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 (2026)

PUBLISHED OPINION OF THE COURT

Petitioner Abd Al-Rahim Hussayn Muhammad Al-Nashiri (Al-Nashiri), also known as Abd Al-Rahim Hussein Muhammed Al-Nashiri and Abd Al-Rahim Hussein Al-Nashiri, is charged with multiple offenses regarding “the attempted bombing of the USS THE SULLIVANS on January 3, 2000, and the bombings of the USS COLE on October 12, 2000, and the French supertanker MV Limburg on October 6, 2002. In re Al-Nashiri, 697 F. Supp. 3d 1280, 1282 (CMCR 2023); Gov't’s App.¹ 150–61 (Apr. 29, 2026) (charge sheet referred on September 28, 2011); see also Resp't’s Br. 1 (Apr. 29, 2026). “These attacks killed seventeen United States Sailors and injured dozens of crewmembers aboard the USS COLE and killed one and injured approximately twelve MV Limburg crewmembers. [Petitioner] is facing the death penalty.” United States v. Al-Nashiri, 764 F. Supp. 3d 1127, 1132–33 (CMCR 2025) (en banc) (citation omitted). The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) “recount[ed] the details of Al-Nashiri's alleged offenses” in In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110, 113–14 (D.C. Cir. 2016). There is no need to further repeat those details here.

The pretrial appellate history of this case involves twenty writ petitions and government appeals. The D.C. Circuit has resolved eight of Al-Nashiri's petitions, and this court has resolved seven petitions filed by Al-Nashiri and five appeals. See Al-Nashiri, 764 F. Supp. 3d at 1133 n.1 (listing eighteen pretrial petitions and appeals, with results); United States v. Al-Nashiri, 374 F. Supp. 3d 1190 (CMCR 2018) (Case No. 18-002) (granting government's appeal of order that indefinitely abated commission); Kammen v. Mathis, No. 18-002, 2018 U.S. CMCR LEXIS 2 (Nov. 2, 2018) (order) (denying stay of prosecution in what was “in essence, an appeal from our denial of Al-Nashiri's request that we disqualify [his] former military commission judge, ․ and vacate a number of his orders” and concomitant remand for development of record).

In his petition for a writ of mandamus and prohibition, petitioner's defense counsel requests that this court provide three remedies to address pretrial discovery issues ² :

(1) apply the materiality standard prescribed by [Rule for Military Commissions] R.M.C. 701(c)(1)[, Manual for Military Commissions, United States (MMC) (2019 ed.),] to all discovery productions, without importing the [United States v.] Yunis[, 867 F.2d 617, 622 (D.C. Cir. 1989),] “relevant and helpful” threshold as a pre-disclosure screen; (2) prohibit trial counsel from unilaterally applying the Yunis standard to withhold discoverable material outside the classified information privilege procedures of M.C.R.E. [Mil. Comm. R. Evid.,] 505[3] and 10 U.S.C. § 949p-4 [(2026)];[4] and (3) conduct a fact-finding to identify the extent to which the improper withholding standard restricted the accused's access to discovery over the course of the military commission proceedings, and to remediate the harm flowing therefrom.

Pet'r’s Br. 32–33 (Apr. 10, 2026).

Respondent, the government, counters that multiple grounds support dismissal of petitioner's writ. It asserts:

Here, the jurisdictional doctrines of ripeness and standing bar Petitioner's requested relief. Petitioner has failed to identify a concrete legal dispute where “no further factual development is essential to clarify the issues.” Similarly, Petitioner has failed to identify an actual or imminent injury that “can be remedied by the action at bar.” Given these jurisdictional deficiencies, the Court should dismiss the Petition.

Resp't’s Br. 14 (citation footnotes omitted). Respondent also asks that we “either dismiss the Petition because it fails to present a concrete controversy appropriate for adjudication or deny it because it fails to meet the stringent standards for a writ of mandamus or prohibition articulated in Cheney v. U.S. Dist. Ct. for D.C.[, 542 U.S. 367 (2004),] (the ‘Cheney conditions’).” Id. at 2–3 (footnotes omitted).

We have carefully considered de novo the pleadings and appendices filed by the parties. We hold that the issues are not ripe and petitioner has not demonstrated that his right to relief is “clear and indisputable.” Cheney, 542 U.S. at 381 (inner quotation marks and citation omitted); In re Hawsawi, 955 F.3d 152, 156 (D.C. Cir. 2020) (quoting In re Al-Nashiri (Al-Nashiri III), 921 F.3d 224, 233 (D.C. Cir. 2019)). We deny the petition for these reasons and as further detailed below. In our analysis we address, in order, the ripeness requirement for jurisdiction, the standard for discovery, and whether the Cheney conditions for issuance of a writ have been satisfied.

I. Statement of facts

During the previous fourteen years of litigation in this case, respondent has provided petitioner “nearly 500,000 pages” of documents, “and the parties have litigated at least 90 motions to compel discovery.” Resp't’s Br. 1, 38. Part of the discovery litigation has involved petitioner seeking documents pertaining to whether the United States was engaged “in hostilities” with al Qaeda when the alleged offenses occurred. Pet'r’s Br. 3. The existence of hostilities is a component of military commission jurisdiction.⁵

Petitioner acknowledges that the respondent provided “more than 315 documents and 3,324 pages of discovery” concerning the hostilities issue; however, some redactions made it difficult for the petitioner to identify document dates, authors, and details. Id. In a motion for judicial in camera review of the respondent's production (Class. AE 637), the petitioner submitted four documents, known as Production 79, to illustrate his concerns about (i) the extent of redactions and (ii) what he “considered a broader and improper use of R.M.C. 701.” Id. Petitioner chose these four documents because he “was able to learn what was behind the Government redactions. These four documents had all been released publicly and contained information the Government [had] redacted from the versions [already] produced to the Defense.” Id.; see infra note 7 (discussing ruling on Documents #3 and #4); App. 138 & n.4 (Apr. 10, 2026) (government identifying production made in response to hostilities-related discovery requests), 16–17 (government discussing release of unredacted document by National Archives and Record Administration), 20 (government discussing same), 145–47 (government identifying unredacted releases of information that cover the same topics in government-redacted documents).

In its response to the defense's motion for in camera review, the government described the process for release of unclassified discovery as follows:

b․ R.M.C. 701(c) contemplates an initial determination by the Government about the relevance, materiality, helpfulness, and cumulativeness of information potentially subject to discovery. If information, whether classified or not, does not meet the standard in R.M.C. 701(c) and Yunis, then it is not discoverable․

c. The [military judge] has repeatedly declined to conduct in camera reviews of the Government's R.M.C. 701(c) decisions. Rather, the Commission has identified categories of information and instructed the Government to search for and turn over items that would fall into those categories.

App. 16. The government observed that the military commission has “repeatedly noted, the Government retains the responsibility to determine” what is discoverable. App. 20 (quoting AE 448C (Al-Nashiri) at 6 (Gov't’s App. 34) (2021 ruling on motion to compel production of unredacted documents in Production 79)).⁶

During the discovery litigation, the military judge asked whether the government's redactions to Documents # 1–4 in Production 79 were “based on relevance under Rule for Military Commissions 701(c).” App. 37. Respondent answered that the Production 79 redactions “reflect the Trial Counsel's determinations that the material was not discoverable under R.M.C. 701, which may include a relevancy determination but may also include a determination that the information is not material, relevant, or helpful under the Yunis standard.” Id. (citation footnote omitted); see App. 35–37 (discussing scope of redactions).

In his ruling on the motion for judicial in camera review of discovery (AE 637D), the military judge considered defense concerns regarding Documents #1 and #2 in Production 79 because some redactions were made under Mil. Comm. R. Evid. 505. See App. 5. He reviewed Documents #1 and #2 but declined to direct the respondent to remove any redactions, holding “the redacted information is simply not relevant.” Id. The judge explained that “R.M.C. 701(c) contemplates an initial determination by the Government of the relevance, materiality, helpfulness, and cumulativeness of information subject to discovery. If information is not relevant, it is not discoverable.” App. 4.

A number of years earlier, a different military judge, Judge Lanny J. Acosta, Jr., Colonel, U.S. Army, also issued a ruling on Production 79. In his 2021 ruling (AE 448C (Al-Nashiri)), Judge Acosta provided additional insight on whether the government met its discovery obligation:

[T]he Government retains the responsibility to determine what information it must disclose in discovery. Absent sufficient evidence that the Government has been derelict in exercising that important responsibility, the [military judge] will not second-guess the decision by the Government or [ ] conduct a review of every discovery determination made by Trial Counsel. Here, the Defense has not demonstrated that the Government failed to meet its obligation to produce information that is material to the preparation of the Defense in Production 79.

Gov't’s App. 34.

The military judge currently presiding over the commission concluded that “[d]iscovery may only be compelled if the information sought ‘is both relevant and material—in the sense that it is at least helpful to’ the Defense.” App. 4 (quoting Al Odah v. United States, 559 F.3d 539, 544 (D.C. Cir. 2009)). Ultimately, he determined at AE 637D that the information redacted by the government from Documents #1 and #2 in Production 79 was “simply not relevant.” App. 5.

Regarding Documents #3 and #4 in Production 79, the judge denied defense counsel's motion for judicial in camera review.⁷ App. 5–6 (ruling on Documents #3 and #4 determining that later classification downgrade or release of unredacted document has “no consequence”).

In the petition before us, petitioner asserts the government's redactions (stricter than those applied in the National Archives) represent a “systemic redaction problem.”⁸ Pet'r’s Br. 3. He contends that the respondent applies the “ ‘relevant and helpful’ review standard” for disclosure in Yunis to “withhold[ ] any evidence it deems not ‘helpful’ before that evidence reaches a judge․ No record is created of what is removed. No court—trial or appellate—will ever review those decisions.” Id. at 1–2.

Petitioner further argues that the respondent failed to provide requested discovery of “evidence of Iranian involvement in the bombing of the U.S.S. COLE.” Id. at 26. The military judge had previously ordered that discovery because “[t]he exclusion of trustworthy exculpatory evidence, including evidence of third-party culpability, may violate an accused's right to present a complete defense.” Id. at 27 (alteration in original) (quoting App. 484). The military judge's March 2026 order said:

․ The government must disclose information, the existence of which is known or by the exercise of due diligence may become known to trial counsel, and which [is] material to the preparation of the defense. Rule for Military Commissions (R.M.C.) 701(c)(1). This includes information which reasonably tends to (1) negate the guilt of the accused of an offense charged; (2) reduce the degree of guilt of the accused with respect to an offense charged; or (3) reduce the punishment. R.M.C. 701(e). See also 10 U.S.C. § 949j(a)(1); AE 599K at 2–3 [(ruling on hostilities-related discovery (July 15, 2025))].

App. 484.

II. Ripeness

The first step in consideration of petitioner's writ request is to “assure ourselves of our jurisdiction.” Perry Capital LLC ex rel. Inv. Funds v. Mnuchin, 864 F.3d 591, 603 (D.C. Cir. 2017). This Court has jurisdiction over mandamus petitions for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a). Al-Nashiri III, 921 F.3d at 233.

At least one “jurisdictional doctrine[ ]” bars Al-Nashiri's petition, that of ripeness. In re Al-Nashiri (Al-Nashiri IV), 47 F.4th 820, 824 (D.C. Cir. 2022); see also Khadr v. United States, 67 F.4th 413, 424 (D.C. Cir. 2023) (J. Randolph, concurring) (clarifying Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)). Judge Randolph stated the issue in Steel Co. was: “must Article III jurisdiction (e.g., standing) always be confirmed before a federal court may move on to decide the merits of a controversy?” Khadr, 67 F.4th at 424. He stated that the Supreme Court “answered yes even though a federal court may decide a controversy before determining whether statutory jurisdiction exists.” Id. at 424–25.

Ripeness “requires that the federal courts ‘reserve[ ] judicial power for resolution of concrete and fully crystalized disputes.’ ” Al-Nashiri IV, 47 F.4th at 826 (alteration in original) (quoting Cobell v. Jewell, 802 F.3d 12, 21 (D.C. Cir. 2015)). This principle involves assessment of “both ‘(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.’ ” Id. “Ripeness, along with the prohibition against advisory opinions, stems from the constitutional case or controversy requirement and ‘requires us to consider “the fitness of the issues for judicial review and the hardship to the parties of withholding court consideration.” ’ ” Full Value Advisors, LLC v. SEC, 633 F.3d 1101, 1106 (D.C. Cir. 2011) (citations omitted); see also Nat. Res. Def. Council, Inc. v. EPA, 859 F.2d 156, 165 (D.C. Cir. 1988) (per curiam) (discussing ripeness).

The D.C. Circuit has “held that a case is ripe when it presents a concrete legal dispute and no further factual development is essential to clarify the issues and the issue has crystallized sufficiently for purposes of judicial review.” Al-Nashiri IV, 47 F.4th at 826 (citation modified). In a nutshell, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (citation modified).

Petitioner asserts he will be impaired by the “systematic exclusion of discoverable evidence before [his concern] reaches a judge,” and the appellate record will be “permanent[ly] incomplete[ ],” Pet'r’s Br. 25, 27, potentially hurting his ability to appeal if convicted, see id. at 27–28. Yet, he has not identified any specific documents in his request for relief—that is, the evidence he seeks to discover or the redactions he wants removed from documents already provided. Instead, petitioner wants the court to adjudicate an “abstract disagreement[ ]” about whether the government is imposing a screen on R.M.C. 701(c) discovery. Cobell, 802 F.3d at 21 (internal quotation marks and citation omitted); see Pet'r’s Br. 25. Here, petitioner's request for additional fact-finding directly contradicts his assertion that the issue is ripe for our consideration.⁹ See supra text accompanying note 2 (describing fact-finding remedy at issue). Petitioner's “concern is not fit for judicial decision because it has not yet crystallized into a concrete legal dispute felt by the parties.” Al-Nashiri IV, 47 F.4th at 826.

Petitioner, however, urges that “[t]he legal question—whether prosecutors may apply the heightened Yunis standard as a unilateral threshold—is fully ripe.” Pet'r’s Reply Br. 4 (May 15, 2026). He asserts that his “request for fact-finding addresses only the scope of the remedy, not the legal question itself.” Id. To the extent that assertion is correct, we next review the standards for discovery in both military commissions and analogous jurisdictions. In the end, we reject the premise that Yunis amounts to a heightened discovery standard.

III. Discovery standard in military commissions, United States Courts-Martial, and criminal cases in United States District Courts

Petitioner asserts that the government's discovery practices have unlawfully elevated the threshold of discoverable, non-classified evidence beyond what R.M.C. 701 requires. Pet'r’s Br. 1–2, 8–9.

A. Discovery in the Manual for Military Commissions

“Acting under the President's direction, the Secretary of Defense has broad authority under the Commissions Act to determine the structure and procedures for military commissions.” In re United States, 143 F.4th 411, 424 (D.C. Cir. 2025). Title 10, section 949a(a) of the United States Code, authorizes the Secretary of Defense to prescribe rules for trials by military commissions, subject to some limitation.¹⁰ He has approved the Manual for Military Commissions (2019 ed.), which includes R.M.C. 701(c). This rule on “Discovery” provides:

(c) Examination of documents, tangible objects, reports. After service of charges, upon a request of the defense, the Government shall permit the defense counsel to examine the following materials:

(1) Any books, papers, documents, photographs, tangible objects, buildings, or places, or copies of portions thereof, which are within the possession, custody, or control of the Government, the existence of which is known or by the exercise of due diligence may become known to trial counsel, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial.

R.M.C. 701(c) (emphasis added).

The Forward to the 2019 Manual for Military Commissions states:

Pursuant to 10 U.S.C. § 949a, the M.M.C. is adapted from the Manual for Courts-Martial. This manual applies the procedures and rules of evidence applicable in trials by general courts-martial of the United States except as otherwise provided by chapter 47 or chapter 47A of title 10 U.S.C., or where required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need, consistent with chapter 47A of title 10 U.S.C.

The Discussion to R.M.C. 701(c) states, “For the definition of ‘material to the preparation of the defense’ in subsections (1), (2), and (3), see Yunis, 867 F.2d 617. Evidence introduced by the Government at trial must be disclosed to the accused. See 10 U.S.C. § 949a(b)(A).”

Subparagraphs (a) and (f)(1) of R.M.C. 703, on “Production of witnesses and evidence,” provide:

(a) In general. The defense shall have reasonable opportunity to obtain witnesses and other evidence as provided in these rules.[11]

․

(f) Right to evidence.

(1) In general. Subject to § 949j(c) and R.M.C. 701, each party is entitled to the production of evidence which is relevant, necessary and noncumulative.[12]

Petitioner argues that the respondent has interpreted Rule 701(c) and its Discussion to add an additional threshold for unclassified discovery—that the evidence be not only “material” but “helpful” as well, interpreting “helpful” as an extra, impermissible constraint beyond “material.”¹³ Pet'r’s Br. 18. We disagree with the petitioner's position. The use of the term “helpful” in Yunis does not reduce the scope of discovery in situations where evidence “has arguably crossed [the relevance] threshold.” Yunis, 867 F.2d at 623.

In Yunis, the D.C. Court addressed whether a new hurdle was being created to limit discovery, as follows:

We do not intend by our characterization of the second step as requiring that the evidence be “helpful or beneficial” to direct a new test separate from the second step employed by the District Judge, styled by him as determining the “materiality” of the evidence. We recognize that that term is drawn directly from the Supreme Court's language in Roviaro [v. United States, 353 U.S. 53 (1957)] and [United States v.] Valenzuela-Bernal[, 458 U.S. 858 (1982)]. However, in practical application of the test, the frequent confusion of the terms “materiality” and “relevance” in evidentiary law 14 leads us to the conclusion that the Supreme Court's alternate phrasing of “helpful to the defense of an accused,” provides more guidance in a trial context. Roviaro, 353 U.S. at 60-61.

Id. at 625.

The defendant in Yunis sought release of tape recordings of his conversations with an informant, which the government had withheld as classified. Id. at 619–21.¹⁵ The district court ordered release. Id. The D.C. Circuit found “that only two, or at most three, sentences or sentence fragments in the transcribed conversations of defendant and [the informant] have even the remotest relevance.”¹⁶ Id. at 622. The Court concluded that the government did not need to release the tape recordings. See id. at 625. It commented on the relationship between the Classified Information Procedures Act (CIPA), 18 U.S.C. app. III, § 4, on “Discovery of classified information by defendant,” and Federal Rule of Criminal Procedure 16, on “Discovery and Inspection.” Yunis, 867 F.2d at 621. The Court explained that section 4 of CIPA

creates no new rights of or limits on discovery of a specific area of classified information. Rather it contemplates an application of the general law of discovery in criminal cases to the classified information area with limitations imposed based on the sensitive nature of the classified information. In this case the relevant discovery procedure arises from Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure [renumbered 16(a)(1)(B) in current version of rule], which entitles a defendant to discover “any relevant written or recorded statements made by the defendant.”

Id.

The Yunis Court held “the few statements” from the tape recordings that were “marginally relevant were not sufficiently helpful or beneficial to the defense to overcome the classified information privilege.” Id. at 618. It determined that release of the recordings to the defense was not required. Id. at 618, 624–25. Addressing relevance, the D.C. Circuit added:

Nothing in the classified documents in fact goes to the innocence of the defendant vel non, impeaches any evidence of guilt, or makes more or less probable any fact at issue in establishing any defense to the charges. Therefore, it is at least arguable that even the relevance hurdle is not met.

Id. at 624.

In United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006), another case involving discovery of classified information, our Superior Court maintained the “helpfulness” threshold, stating the information requested must be “ ‘at least “helpful to the defense of [the] accused.” ’ ” Id. at 455 (brackets in original) (quoting Yunis, 867 F.2d at 623 (quoting Roviaro, 353 U.S. at 60–61)). Regarding what type of information is “helpful,” the Court observed:

Brady [v. Maryland, 373 U.S. 83 (1963),] and its progeny hold that due process requires the disclosure of information that is “favorable to the accused, either because it is exculpatory, or because it is impeaching” of a government witness.[17] While Brady information is plainly subsumed within the larger category of information that is “at least helpful” to the defendant, information can be helpful without being “favorable” in the Brady sense ․

Id. at 456–57 (footnote and citations omitted).

The D.C. Circuit essentially defines “helpful” as synonymous with both “material” and “relevant”—not separate from material and relevant and not a matter to be considered in addition to materiality and relevance. See Yunis, 867 F.2d at 625. In other words, helpfulness does not create a new consideration in discovery litigation or an addition to materiality and relevance. As stated supra, the Court explained that the “frequent confusion of the terms ‘materiality’ and ‘relevance’ in evidentiary law leads us to the conclusion that the Supreme Court's alternate phrasing of ‘helpful to the defense of an accused,’ provides more guidance in a trial context.” Id. (footnote omitted) (quoting Roviaro, 353 U.S. at 60–61).

Here, the trial counsel's written response to the military judge's question about his basis for redactions, phrased in the disjunctive as “relevant, material, or helpful,” App. 37, is not dispositive. Even if redactions may be based on lack of (i) relevance or (ii) materiality or (iii) helpfulness, alone, the petitioner has failed to clearly demonstrate, in fact, the exclusion of such evidence. For example, the petitioner has not clearly established the withholding of information in Production 79 that is both “relevant” and “material” solely because it was nonetheless not “helpful.”

Thus, the Discussion to R.M.C. 701(c) incorporating the Yunis standard to define “material to the preparation of the defense” does not elevate the threshold of discoverable evidence, whether classified or unclassified, beyond the text of Rule 701(c).

Petitioner's argument to the contrary lacks merit. Rule 701(c)’s incorporation of Yunis by reference to define “material” does not render the entirety of CIPA procedures applicable to unclassified discovery. More specifically, the rule's incorporation of Yunis does not shift responsibility to the military judge to then review every document withheld in discovery. The procedures of 10 U.S.C. § 949p-1 to -7 and Mil. Comm. R. Evid. 505 only apply if the government invokes the classified information privilege. Submission of the declaration invoking the privilege is a condition precedent to the military judge then “determin[ing] that such classified information would be noncumulative, relevant, and helpful.” 10 U.S.C. § 949p-4(a)(2); Mil. Comm. R. Evid. 505(f)(1)(B); see Yunis, 867 F.2d at 622 (noting that “further inquiry is in order before discovery of classified information should be ordered” (emphasis added)).

The military judge is neither expected nor required to personally assess materiality—that is, the relevance and helpfulness of every document potentially reviewed by the government in fulfilling its prosecutorial discovery responsibilities under Rule 701(c).

B. Unclassified discovery in courts-martial

The Preamble to the Manual for Military Commissions states, “The judicial construction and application of the U.C.M.J., [Uniform Code of Military Justice,] while instructive, are not of their own force binding on military commissions. MMC, pt. I, ¶ 1(a) (citing 10 U.S.C. § 948b(c)). “[C]hapter 47A of title 10, United States Code, provides that the Secretary of Defense may prescribe pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission.” Id. at ¶ 1(d) (citing 10 U.S.C. § 949a(a)). The Preamble to the Manual concludes:

Departures from the rules of evidence and procedure applicable in trials by general courts-martial of the United States reflect the Secretary's determinations that these departures are required by the unique circumstances of the conduct of military and intelligence operations during hostilities or practical need consistent with chapter 47A, title 10, United States Code. Just as importantly, they provide procedural and evidentiary rules that not only comport with chapter 47A of title 10, United States Code, and ensure protection of classified information, but extend to the accused all the judicial guarantees which are recognized as indispensible [sic] by civilized peoples as required by Common Article 3 of the Geneva Conventions of 1949.

Id. at ¶ 2.

With this in mind, while “not of their own force binding,” we consider the analogous provisions of the Manual for Courts-Martial and interpretive authority related to unclassified discovery. Rule for Courts-Martial (R.C.M.) 701 in the Manual for Courts-Martial, United States (2024 ed.), on “Discovery,” provides:

(a) Disclosure by trial counsel. Except as otherwise provided in R.C.M. 701(f) [on “Information not subject to disclosure”] and (g)(2) [on “Protective and modifying orders”], and unless previously disclosed to the defense, trial counsel shall provide the following to the defense:

․

(2) Documents, tangible objects, reports.

(A) After service of charges, upon request of the defense, the Government shall permit the defense to inspect any books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies of portions of these items, if the item is within the possession, custody, or control of military authorities and—

(i) the item is relevant to defense preparation;

(ii) the Government intends to use the item in the casein-chief at trial;

(iii) the Government anticipates using the item in rebuttal; or

(iv) the item was obtained from or belongs to the accused.

(Emphasis added.)

The Discussion to R.C.M. 701 ¹⁸ does not elaborate on or define what is “relevant to defense preparation,” the phrase used in R.C.M. 701(a)(2)(A)(i). Nor does it suggest applicability of any case law. The Discussion states:

The purpose of this rule is to ensure the prompt, efficient, and fair administration of military justice by encouraging early and broad disclosure of information by the parties. Discovery in the military justice system is intended to eliminate pretrial gamesmanship, minimize pretrial litigation, and reduce the potential for surprise and delay at trial. Parties to a court-martial should consider these purposes when evaluating pretrial disclosure issues. In addition to this rule, other sources, to include other Rules for Courts-Martial, case law, and rules of professional conduct, may require disclosure of additional information or evidence.

R.C.M. 701(a)(1).

Subsections (a) and (e)(1) of R.C.M. 703, on “Production of witnesses and evidence,” provide:

(a) In general. The prosecution, defense, and court-martial shall have equal opportunity to obtain witnesses and evidence, subject to the limitations set forth in R.C.M. 701, including the benefit of compulsory process.

․

(e) Right to evidence.

(1) In general. Each party is entitled to the production of evidence which is relevant and necessary.

In the military justice system, an appellate court “review[s] a military judge's ruling on a request for production of evidence for an abuse of discretion.” United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). The United States Court of Appeals for the Armed Forces summarized the court-martial standard for discovery as follows:

“Each party is entitled to the production of evidence which is relevant and necessary.” R.C.M. 703(f)(1). Military Rule of Evidence 401 ․ defines relevant evidence as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence is “necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way on a matter in issue.” R.C.M. 703(f)(1) discussion. The burden of persuasion on a motion for appropriate relief is on the moving party. R.C.M. 905(c)(2)(A), 906(b)(7).

Id. Furthermore, in the military justice context, relevance and helpfulness to the accused are used to assess whether the government's failure to disclose discovery is prejudicial. See, e.g., United States v. Braum, No. 25-0046, 2026 CAAF LEXIS 343, at *9 (Apr. 8, 2026).¹⁹

Defense counsel, as the moving party for production of evidence under R.C.M. 703, have the burden to show as a threshold matter that the requested material in fact exists. See United States v. Warda, 84 M.J. 83, 91 (C.A.A.F. 2023) (citing Rodriguez, 60 M.J. at 246). Rule for Courts Martial 701 requires the prosecution to “engage in ‘good faith efforts’ to obtain requested material.” United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999) (citation omitted).

The Court of Appeals for the Armed Forces has expressed the government's “due diligence” duty to discover evidence releasable to the defense in the following way:

Trial counsel must exercise due diligence in discovering such reports not only in his possession but also in the possession, control, or custody of other “military authorities” and make them available for inspection. Thus, trial counsel ․ ha[s] a duty to seek out and examine the ․ evidence in the possession of military investigative authorities which [is] favorable to the defense.

United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1998) (ellipses in original) (citation omitted). The United States Army Court of Criminal Appeals has explained some practicalities regarding how due diligence works in the production of evidence:

A defense counsel may ․ rely on a trial counsel's representations without resorting to litigation ․ If a trial counsel informs a defense counsel that there is no responsive information to a request, the defense counsel may assume that the trial counsel exercised due diligence before making that determination.

United States v. Shorts, 76 M.J. 523, 530 (Army Ct. Crim. App. 2017).

The respondent acknowledges that compliance with discovery responsibilities is a “fundamental prosecutorial role.” Resp't’s Br. 31. We see no evidence of a failure to comply with this requirement.

