The D.C. Circuit heard arguments today in the military commission case of In re: Al-Tamir. A mandamus petition from the U.S. Court of Military Commission Review (CMCR), the alleged Al Qaeda operative asked the D.C. Circuit to vacate the proceedings against him due to the behind the scenes job searches of the judicial officers handling his case in Guantanamo. If that sounds familiar to longtime CAAFLog readers, it is because the issues with the Al-Tamir case arose after the D.C. Circuit set the clock back to 2014 in the long-running Al-Nashiri case, where largely identical issues came to light regarding the military judge presiding over that case (full disclosure, I was counsel for petitioner in the Al-Nashiri case).
Much of the days' argument, which ended up doubling the twenty minutes the court had originally allotted, focused on whether throwing Al-Tamir's case out entirely was appropriate given the facts of his case. The Circuit came close, but ultimately declined, to throw out the Al-Nashiri case in 2019, instead choosing to vacate only those proceedings that post-dated the military judge's application for employment in 2014. In Al-Tamir's case, ordering the same relief would effectively throw the case out as a whole because the military judge applied for the immigration judge job only a few weeks after the defendant was arraigned.
Because of that, the CMCR had tried to cut back on Al-Nashiri's remedy. Rather than setting back the clock, the CMCR said that Al-Tamir could seek reconsideration of any decisions the military judge issued during his tenure in the case. Hence, most of the argument today focused on whether reconsidering the tainted rulings was sufficient to remedy the military judge's ethical violations.
The second issue that dominated the morning's argument was a wrinkle not present in the Al-Nashiri case. In addition to the initial military judge in the case applying for jobs with the justice department, the long-serving legal advisor also had been applying for jobs around the government, including with the National Security Division (which, as it happened, argued the case today for the government). What was more, the legal advisor submitted a ruling issued in Al-Tamir's case as his writing sample a fact that had proven decisive in the Al-Nashiri case.
But the legal advisor is not technically the military judge, raising the question of what ethical rules actually govern. And so the Court spent a considerable amount of the time this morning trying to figure out whether the legal advisor was more like one of their clerks, who are generally permitted to search for employment within certain parameters, or more like a special master or magistrate judge, for whom the ethical rules regarding outside employment are far more exacting.