D.C. Circuit splits the difference on judicial disqualification.

As CAAFLog readers may remember, the D.C. Circuit heard argument this past January in a mandamus case to come out of the military commissions with potential relevance to military justice as a whole. Again, the question was whether a military judge serving on one of the military commissions violated judicial ethics by seeking employment elsewhere in the government without telling the parties. In 2019, the Circuit had vacated almost five years of proceedings in the Al-Nashiri case after Col Vance Spath, USAF, had secretly applied for an appointment as an immigration judge. Most recently, the Circuit confronted the same problem with CAPT Kirk Waits, USN, the military judge who initially presided over the case of United States v. Al-Iraqi (aka Nashwan Al-Tamir).

On Friday, the D.C. Circuit issued its decision denying the writ in In re Al-Tamir, though making a few notable holdings along the way that military justice practitioners are likely to find worthy of note. In something of a judicial eye roll, Judge Tatel, who wrote the opinion in both the Al-Nashiri and Al-Tamir cases, started his opinion for the Court by describing the situation as an "unfortunately familiar quandary." 

With no real debate over the merits of whether  CAPT Waits should have disqualified himself, the only real question the Court confronted was the remedy. Tamir had sought to have his case dismissed outright, a remedy the lower military commission courts had declined in favor of permitting Tamir to seek reconsideration of any decision rendered by the military commission that Tamir could show had been tainted by Waits' misconduct. 

At oral argument, the Circuit seemed concerned by the narrowness of the proposed remedy. This led counsel for the government to stipulate from the podium that Tamir could seek to have any ruling reconsidered without making a particularized showing that the ruling was tainted. Tamir suggested that this would still be inadequate, but the Circuit disagreed, finding that the government's concession gave Tamir everything that the vacatur had achieved in Al-Nashiri, "except that it affords al-Tamir the added benefit of allowing him to retain favorable rulings."

A trickier aspect of the case revolved around the job search of Matthew Blackwood, the "supervisory attorney advisor," who had served on Tamir's case for most of the last half-decade. The Court was clearly disturbed by Blackwood's job hunt, but ultimately got stuck on precisely what ethical standards governed an "attorney advisor" in the first place. The government had insisted that attorney advisors should be afforded the lenient rules afforded to judicial law clerks. Tamir had said the ordinary rules of judicial conduct should apply. The Court, for its part, figured that attorney advisors fell somewhere in between and the legal uncertainty over what rules applied proved fatal under the strict mandamus standard that applies in the D.C. Circuit. 

The Court, therefore, held that it needed resolve the issue. "We have some concerns about Blackwood’s failure to disclose to his supervising judges his pursuit of outside employment and his use of his work on the commission in his applications," the Court wrote. However, "we cannot say that his choices 'clearly and indisputably' gave rise to a conflict warranting recusal." The Court accordingly denied relief and left the merits to another day.

Michel Paradis

LOAC Editor