C. Unclassified discovery in federal criminal cases

In United States District Court criminal trials, Federal Rule of Criminal Procedure (Federal Rule) 16(a)(1)(E)(i)²⁰ is the counterpart to R.M.C. 701(c). Federal Rule 16(a) contains the same standard for release of discovery as in R.M.C. 701(c), that is, the item must be “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i); see supra note 20 (providing text of rule). To compel discovery under Federal Rule 16(a), “[t]here must be a showing of a tenable relationship between the materials sought and the preparation of the defense.” United States v. Poindexter, 727 F. Supp. 1470, 1480 (D.D.C. 1989).²¹

Materiality means “there must be some indication that the pretrial disclosure would have enabled the defendant significantly to alter the question of proof in his favor.” Id. (quoting United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1978)); supra note 20 (citing United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993), for same proposition). The D.C. Circuit also has held that Federal Rule 16(a) discovery includes material evidence

if there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, or assisting impeachment or rebuttal. Although the materiality standard is not a heavy burden, the Government need disclose Rule 16 material only if it enables the defendant significantly to alter the quantum of proof in his favor.

United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996) (citation modified).

Much like the military judge did in this case, civilian federal courts have incorporated the “relevant and helpful” construction in their discovery decisions involving Federal Rule 16. See, e.g., United States v. Baker, 453 F.3d 419, 425 (7th Cir. 2006). The Baker court stated:

The only question is whether the disputed information was material to the preparation of Baker's defense, i.e., was it exculpatory or helpful for impeachment? The answer is no. See 2 Charles Alan Wright, Federal Practice & Procedure § 254 (3d ed. 2000) (“to satisfy the requirement of [Rule 16] materiality a defendant must demonstrate some indication that the pretrial disclosure of the disputed evidence would enable defendant significantly to alter the quantum of proof in his or her favor”). Since the answer is no, Baker has not demonstrated an abuse of discretion in the district court's conclusion that the disputed information was immaterial.

Id. (brackets in original; bold emphasis added); e.g., Roviaro, 353 U.S. at 60–61 (“Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [government's] privilege must give way.” (emphasis added)); United States v. Prueitt, 540 F.2d 995, 1003 (9th Cir. 1976) (“[T]he government's privilege to withhold an informer's identity must give way where his identity is ‘relevant and helpful to the defense of the accused, or is essential to a fair determination’ of his case” (emphasis added) (quoting United States v. Kelly, 449 F.2d 329, 330 (9th Cir. 1971))); United States v. Brenneman, 455 F.2d 809, 811 (3rd Cir. 1972) (per curiam) (“In order to tip the scales in favor of disclosure, there must be some indication that access to the informer may be ‘helpful to the defense of an accused’ or ‘essential to a fair determination of a cause.’ ” (emphasis added) (quoting Roviaro, 353 U.S. at 60–61)).

In United States v. Marshall, 132 F.3d 63 (D.C. Cir. 1998), the court considered whether the helpfulness standard in Yunis extended to inculpatory or impeachment information. Marshall was charged with selling cocaine to an informant; the defense counsel contended in his opening statement that the defendant was misidentified. Id. at 65. During his case in chief, the prosecutor proffered jail visitation records, which were not provided in discovery to the defense. Id. at 66. The trial judge admitted the jail visitation records over the defense opposition to the purported discovery violation based on lack of prejudice. Id. at 66–67.

The D.C. Circuit concluded that the jail visitation records were inculpatory, undercut the misidentification defense, and should have been disclosed to the defense. Id. at 67–68. It explained that evidence helpful to an accused includes both inculpatory and exculpatory evidence, id., and “it is just as important to the preparation of a defense to know its potential pitfalls as it is to know its strengths,” id. at 67. Such evidence, it said, must be provided to the defense “as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Id. at 68 (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993).

The Marshall Court, however, also observed:

To give rise to a disclosure obligation, the evidence's materiality must, of course, be evident to a reasonable prosecutor. The prosecutor need not guess that evidence may become material as a consequence of a defendant's not-yet-revealed strategic decisions. Nor must the prosecutor assume that the defense will make false assertions about the facts, hen[c]e making relevant contrary evidence that would not have been relev[a]nt had the defense adhered to the truth.

Id. at 69 n.2. This observation by our Superior Court militates against the relief the petitioner seeks here.

D. Petitioner's additional concerns about discovery

Petitioner objects to the government making the initial decision on which evidence is discoverable, stating:

By allowing the Prosecution to apply Yunis as a pre-disclosure screen, the Commission substituted a heightened privilege standard for the general materiality standard that the MCA guarantees. The consequence is that evidence the [P]rosecution does not consider “helpful” is withheld before it reaches a judge. The Commission's error goes to the integrity of the record. What is screened out never enters the record, and neither this Court nor any Article III court will be able to assess those withholding decisions on appeal, foreclosing avenues of meaningful appellate review set forth in the MCA.

Pet'r’s Br. 8; see also id. at 18 (stating similar), 30–31 (arguing appropriateness of writ).

Petitioner's contention lacks merit. The process the military judge employed for handling discovery is routinely used in federal courts:

Ordinarily, the government alone determines whether material in its possession must be turned over to a defendant. When the defendant requests exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963), for example, “the government decides which information must be disclosed.” “Unless the defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final.”

United States v. Campa, 529 F.3d 980, 995 (11th Cir. 2008) (parallel citations and citations omitted).

The military judge observed in his 2025 ruling on the defense motion for judicial in camera review of discovery that “R.M.C. 701(c) contemplates an initial determination by the Government of the relevance, materiality, helpfulness, and cumulativeness of information potentially subject to discovery. If information is not relevant, it is not discoverable.” App. 4, 9–10 (stating same in his January 2026 ruling on defense privilege log motion); see supra note 2 (regarding the two rulings). During the discovery process, the state makes the initial determination of the evidence that must be disclosed. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (“[U]nless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final ․” Id.); United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988) (“[T]he government typically is the sole judge of what evidence in its possession is subject to disclosure. If it fails to comply adequately with a discovery order ․ it acts at its own peril.”), cited in United States v. Brooks, 996 F.2d 1500, 1505 (D.C. Cir. 1992).

Petitioner does not provide any authority supporting the notion that the military judge must conduct a secondary pre-disclosure screening of the government's unclassified discovery. Indeed, the authorities cited above establish that the relief he seeks is not “clear and indisputable.” Cheney, 542 U.S. at 367 (citation modified).

Petitioner suggests that we take various prophylactic measures without including them in his conclusion at Part IV of his brief. He proposes that we direct the government “to produce a log of all instances in which it had presented ‘already-redacted original documents’ to the judge; ․ identify the ․ basis for each withholding; and ․ order the preservation of all original, unredacted source materials in the record to enable future reviewing courts to assess any substitutions or omissions.” Pet'r’s Br. 5 (quoting App. 41 (defense motion on privilege log)). This proposed accounting in the record for every item or portion thereof withheld from discovery by a prosecutor finds no support in any of the systems described above, whether military commissions, courts-martial, or criminal trials in district courts. Petitioner's suggested prophylactic measures are far from the “clear and indisputable” right to relief required for us to intervene at this stage.

IV. Failure to satisfy the three Cheney conditions

Mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’ ” Cheney, 542 U.S. at 380 (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). The remedy is limited to “exceptional circumstances amounting to a judicial ‘usurpation of power,’ or a ‘clear abuse of discretion.’ ” Id. at 390 (first quoting Will v. United States, 389 U.S. 90, 95 (1967); and then quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)). The three “Cheney conditions” that must be satisfied prior to issuing a writ are:

First, “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires,” ․ Second, the petitioner must satisfy “ ‘the burden of showing that [his] right to issuance of the writ is “clear and indisputable.” ’ ” Third, ․ the issuing court, in the exercise if its discretion, must be satisfied that the writ is appropriate under the circumstances.

542 U.S. at 380–81 (brackets in original; emphasis added) (citations omitted).

We first conclude that petitioner has other adequate means to obtain the relief he requests. If he does not receive the discovery he requests, and if he is convicted, petitioner will have ample opportunity to challenge the commission's ruling on direct appeal. Al-Nashiri IV, 47 F.4th at 827 (“As we have explained to Al-Nashiri before, ‘[m]andamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.’ ” (alteration in original) (quoting In re Al-Nashiri (Al-Nashiri I), 791 F.3d 71, 78 (D.C. Cir. 2015))); see In re Papandreou, 139 F.3d 247, 250 (D.C. Cir. 1998) (“Lax rules on mandamus would undercut the general rule that courts of appeals have jurisdiction only over ‘final decisions ․’ and would lead to piecemeal appellate litigation.” (citation omitted)). The military judge's rulings, to include the legal principles he applied, are and will remain part of the record, and his findings and conclusions will be subject to direct appellate review in the ordinary process.

When direct appeal from final judgment is available, petitioner “must identify some ‘irreparable’ injury that will go unredressed if he does not secure mandamus relief.” In re Nurjaman, 679 F. Supp. 3d 1227, 1255 (CMCR 2023) (quoting Al-Nashiri I, 791 F.3d at 79). “The fact that petitioner might have to wait until after his trial to obtain relief does not, in and of itself, warrant interlocutory interference with ongoing lower proceedings.” Id. (citing see Parr v. United States, 351 U.S. 513, 519–20 (1956)). “[E]xtraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial.” In re Flynn, 973 F.3d 74, 79 (D.C. Cir. 2020) (en banc) (per curiam) (quoting Bankers, 346 U.S. at 383); see also In re Nurjaman, No. 23-1294, 2024 U.S. App. LEXIS 15857, at *12 (D.C. Cir. June 28, 2024) (per curiam) (denying writ of mandamus because desired remedy was potentially available in the military commission or, alternatively, a post-judgment direct appeal); Resp't’s Br. 22 n.130 (citing authority for post-trial remedy regarding additional discovery).²²

Turning to the second Cheney condition, as the D.C. Circuit has previously stated, “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) (alteration in original) (citation omitted). Petitioner has not given us cause to deviate from that principle here; rather, the overwhelming body of authority discussed above, in detail, contradicts his position. E.g., id. at 369 (“[A] petitioner's right to relief is ‘clear and indisputable’ where he or she can point to ‘cases in which a federal court has held that’ relief is warranted ‘in a matter involving like issues and comparable circumstances.’ ” (quoting Doe v. Exxon Mobil Corp., 473 F.3d 345, 355 (D.C. Cir. 2007))); Republic of Venezuela v. Phillip Morris, Inc., 287 F.3d 192, 199 (D.C. Cir. 2002) (denying relief when petitioner “identif[ies] no precedent of this court or of the Supreme Court even suggesting” the correctness of its merits position); In re Jefferson Parish, 81 F.4th 403, 409 (5th Cir. 2023) (“[T]he writ will not issue to correct a duty that is to any degree debatable.” (quoting United States v. Denson, 603 F.2d 1143, 1147 n.2 (5th Cir. 1979) (en banc))). Petitioner has therefore failed to demonstrate that his right to issuance of the writ is clear and indisputable.

Assuming arguendo that petitioner had satisfied the first and second Cheney conditions, we would still find that he is not entitled to relief. The third Cheney condition requires this court, in the exercise of its discretion, to be satisfied that the writ's issuance “is appropriate under the circumstances.” 542 U.S. at 381.

Petitioner cites three cases in which the D.C. Circuit granted the petitions for writs of mandamus and vacated the district court orders relating to depositions of foreign officials, privileged communications, or grand jury information. Pet'r’s Br. 9, 10 & n.35 (citing In re Kellogg Brown & Root, Inc., 756 F.3d 754, 761–62 (D.C. Cir. 2014) (vacating district court's discovery order, stating “appeal after final judgment will come too late because the privileged communications will already have been disclosed pursuant to the district court's order” thus leaving no adequate remedy on appeal); In re Sealed Case, 151 F.3d 1059, 1075–76 (D.C. Cir. 1998) (vacating district court's discovery order and establishing procedures for determining facts involving alleged violation of grand jury secrecy rules); In re Papandreou, 139 F.3d at 252 (vacating district court's authorization of depositions “[b]ecause petitioners are representatives of a foreign sovereign resisting a discovery order on grounds of sovereign immunity,” and thus “they satisfy mandamus's requirement that no other adequate means of relief be available”)).

These cases are distinguishable from petitioner's case. Petitioner's cited cases involve grants of petitions for writs of mandamus to stop trial judges from compelling discovery of information because there were sound reasons for limiting release of such information and release could result in irreparable harm, or no other adequate means of relief was available. See In re Kellogg Brown, 756 F.3d at 760–61, 764; In re Sealed Case, 151 F.3d at 1065–67; In re Papandreou, 139 F.3d at 252. Whereas, in the instant case, (i) petitioner is seeking information through the discovery process, and (ii) we do not discern any irreparable harm to petitioner of waiting for direct appeal from final judgment. See In re Flynn, 973 F.3d at 79.

V. Conclusion

Petitioner has failed to demonstrate that: (1) the government's application of “relevant and helpful” has resulted in the improper withholding of evidence that would otherwise be “material” to his defense; and (2) the existing military commission procedures, which include the availability of judicial in camera review of withheld discovery, where appropriate, are inadequate. Petitioner does not provide sufficient support for us to order additional procedures beyond those required in the Military Commissions Act or Manual for Military Commissions.²³

We first conclude petitioner has not established that the discovery issues he presents are ripe. See Al-Nashiri IV, 47 F.4th at 826–27. Second, we conclude petitioner has not satisfied the stringent conditions that must be met before we may issue a writ of mandamus and prohibition. He failed to show his right to the writ is “clear and indisputable.” Cheney, 542 U.S. at 381 (citation modified); In re Hawsawi, 955 F.3d at 156 (quoting Al-Nashiri III, 921 F.3d at 233).

Therefore, upon consideration of the briefs by the parties and the record, it is hereby

ORDERED that petitioner's and respondent's motions to attach the documents in their appendices are GRANTED; and it is

FURTHER ORDERED that petitioner's and respondent's motions to submit oversized briefs are GRANTED; and it is

FURTHER ORDERED that the petition for a writ of mandamus and prohibition is DENIED.

FOR THE COURT:

Mark Harvey Clerk of Court, U.S. Court of Military Commision Review

FOOTNOTES

1.   The petitioner's appendix is cited as “App.” and the respondent's appendix is cited as “Gov't’s App.” Appellate exhibit is cited as “AE.”

2.   Petitioner's mandamus petition arises from two military commission rulings, AE 637D, issued on October 16, 2025, on a defense motion for a judicial in camera review of the government's discovery, App. 3 (Apr. 10, 2026), and AE 654C (Corr.), issued on January 23, 2026, on a defense motion to compel the government to provide a privilege log, App. 7.

