United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 11, 2021 Decided April 9, 2021 No. 19-1212 IN RE: NASHWAN AL-TAMIR, PETITIONER On Petition For A Writ of Mandamus and Prohibition Meghan S. Skelton, Senior Litigation Attorney, Office of Military Commissions Defense Organization, argued the cause for petitioner. With her on the petition were Maj. Morgan N. Engling and LCDR Jacob E. Meusch, Attorneys. Danielle S. Tarin, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the opposition was Joseph F. Palmer, Attorney. Before: SRINIVASAN , Chief Judge, TATEL and RAO, Circuit Judges. Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: For the second time, we face the question of what to do about a Guantanamo military commission judge who, while presiding, seeks employment with an entity involved in prosecuting the detainee. That now unfortunately familiar quandary is accompanied in this case by two new ones: the adequacy of the government’s offer to 2 reconsider de novo any commission orders the detainee requests, and the ethical consequences of an attorney advisor’s search for outside employment while assisting the judges presiding over the detainee’s commission. In a petition for a writ of mandamus, the detainee urges us to dissolve the commission. But because the government’s offer affords petitioner an “adequate means” to attain the relief he seeks and because the advisor’s job search did not “clear[ly] and indisputabl[y]” disqualify the judges he served, we deny the petition. In re Al-Nashiri (Al-Nashiri III), 921 F.3d 224, 233 (D.C. Cir. 2019) (internal quotation marks omitted). I. Our court has repeatedly described the structure of the Guantanamo Bay military commissions, which “is the product of an extended dialogue among the President, the Congress and the Supreme Court.” In re al-Nashiri (al-Nashiri I), 791 F.3d 71, 73 (D.C. Cir. 2015). For purposes of this case, readers need understand only a few key features. The Military Commissions Act of 2006 (MCA) establishes a system “based upon the procedures for trial by general courts- martial under [the Uniform Code of Military Justice].” 10 U.S.C. § 948b(c). The revised MCA provides that a convening authority—either the Secretary of Defense or an officer or official designated by the Secretary—may convene a military commission. Id. § 948h. A military judge presides over commission proceedings, id. § 948j(a), with assistance from civilian and military attorneys working as attorney advisors. Importantly for the issues before us, the Defense Department is not the only agency with a substantial role in the military commission system. Although the “MCA gives the Secretary of Defense, not the Attorney General, authority to convene military commissions, . . . the Attorney General plays 3 an important institutional role in military commissions more generally.” Al-Nashiri III, 921 F.3d at 236. The MCA provides that “‘the Secretary of Defense, in consultation with the Attorney General’ [shall] establish rules for ‘trials by military commission’” and that “appellate counsel appointed by the Secretary of Defense [may] ‘represent the United States’ …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals