## Facts

- Abd Al-Rahim Al-Nashiri faced capital charges before a military commission at Guantánamo Bay.
- The presiding military judge, Colonel Vance Spath, applied for employment as a Department of Justice (DOJ) immigration judge early in his tenure.
- Spath did not disclose his DOJ application or subsequent employment negotiations to Al-Nashiri or counsel while continuing to preside over the case.
- DOJ had institutional and case-specific involvement connected to the commission system and Al-Nashiri’s prosecution, including participation in related appellate litigation and the presence of a DOJ attorney on the prosecution team.
- During Spath’s tenure, disputes arose over defense counsel withdrawal; Spath issued orders compelling certain defense counsel to remain and refusing to recognize their attempted withdrawal.
- After Spath received and negotiated a DOJ job offer for over a year, he agreed to a start date and then indefinitely abated the commission proceedings.
- Al-Nashiri sought relief in the Court of Military Commission Review (CMCR), including vacatur of Spath’s orders and discovery regarding the employment negotiations; the CMCR declined to grant relief and directed the matter to be developed before the commission.
- Al-Nashiri and two former defense counsel filed consolidated mandamus petitions in the D.C. Circuit seeking vacatur of Spath’s orders.

## Issues

1. Whether a military commission judge’s undisclosed DOJ employment application and negotiations, while DOJ had a discernible interest in the matter, created a disqualifying appearance of partiality requiring vacatur of the judge’s orders.
2. Whether mandamus was an appropriate remedy to correct the alleged disqualification and the CMCR’s refusal to grant relief.
3. Whether the separate mandamus petition challenging orders denying defense counsel withdrawal required relief or was rendered moot by any broader vacatur.

## Decision

- The D.C. Circuit granted Al-Nashiri’s petition for a writ of mandamus.
- The court held that Spath’s undisclosed DOJ job application and negotiations created a disqualifying appearance of partiality.
- The court vacated all orders Spath issued after he applied for the DOJ position.
- The court dismissed the defense counsel petition as moot because vacatur provided complete relief as to the challenged withdrawal-related orders.

## Legal Principles

- A judge must be disqualified when an objective, fully informed reasonable observer would question the judge’s impartiality based on the circumstances.
- Prospective employment discussions with an entity that has a discernible interest or partisan involvement in a proceeding can create an appearance of partiality even absent proof of actual bias.
- Mandamus may issue when there is no adequate alternative remedy, the petitioner’s right to relief is clear and indisputable, and issuance is appropriate to protect the integrity of adjudicative proceedings.
- Where a disqualifying appearance arises and the extent of taint cannot be reliably separated, vacatur of all orders entered after the disqualifying event may be warranted.

## Conclusion

The D.C. Circuit concluded that undisclosed DOJ employment pursuit by the presiding military commission judge, given DOJ’s connections to the prosecution and related litigation, created an appearance of partiality warranting mandamus and vacatur of all post-application orders, thereby mooting the related counsel-withdrawal petition.


In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019)