3.   Military Commission Rule of Evidence 505, Manual for Military Commissions, United States (MMC) (2019 ed.), governs the procedures and standards for use of classified information in military commissions. Rule 505 is predicated on a civilian counterpart, the Classified Information Procedures Act (CIPA), 18 U.S.C. app. III. See Mil. Comm. R. Evid. 505(a)(4). Military Commission Rule of Evidence 505(d), on “Pretrial conference,” provides in relevant part, as follows:(1) Motion. At any time after service of charges, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.(2) Conference. Following a motion under Mil. Comm. R. Evid. 505(d)(1), or sua sponte, the military judge shall promptly hold a pretrial conference. Upon request by either party, the court shall hold such conference ex parte to the extent necessary to protect classified information from disclosure, in accordance with the practice of the Federal courts under the Classified Information Procedures Act (18 U.S.C. App.).

4.   Title 10, section 949p-4(a)(2) of the United States Code, states:[T]he military judge may not authorize the discovery of or access to such classified information unless the military judge determines that such classified information would be noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing, in accordance with standards generally applicable to discovery of or access to classified information in Federal criminal cases.

5.   Petitioner has challenged the jurisdiction of his military commission under 10 U.S.C. § 950p(c), which states, “Common circumstances. An offense specified in this subchapter [10 USCS §§ 950p et seq.] is triable by military commission under this chapter [10 USCS §§ 948a et seq.] only if the offense is committed in the context of and associated with hostilities.” (Alterations in original.) “Hostilities” are defined as “any conflict subject to the laws of war.” 10 U.S.C. § 948a(9). Petitioner has argued that his alleged offenses occurred before the start of hostilities between the United States and al Qaeda. See In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110, 136–38 (D.C. Cir. 2016) (discussing start of hostilities). The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) denied Al-Nashiri's writ of mandamus petition “[b]ecause Al-Nashiri [could not] show that his conduct clearly and indisputably took place outside the context of hostilities.” Id. at 138. Al-Nashiri did not raise the issue of a discovery violation in Al-Nashiri II.

6.   The military judge has discretion to order a hearing or written briefings, as necessary, to ensure petitioner receives discovery to which he or she is entitled, including ex parte, in camera hearings and briefings. See Rule for Military Commissions (R.M.C.) 703(f)(4)(C) (authorizing court order for in camera inspection after referral); United States v. Clegg, 740 F.2d 16, 17–18 (9th Cir. 1984) (holding court has discretion over discovery of classified and unclassified documents by ex parte, in camera review); United States v. Libby, 429 F. Supp. 2d 18, 22, 26 (D.D.C. 2006) (holding court has discretion over whether to accept ex parte submissions under CIPA); United States v. North, 698 F. Supp. 322, 324 (D.D.C. 1988) (court hearing an ex parte, in camera presentation by defense counsel to aid in court's review of defense's need for certain classified material).

7.   The judge stated in his ruling (AE 637D) that Documents #3 and #4 in Production 79 had not been submitted for his review and he did not review them. App. 5. He explained: “Document #3 was produced to the Defense in 2025 with minimal redactions. Document #4 is a memorandum of an interview with Retired General Tommy Franks, of which an unredacted version was later released by the National Archives.” App. 5–6 (citations omitted); see also App. 36–37 (respondent stating similar in response to interim order).

8.   Petitioner did not ask us to direct removal of the redactions applied to the Production 79 documents or any other specific documents. See Pet'r’s Br. 32–33 (Apr. 10, 2026).

9.   Petitioner takes potentially contradictory positions on whether the military judge's rulings at AE 637D and AE 654C are the sole basis for his writ petition or whether the two rulings are representative of a larger, more systemic issue. Compare Pet'r’s Br. 2 (“This petition arises from two rulings—AE 637D and AE 654C ․” (citation footnotes omitted)), and Pet'r’s Reply Br. 3–4 (May 15, 2006) (“The challenged rulings—AE 637D and AE 654C—are final as to the legal standard they apply.”), with Pet'r’s Br. 3 (“The Defense focused the motion on four specific documents drawn from what it considered a broader and improper use of R.M.C. 701.”). Regardless, as discussed infra, petitioner has an alternate means of relief, namely, direct appellate review of the military judge's trial ruling, to include his findings of fact and legal principles. Either way, the record does not establish that the right to the writ is “clear and indisputable” as required by Cheney v. U.S. District Court, 542 U.S. 367, 381 (D.C. Cir. 2004) (citation modified), discussed further below.

10.   Title 10, section 949a of the United States Code, on “Rules,” provides:(a) Procedures and rules of evidence. Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter [10 USCS §§ 948a et seq.] may be prescribed by the Secretary of Defense. Such procedures may not be contrary to or inconsistent with this chapter [10 USCS §§ 948a et seq.]. Except as otherwise provided in this chapter [10 USCS §§ 948a et seq.] or chapter 47 of this title [10 USCS §§ 801 et seq.], the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter [10 USCS §§ 948a et seq.].(b) Exceptions.(1) In trials by military commission under this chapter [10 USCS §§ 948a et seq.], the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter [10 USCS §§ 948a et seq.].(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter [10 USCS §§ 948a et seq.] shall include, at a minimum, the following rights of the accused:(A) To present evidence in the accused's defense, to cross-examine the witnesses who testify against the accused, and to examine and respond to all evidence admitted against the accused on the issue of guilt or innocence and for sentencing, as provided for by this chapter [10 USCS §§ 948a et seq.].(Brackets in original.)

11.   The Discussion to R.M.C. 703(a) states, “The opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States under article III of the Constitution.”

12.   The Discussion to R.M.C. 703(f)(1) provides:Relevant evidence is necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way on a matter in issue. A matter is not in issue when it is stipulated as a fact. As to the discovery of classified information or other government information, see Mil. Comm. R. Evid. 505 and 506.

13.   Petitioner contends that by applying United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989), “as a pre-disclosure screen ․ [the government] substituted the heightened privilege standard” applicable to discovery of classified information under Mil. Comm. R. Evid. 505 “for the broad materiality inquiry” applicable to discovery of nonclassified information under R.M.C. 701(c)(1). Pet'r’s Br. 18.

14.   Appearing as footnote 11 in the original text we quote from Yunis, 867 F.2d at 625, the D.C. Circuit included the following citation:See, e.g., J. Weinstein & M. Berger, Weinstein's Evidence § 401[03], at 401-18, 19, and authorities collected therein (discussing the rejection of the terms “material” or “immaterial” by the Framers of the Federal Rules and others as being “ambiguous”); E. Cleary, McCormick on Evidence (3d ed. 1984) § 185 at 541 (treating materiality as a preliminary question in the determination of relevance rather than as a separate second inquiry). (Alteration in original.)

15.   See United States v. Smith, 780 F.2d 1102, 1105–06 (4th Cir. 1985) (detailing procedure for admissibility of classified information under CIPA).

16.   The district court found that the taped recordings were “just pure trivia.” Yunis, 867 F.2d at 618–19 (citation omitted).

