Readers will remember that in 2019, the D.C. Circuit vacated nearly five years of proceedings in the Al-Nashiri military commission case after finding that Col Vance Spath, USAF, violated the rules of judicial conduct by secretly negotiating for a job as an immigration judge while on the bench. As some readers predicted at the time, the Circuit's decision could affect other military justice cases, if military judges had similarly not been careful or candid about their post-retirement job hunts. Well, that day has come.
In the case of Naswan Al-Tamir, another Guantanamo military commission case, the alleged job searches of Captain Kirk Waits, USN, and the long-serving "attorney advisor" on the case (i.e. judicial law clerk) have again raised the concern of the D.C. Circuit. Back in November, the D.C. Circuit issued a stay of proceedings in Al-Tamir's case in order to review the allegations, but then held its own proceedings in abeyance in order to give the Court of Military Commission Review (CMCR) an opportunity to review the merits. In April, the CMCR denied Al-Tamir's challenge on the merits and the Circuit, shortly thereafter, docketed Al-Tamir's case for briefing and argument.
Last Wednesday, Al-Tamir filed his merits brief, in which he argued:
Mandamus may be drastic, and may impose societal costs, but the remedy and the costs are necessary and worth it when the repeated failures of the hybrid military commissions system remain unredressed by the CMCR. This Court decided mandamus was available and appropriate under the circumstances in Al-Nashiri. The same is true here because the same conflict exists here. Al-Nashiri controls. No meaningful distinction exists.
The government's brief is due on September 15, 2020, with the reply due on October 15, 2020. Oral argument has not yet been scheduled but will likely be this winter with a decision following sometime in 2021.
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