LEXIS 201394, at *6–7 & *7 n.6 (E.D.N.Y. Feb. 22, 2012) (granting motion for CIPA order based on “random sampling” of proposed redactions and government averment that information fell within “delineated categories of information” protected from discovery), judgment aff'd, 752 F.3d 576 (2d Cir. 2014); United States v. Walizazi, No. 10-CR-60, 2011 U.S. Dist. LEXIS 67859, at *16 & n.6 (E.D.N.Y. June 24, 2011) (indicating order will be issued finding certain information in “specified categories is not discoverable” based on prosecution's “sample” of documents and representations).

13.   Petitioner cites to United States v. Napue, 834 F.2d 1311, 1318 (7th Cir. 1987), for the proposition that ex parte proceedings are disfavored. Pet'r's Br. 13. Although that may be true in a general sense, Napue did not involve classified information at all, while 10 U.S.C. § 949p-4 and Mil. Comm. R. Evid. 505 both specifically concern classified information and squarely authorize ex parte proceedings in determining whether to permit redactions and substitutions of that information. Moreover, the Seventh Circuit in Napue noted “ex parte proceedings involving pretrial discovery[ ] [fall within] an area that is peculiarly within the discretion of the [trial] court,” and concluded the appellant had not shown that use of ex parte proceedings prejudiced him. 834 F.2d at 1318 n.3 & 1323.

14.   Although we take no position at this juncture on whether the military judge erred by not directing a verbatim transcript of the meeting, we note that this issue would not exist had he done so. Maintaining such transcripts may also facilitate appellate review and assist in resolving other issues raised regarding the discovery of classified information.

Opinion for the court Key, Judge:

Opinion for the court filed by Key, Appellate Judge, with whom Burton, Presiding Judge, and Stephens, Appellate Judge, join.