17.   We take no position on whether the Due Process Clause of the 5th Amendment of the United States Constitution applies to discovery issues in petitioner's case. See Al-Hela v. Biden, 66 F.4th 217, 222 (D.C. Cir. 2023) (en banc) (“We hold that we need not decide whether due process protections apply to Guantanamo detainees, because even assuming the Due Process Clause applies, we find that the procedures employed by the District Court to adjudicate Mr. al-Hela's habeas petition satisfy procedural due process․ As with the procedural due process claim, we conclude that even assuming the Due Process Clause applies to Mr. al-Hela, these claims fail on the merits.” (Alteration in original.)).

18.   The discussions to the Rules for Courts-Martial are not part of the Executive Orders approved by the President. See, e.g., Exec. Order No. 14103, 88 Fed. Reg. 50535 (July 28, 2023); Exec. Order No. 14062, 87 Fed. Reg. 4763 (Jan. 26, 2022); Exec. Order No. 13825, 83 Fed. Reg. 9889 (Mar. 1, 2018). “The R.C.M. Discussion is not binding on [the United States Court of Appeals for the Armed Forces] and only serves as guidance.” United States v. Badders, 82 M.J. 299, 305 n.7 (C.A.A.F. 2022). The Manual for Courts-Martial (2024 ed.), pt. I Preamble, ¶ 5, Discussion, provides that the discussions following the Rules for Courts-Martialdo not constitute the official views of the Department of Defense, the Department of Homeland Security, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States, and they do not constitute rules․ Failure to comply with matter set forth in the [discussions] does not, of itself, constitute error, although these materials may refer to requirements in the rules set forth in the Executive Order or established by other legal authorities (for example, binding judicial precedents applicable to courts-martial) that are based on sources of authority independent of the [discussions].(Citations omitted.)The Manual for Military Commissions, however, does not have an analogous provision distinguishing the discussions from the text of its various rules, including the Rules for Military Commissions. Moreover, unlike the Rules for Courts-Martial, the Rules for Military Commissions and discussion portions of the Manual for Military Commissions are both issued by the same authority, i.e., the Secretary of Defense. See 10 U.S.C. § 949a. We do not decide here to what extent the discussion portions of the Manual for Military Commissions are controlling authority. As we have explained above, incorporation by reference of Yunis into the definition of “material to the preparation of the defense” in R.M.C. 701(c) does little more than serve as shorthand for established federal precedent.

19.   On appeal we apply the standards of review of the D.C. Circuit and not necessarily those of the United States Court of Appeals for the Armed Forces (CAAF). See In re United States, 143 F.4th 411, 435 n.10 (D.C. Cir. 2025) (“CAAF decisions, while instructive, do not control our interpretation of the Commissions Act. See 10 U.S.C. § 948b(c) (providing that the Uniform Code of Military Justice generally does not apply to military commissions and that its ‘judicial construction,’ ‘while instructive,’ is ‘not of its own force binding on military commissions’).”). Accordingly, in petitioner's case, we review the military judge's discovery orders “only for abuse of discretion,” United States v. Butler, 924 F.2d 1124, 1130 (D.C. Cir. 1991), and “will not reverse unless the alleged error resulted in prejudice to the defendant[ ]’s substantial rights,” United States v. Riley, 115 F.4th 604, 616 (D.C. Cir. 2024) (alteration in original) (quoting United States v. Mejia, 448 F.3d 436, 444 (D.C. Cir. 2006)).In courts-martial cases, if the defense makes “a specific request” for discovery under Rule for Courts-Martial 701(a) and Article 46, Uniform Code of Military Justice, 10 U.S.C. § 846, and the government errs in denying it, the standard of appellate review is harmless beyond a reasonable doubt. United States v. Coleman, 72 M.J. 184, 187 (C.A.A.F. 2013) (citing United States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004)). Denial of such discovery “is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial.” Id., quoted in United States v. Braum, No. 25-0046, 2026 CAAF LEXIS 343, at *9 (C.A.A.F. Apr. 8, 2026). See generally United States v. Hart, 29 M.J. 407, 409–10 (C.M.A. 1990) (discussing cases regarding tests on failure to provide discovery, including United States v. Bagley, 473 U.S. 667 (1985) (plurality opinion)).

20.   Federal Rule of Criminal Procedure 16(a)(1)(E), on “Documents and Objects,” provides:Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, ․ or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense ․(Second emphasis added.) Materiality under this rule means “[t]here must be some indication that the pretrial disclosure of the disputed evidence would [enable] the defendant significantly to alter the quantum of proof in his favor.” United States v. Lloyd, 992 F.2d 348, 350–51 (D.C. Cir. 1993) (alterations in original) (quoting United States v. Ross, 511 F.2d 757, 762–63 (5th Cir. 1975)), rev'd, in part, on other grounds, 71 F.3d 408, 409, 412–13, (D.C. Cir. 1995) (partially reversing Lloyd due to use of wrong legal standard on motion for new trial based on improper government withholding of documents). “[E]vidence is material as long as there is a strong indication that it will ‘play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.’ ” Id. at 351, quoted in United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996).

21.   United States v. Poindexter, 727 F. Supp. 1470, 1477 (D.D.C. 1989), addressed the discovery rule at Federal Rule of Criminal Procedure 16(a)(1)(C), which is now located at Fed. R. Crim. P. 16(a)(1)(E)(i). Federal Rule of Criminal Procedure 16(a)(1)(C) provided, in relevant part, the following:Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents,․ or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial.․United States v. Marshall, 132 F.3d 63, 66 (D.C. Cir. 1998) (quoting Federal Rule 16(a)(1)(C) (alterations in original; emphasis added).

22.   The respondent cites to see, e.g., United States v. Brooks, 966 F.2d 1500, 1501 (D.C. Cir. 1992) (remanding for search of file for information with potential to reflect on credibility of prior testimony of unavailable witness, which government did not check), and to see generally United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967) (per curiam). Resp't’s Br. 22 n.130 (Apr. 29, 2026).

23.   The volume of classified materials in Al-Nashiri's case is substantial. See App. 268–69 (2019 ruling discussing review of over 30,000 pages of summaries and substitutions provided under Mil. Comm. R. Evid. 505(f)). In a prior petition for a writ of mandamus and prohibition in this case, we considered the methodology for review and release to petitioner of the massive volume of classified discovery. We commented:[Military Commission Rule of Evidence 505(f)(2)(B)] 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.”In re Al-Nashiri, 577 F. Supp. 3d 1285, 1298 (CMCR 2021). We declined to burden the military commission with the additional procedural requirements petitioner sought for judicial reviews and record keeping because those requirements were not required in the Military Commissions Act or Manual for Military Commissions. See id. at 1294 (referencing government argument on absence of such requirements in Act or Manual). We held that petitioner did not “demonstrate a clear and indisputable right to the writ” and the existing procedures were not a “clear abuse of discretion or usurpation of judicial power.” Id. at 1302 (inner quotation marks and citations omitted). We denied the writ. Id.We note the absence of statutory law, case law, or regulatory support for petitioner's three procedural proposals in the instant case. See supra text accompanying note 2 (on remedies requested). For the same reasons detailed in our 2021 decision, immediately preceding, and for the reasons discussed in this opinion, we decline to support petitioner's proposals now before us.

Murdough, Judge: