In re: Nashwan al-Tamir ( 2021 )

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
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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
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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’ in
appeals beyond the [Court of Military Commission Review]
only if ‘requested to do so by the Attorney General.’” Id.
(quoting 10 U.S.C. §§ 949a(b)(1), 950h(b)(2)). And the
regulations governing military commissions “contemplate[]
that the Attorney General will detail Justice Department
lawyers to commission proceedings with some regularity.” Id.
We have therefore described the Attorney General as “a
participant” in a military commission case where he “consult[s]
on commission trial procedures” and may “play a role in
defending any conviction on appeal.” Id. And where the
Attorney General “has loaned out one of his lawyers,” he is “a
participant” in yet another respect. Id.
Ordinarily, a defendant may have a final guilty finding
reviewed by the U.S. Court of Military Commission Review
(CMCR). See In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110,
122 (D.C. Cir. 2016) (citing 10 U.S.C. §§ 950f, 950c). A
defendant may also obtain review in this court after all
proceedings in the military courts have concluded. See 10
U.S.C. § 950g(a)–(b). And, where appropriate, a defendant
may seek a writ of mandamus prior to a final judgment. That is
the situation here, as it was in Al-Nashiri III, where we vacated
all orders a military commission judge issued after the date of
his application for employment as an immigration judge with
the U.S. Department of Justice.
Petitioner Nashwan al-Tamir was apprehended in Turkey
in October 2006. Petitioner’s Br. 5. According to al-Tamir, he
was then “moved to a CIA black site where the United States
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held him incommunicado and tortured him for approximately
six months.” Id. The government then transferred him to the
U.S. Naval base at Guantanamo Bay, where it held him for
seven years without charges. Id. On June 2, 2014, a military
commission was convened to try al-Tamir for war crimes and
for conspiring to commit offenses under the MCA. In
particular, he is alleged to have conspired with Usama bin
Laden and other Al-Qaeda leaders to conduct terrorist attacks
in Afghanistan, Pakistan, and elsewhere. Because al-Tamir was
charged under the name of Abd al Hadi al-Iraqi, the
commission is referred to as the “Hadi commission.”
Navy Captain Kirk Waits presided over al-Tamir’s
commission for nearly two and a half years, from June 2014 to
October 2016. At the outset, the Attorney General detailed an
Assistant U.S. Attorney from DOJ’s National Security
Division as the lead prosecutor. Judge Waits arraigned al-
Tamir on June 18, 2014, during a thirty-three-minute hearing
in which the DOJ prosecutor was the first attorney to speak on
the record. Less than two months later, prior to any other
hearings or substantive orders, Waits applied to be an
immigration judge in DOJ’s Executive Office of Immigration
Review. In his applications for positions in eleven different
cities, he stated that he was the only Navy or Marine Corps
judge detailed to a military commission and identified the Hadi
commission by name. Those applications remained under
consideration for the entire first year of proceedings, but Waits
received no interviews or offers.
In April 2016, while still presiding over the Hadi
commission, Judge Waits applied to be the Deputy Director of
the Navy Office of the Judge Advocate General Criminal Law
Division within the Department of Defense. Again, his
application highlighted his role in the Hadi commission. He
interviewed around May 2016 and received a job offer later that
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year. He accepted and began his new role in January 2017.
Over two years later, after our court’s 2019 decision in Al-
Nashiri III that a military judge’s application for an
immigration judge position created an appearance of bias
requiring recusal, 921 F.3d at 236–37, Judge Waits contacted
the trial judiciary to disclose his employment applications to al-
Tamir and the military commission.
After Judge Waits resigned, two other judges served on al-
Tamir’s commission. Marine Corps Colonel Peter Rubin
presided from November 2016 to June 2018, and Marine Corps
Lieutenant Colonel Michael Libretto presided from June 2018
to January 2020. In January 2020, Judge Libretto recused
himself, citing his intent to retire from the military and his
search for post-retirement employment.
Matthew Blackwood served as a civilian Supervisory
Attorney Advisor for all three judges and began applying for
outside employment while assisting Judge Rubin. We describe
his role and job search in Section II where we consider whether
his conduct provides al-Tamir a separate basis for relief.
Following our decision in Al-Nashiri III and Judge Waits’s
subsequent disclosures, al-Tamir submitted two motions to
Judge Libretto. First, based on Judge Waits’s and Matthew
Blackwood’s job applications, he moved to dismiss all charges
against him. Second, based on Blackwood’s continued
assistance after submitting outside employment applications,
al-Tamir moved to disqualify Judge Libretto.
Responding to the first motion, Judge Libretto agreed that
Judge Waits should have recused himself but declined to
dismiss the charges against al-Tamir. Instead, Judge Libretto
declared that he would reconsider de novo any of Judge Waits’s
decisions that al-Tamir identifies, while leaving intact any
rulings al-Tamir prefers not to have reconsidered. Judge
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Libretto subsequently denied the second motion, ruling that
neither Blackwood’s applications nor his acceptance of
employment disqualified the judges he assisted.
Al-Tamir then sought mandamus relief in the CMCR and,
while that petition was pending, the same relief here. We held
al-Tamir’s petition in abeyance pending the CMCR’s decision.
Per Curiam Order, In re al-Tamir, No. 19-1212 (Nov. 6, 2019).
The CMCR denied al-Tamir’s petition, agreeing with Judge
Libretto that, while Judge Waits ought to have recused himself,
de novo reconsideration of his orders would “adequately
address[] the goal of securing proceedings free from the
appearance of bias.” Al-Iraqi v. United States, 455 F. Supp. 3d
1273, 1316 (CMCR 2020). The CMCR remanded for the
commission to implement that reconsideration remedy. Id. at
1354. Following the CMCR’s decision, briefing and oral
argument proceeded here.
At oral argument, government counsel offered an
important clarification: the government’s proposed remedy
extends to any orders issued by either Judges Rubin or Libretto
that al-Tamir identifies as influenced by Judge Waits’s
decisions. Counsel explained that to have particular post-Waits
orders reconsidered de novo, al-Tamir need only “list the . . .
orders that he believes are affected” by the earlier decision.
Oral Arg. Tr. 24. Pressed on whether al-Tamir would have to
make any threshold showing that a later decision was
influenced by a prior Waits order, counsel made clear that no
such showing was required—al-Tamir “would just have to
identify that order.” Id. at 26. In other words, he need only
“identify an order as having been affected by a prior order
issued by Judge Waits. That’s it.” Id. at 27.
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II.
The MCA imposes a stringent final judgment rule on our
court. We have “exclusive jurisdiction to determine the validity
of a final judgment rendered by a military commission,” but
not “until all other appeals . . . have been waived or exhausted.”
10 U.S.C. § 950g(a), (b). Mandamus provides an exception to
the final judgment rule, and we may therefore “issue a writ of
mandamus now to protect the exercise of our appellate
jurisdiction later.” Al-Nashiri III, 921 F.3d at 233 (internal
quotation marks omitted).
Mandamus, we have explained, “provides an appropriate
vehicle for seeking recusal of a judicial officer during the
pendency of a case, as ordinary appellate review following a
final judgment is insufficient to remove the insidious taint of
judicial bias.” Id. at 233 (internal quotation marks omitted). So
too when “the disqualified adjudicator is gone but his orders
remain.” Id. at 238. That said, we have also stressed that the
MCA’s final judgment rule serves an “important purpose,” and
that we must therefore “faithfully enforce the traditional
prerequisites for mandamus relief.” Id. at 233 (internal
quotation marks omitted).
“[M]andamus is a drastic remedy, to be invoked only in
extraordinary circumstances.” Id. at 237 (internal quotation
marks omitted). “For a court to grant a writ of mandamus, three
conditions must be met.” Id. at 233. First, “the petitioner must
demonstrate that [his] right to issuance of the writ is clear and
indisputable.” Id. (alteration in original) (internal quotation
marks omitted). Second, “the party seeking issuance of the writ
[must] have no other adequate means to attain the relief he
desires.” Id. (alteration in original) (internal quotation marks
omitted). Third, “the issuing court, in the exercise of its
discretion, must be satisfied that the writ is appropriate under
the circumstances.” Id. (internal quotation marks omitted).
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Pursuant to that framework, we consider whether Judge
Waits’s conduct justifies mandamus relief and then whether
Blackwood’s conduct justifies such relief.
Judge Waits
In Al-Nashiri III, we concluded that a military judge was
operating under a disqualifying conflict of interest because,
while presiding over a military commission, he actively sought
employment as an immigration judge with DOJ’s Executive
Office of Immigration Review. We granted mandamus,
vacating all the judge’s orders issued after the date his conflict
arose.
In this case, the government agrees that, under the
principles set forth in Al-Nashiri III, “Judge Waits should have
recused himself when he applied for an immigration judge
position.” Respondent’s Br. 20. The issue now is what to do
about Judge Waits’s failure to do so. The government argues
that its reconsideration remedy affords al-Tamir adequate relief
and that he therefore cannot satisfy the second mandamus
requirement. Al-Tamir disagrees, urging us to dissolve the
entire commission.
We agree with the government that its de novo
reconsideration remedy is “substantially similar” to the remedy
ordered in Al-Nashiri III, except that it affords al-Tamir the
added benefit of allowing him to retain favorable rulings.
Respondent’s Br. 32. Al-Tamir thus may “scrub the case of
judicial bias,” Al-Nashiri III, 921 F.3d at 240, by selecting any
order issued or influenced by Judge Waits to be fully
reconsidered by a new, impartial judge—indeed, he could
request reconsideration of all Judge Waits’s orders if he so
chose. That seems to us a more than “adequate means to attain
the relief he desires,” Al-Nashiri III, 921 F.3d at 233, given that
the government may not resist or decline his requests.
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Al-Tamir offers several arguments for why that alternative
remedy is nonetheless inadequate. We are unpersuaded.
To begin with, several of the shortcomings al-Tamir
associates with reconsideration apply equally to the remedy we
adopted in Al-Nashiri III. For instance, al-Tamir argues that
reconsideration “overlooks the invisible ways in which the
appearance of bias infects a proceeding,” Petitioner’s Br. 66,
and that it cannot address “issues where Waits failed to rule,”
id., or decisions that do “not even appear on the record,” id. at
72. But vacating the judge’s orders in Al-Nashiri III was
equally incapable of undoing decisions unreflected in discrete
judicial orders. That we nonetheless adopted that remedy in
lieu of more “draconian” options—like dissolving the
commission—makes clear that such limitations do not doom
the government’s proposed remedy here. Al-Nashiri III, 921
F.3d at 240 (internal quotation marks omitted).
Al-Tamir analogizes de novo reconsideration to the one
remedy we did reject in Al Nashiri III, post-conviction
appellate review. There, we found such review to be inadequate
because “no amount of appellate review can remove
completely the stain of judicial bias, both because it is too
difficult to detect all of the ways that bias can influence a
proceeding and because public confidence . . . is irreparably
dampened once a case is allowed to proceed before a judge who
appears to be tainted.” Id. at 238 (alteration in original)
(internal quotation marks omitted). We went on to emphasize
that the “same is true for proceedings in which the disqualified
adjudicator is gone but his orders remain.” Id. “If a judge
should have been recused from the . . . proceedings, then any
work produced by that judge must also be . . . suppressed.” Id.
(first alteration in original) (internal quotation marks omitted).
Al-Nashiri therefore had “no adequate remedy for [the judge’s]
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conduct other than to scrub [the judge’s] orders from the case
at the earliest opportunity.” Id.
According to al-Tamir, that discussion of post-conviction
appellate review’s deficiencies applies equally to the
government’s proposed remedy here. But that argument
overlooks two key differences between appellate review and de
novo reconsideration.
First, unlike in al-Nashiri’s situation, neither al-Tamir nor
public confidence in the commission system is threatened with
the irreparable harm of continuing a proceeding infected with
bias because, under the government’s proposed remedy, de
novo reconsideration will occur prior to further commission
proceedings, including trial. Second, post-conviction appellate
review involves varying standards of review, some requiring
substantial deference to the commission. See, e.g., Al Bahlul v.
United States, 767 F.3d 1, 8–10 (D.C. Cir. 2014) (explaining
that errors forfeited before the commission are reviewed for
plain error). Of course, a decision motivated by bias would be
impermissible under any such standard. But as we emphasized
in Al-Nashiri III, it is “difficult to detect all of the ways that
bias can influence a proceeding,” thus limiting post-conviction
review’s remedial potential. Al-Nashiri III, 921 F.3d at 238. In
this case, by contrast, there is no need to ferret out the
clandestine influence of bias, as the commission’s review will
be de novo.
Al-Tamir next argues that de novo reconsideration is
inadequate because it “would address only written rulings.”
Petitioner’s Br. 66. But he identifies no source for such a
limitation. Quite to the contrary, Judge Libretto’s
reconsideration order encompasses oral rulings by referring to
“any rulings and orders issued by Judge Waits specifically
identified by the Defense as warranting review.” Ruling AE
11
158R at 21, United States v. Abd al Hadi al-Iraqi (Military
Commissions Trial Judiciary 2019), Appendix (App.) 116
(emphasis added). At oral argument, al-Tamir’s counsel was
concerned that the government has asked her client to provide
“AE numbers” for orders he wants reconsidered—identifiers
that do not exist for oral rulings. Oral Arg. Tr. 13–14. But such
a requirement appears nowhere in Judge Libretto’s order and
would be inconsistent both with that order and with the scope
of relief government counsel has represented is available to al-
Tamir.
Next, al-Tamir contends that de novo reconsideration of
only Judge Waits’s orders is insufficient to scrub the
commission of bias because those orders impacted subsequent
commission proceedings under Judges Rubin and Libretto.
That might have been a powerful argument but for government
counsel’s clear statements at oral argument committing the new
commission judge to reviewing de novo any later ruling al-
Tamir identifies as influenced by Judge Waits’s decisions.
Given that al-Tamir need not make any showing that a later
order was in fact influenced by Judge Waits’s decisions, or
even reasonably likely to have been so influenced, that
approach fully resolves his concerns. Indeed, as explained
above, government counsel clarified at oral argument that al-
Tamir “would just have to identify” those orders he would like
reconsidered for the new judge to do so. Oral Arg. Tr. 26.
Finally, al-Tamir correctly points out that in one respect
the case for dissolving the commission is stronger here than in
Al-Nashiri III. There, unlike here, the commission had
proceeded for years before a disqualifying conflict emerged.
Although we “[r]ecogniz[ed] the powerful case for dissolving
the . . . military commission entirely,” we instead concluded
that “a writ of mandamus directing vacatur of all orders entered
by [the judge] after . . . the date of his application[ would]
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sufficiently scrub the case of judicial bias without imposing an
unnecessarily draconian remedy.” Al-Nashiri III, 921 F.3d at
240. Although the disqualifying conflict in this case arose far
earlier in the proceedings, we are convinced for the reasons
described above that the government’s de novo reconsideration
remedy, rather than a more “draconian” approach, suffices to
“scrub the case of judicial bias.”
In sum, al-Tamir has, at least with respect to Judge Waits’s
conflict, an adequate alternative remedy to mandamus. Judge
Waits’s conduct thus does not entitle al-Tamir to issuance of
the writ, leaving us with no need to consider the remaining
mandamus factors.
Blackwood
Recall that Matthew Blackwood served as an attorney
advisor to all three commission judges and began applying for
outside employment while assisting Judge Rubin. Unlike in the
case of Judge Waits, the government does not concede that
Blackwood’s applications or eventual acceptance of
employment as an Assistant U.S. Attorney created a basis for
recusal of the judges he served. Accordingly, it has committed
only to reconsidering any orders al-Tamir believes were
affected by Judge Waits’s orders or actions. Al-Tamir,
however, argues that Judges Rubin and Libretto operated under
a second source of bias, namely, Blackwood’s employment
search. It is to that dispute that we now turn.
Blackwood’s official position description explains that he
was a “senior, highly experienced” attorney assisting and
advising military commission judges as a “subject matter
expert attorney with expertise in criminal trial practice in the
context of the Military Commissions.” Position Description,
App. 797. His duties included overseeing legal research,
consulting with experts, reviewing national and international
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military commission practices, preparing recommendations,
and “drafting . . . opinions, rulings and orders.” Id., App. 798.
The judges relied on him to prepare and deliver “oral
presentations such as briefings, training sessions,
consultations, and strategy sessions” and to “resolve
controversial matters.” Id., App. 798. He also supervised the
court information security officer, whose job was to “govern[]
the creation, protection, safeguarding, transmission, and
destruction of classified material.” Id., App. 798. Blackwood
met with the Hadi prosecutors ex parte around five or six times
pursuant to Military Commission Rule of Evidence 505, which
allows for such meetings to review and approve government-
proposed substitutions for classified evidence. Blackwood
exercised substantial discretion in those meetings. See
Petitioner’s Br. 15–16.
In late 2017 or early 2018, while commission proceedings
were ongoing, Blackwood began looking for a new job. Judge
Rubin, the commission judge at the time, had no recollection
of Blackwood informing him about the job search. In January
2018, Blackwood applied for a job with DOJ’s National
Security Division, the same division that employed the first
prosecutor in al-Tamir’s commission. Like Waits, Blackwood
highlighted his work on al-Tamir’s commission in his
application. He also provided as a writing sample a copy of a
Hadi commission ruling with certain identifying information
omitted. Over the next few months, Blackwood applied for
many other roles with DOJ and DOD, including with law
enforcement agencies that had participated in al-Tamir’s
interrogation. He also applied to be a prosecutor in numerous
United States Attorney’s Offices, interviewing for at least six
AUSA positions. In July 2018, Blackwood was offered and
declined a job as an AUSA in the Western District of Texas.
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On July 31, Blackwood applied to be an AUSA
specializing in terrorism and national security in the Western
District of Missouri. He again highlighted in his application his
experience on the Hadi commission and mentioned his
commission work during his interview with an attorney who
had worked on the “privilege filter team” in Al-Nashiri.
Blackwood received a tentative job offer to be a national
security prosecutor on August 31 and accepted the same day.
Within a month, Blackwood told Judge Libretto about the offer
but nonetheless continued to work on the commission without
any change in duties. That work included reviewing sealed
materials to which Judge Libretto lacked access from his duty
station.
The government argues that an attorney advisor like
Blackwood is best understood as a more professionally
advanced variety of law clerk. Though al-Tamir emphasizes
that Blackwood took on a more substantial and sensitive role
than would the typical judicial law clerk, he offers no closer
analogue. In any event, Blackwood’s core responsibilities—
overseeing legal research and drafting opinions, rulings, and
orders—were substantially similar to those of many law clerks,
and law clerks themselves may take on widely varying levels
of responsibility depending on the preferences of their judges.
As a general matter, law clerks are subject to ethical duties
similar to their judges’. See In re Allied-Signal Inc., 891 F.2d
967, 970 (1st Cir. 1989) (“[T]he relationship of clerk to judge
itself is close enough that one might find an appearance of
undue influence.”); Hall v. Small Business Administration, 695
F.2d 175, 179 (5th Cir. 1983) (“[T]he clerk is forbidden to do
all that is prohibited to the judge.”); Parker v. Connors Steel
Co., 855 F.2d 1510, 1525 (11th Cir. 1988) (“We recognize the
importance that some law clerks play in the decisional process
and it is for this reason that a clerk is forbidden to do all that is
15
prohibited to the Judge.” (internal quotation marks omitted)).
But as “[b]oth bench and bar recognize[,] . . . judges, not law
clerks, make the decisions,” In re Allied-Signal Inc., 891 F.2d
at 971, and clerks therefore are not subject to precisely the same
ethical requirements as their judges.
A law clerk’s ethical responsibilities with respect to future
employment are ordinarily triggered only once that clerk
receives or accepts a job offer. That is the position taken by the
federal judiciary’s standards for federal law clerks: “Ask your
judge if you may apply for a job with a firm that represents a
party currently before the court. If you interviewed with a firm
but have not accepted an offer, your judge has discretion about
whether you may work on matters involving the firm. Once you
have accepted an offer, . . . [y]ou may not work on any pending
or future cases involving your future employer.” Federal
Judicial Center, Maintaining the Public Trust: Ethics for
Federal Judicial Law Clerks 25–26 (rev. 4th ed. 2019). Our
sister circuits, as well as the D.C. courts, have echoed that view.
See, e.g., Hall, 695 F.2d at 176–77 (“Because a magistrate’s
sole law clerk was initially a member of the plaintiff class in
this suit, had before her employment with the magistrate
expressed herself as convinced of the correctness of its
contentions, and accepted employment with its counsel before
judgment was rendered, we hold that the magistrate erred in
refusing to disqualify himself.”); First Interstate Bank of
Arizona, N.A. v. Murphy, Weir & Butler, 210 F.3d 983, 988
(9th Cir. 2000) (“It is expected that when a clerk has accepted
a position with an attorney or with a firm, that clerk should
cease further involvement in those cases in which the future
employer has an interest.” (internal quotation marks omitted));
Advisory Committee on Judicial Conduct of the District of
Columbia Courts, Advisory Opinion 1 (1991) (“No obligation
to notify the judge or to take other precautionary measures
arises merely because the law clerk has submitted an
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application for employment . . . . The clerk’s obligation to
inform the judge of the identity of a prospective employer
arises when that prospective employer notifies the clerk that the
clerk has been invited to an employment interview, or has been
offered a position without an interview being required . . . .”).
Al-Tamir has identified no case in which a court has found
a recusal obligation to arise upon a clerk’s application for
employment, rather than upon the receipt or acceptance of an
employment offer. Although it is equally true that no case
squarely forecloses the possibility of such an obligation and
that Blackwood’s responsibilities exceeded those of most law
clerks, the standard for mandamus relief is demanding, and
given the absence of clear authority for al-Tamir’s position, we
cannot say that his “right to issuance of the writ is clear and
indisputable.” Cheney v. U.S. District Court for the District of
Columbia, 542 U.S. 367, 381 (2004) (internal quotation marks
omitted).
That said, Blackwood continued to work on the
commission for several months after receiving and accepting
an employment offer. We nonetheless agree with the
government that his acceptance provides no basis for recusal.
We held that recusal was required in Al-Nashiri III because
of the Attorney General’s key role in overseeing both military
commission prosecutions and immigration judges. True, the
Executive Office of Immigration Review was not a party to al-
Nashiri’s commission. But the Attorney General’s role within
that office meant that the office and the prosecution were linked
in a meaningful fashion. The Attorney General, we explained,
was properly understood as a participant in al-Nashiri’s
commission for two reasons. First, “the Justice Department,
presumably with the approval of the Attorney General, detailed
one of its lawyers to prosecute Al-Nashiri.” Al-Nashiri III, 921
17
F.3d at 236. Second, “aside from the particulars of Al-Nashiri’s
case, the Attorney General plays an important institutional role
in military commissions.” Id. As for the Executive Office of
Immigration Review, we recognized that “although the Justice
Department is a complex institution with many offices
performing many different functions,” the Attorney General
was an immigration judge’s employer because he was “directly
involved in selecting and supervising immigration judges.” Id.
at 235. In reaching that conclusion, we distinguished the
Attorney General’s direct role in appointing immigration
judges from, for instance, the hiring process for administrative
law judges, “who are hired through a selection process
administered by the Office of Personnel Management.” Id.
Blackwood’s new job—as an AUSA with the U.S.
Attorney’s Office for the Western District of Missouri—was
different. Although there is no doubt that the Attorney General
serves the same role in the prosecution here as he did in Al-
Nashiri III, it is far less clear that an AUSA like Blackwood is
employed by the Attorney General in the same sense as is an
immigration judge. The government argues that the two roles
differ because, as it explained in its interrogatory responses, the
“Attorney General is not personally involved in the selection
or approval of individual AUSAs.” Responses to
Interrogatories Propounded in AE 160H at 2, United States v.
Abd al Hadi al-Iraqi, App. 925. AUSAs are, as the government
explained, instead recruited and evaluated by individual U.S.
Attorney’s Offices and then subjected to a limited approval
process by the Executive Office for the United States Attorneys
and the Office of Attorney Recruitment and Management. Id.
at 1–2, App. 924–25. Taking the opposite position, al-Tamir
points out that the relevant statute provides that “[t]he Attorney
General may appoint one or more assistant United States
attorneys in any district when the public interest so requires”
and that “[e]ach assistant United States attorney is subject to
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removal by the Attorney General.” 28 U.S.C. § 542. The
Attorney General, however, has by regulation delegated
authority to appoint and employ AUSAs to the Deputy
Attorney General, who has in turn further delegated authority
to appoint AUSAs to the Director of the Office of Attorney
Recruitment and Management. 28 C.F.R. § 0.15(b)(1)(v); U.S.
Department of Justice, Justice Manual, § 3-4.300(A) (2018).
We need not definitively resolve whether the Attorney
General should be considered AUSAs’ employer for recusal
purposes to conclude that the answer is at least uncertain
enough to make al-Tamir’s right to relief far from “clear and
indisputable.” Given that the Attorney General does not in
practice select AUSAs and has no statutory or practical role in
supervising their conduct, it is at the very least highly uncertain
whether the Attorney General is properly considered
Blackwood’s employer.
Al-Tamir insists that the Western District of Missouri is
unique among local U.S. Attorneys’ Offices because the
Deputy U.S. Attorney—the chief of the criminal section within
that office—was previously on loan to the Department of
Defense to aid in the prosecution of al-Nashiri. But again, al-
Tamir has identified no source of law or ethical guidelines
speaking to that situation or a closely analogous one.
Although 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, we cannot say that his choices “clearly and
indisputably” gave rise to a conflict warranting recusal. Given
that conclusion, we need not consider the separate question
whether Blackwood’s purported conflict would be imputed to
the judges he served.
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III.
For the foregoing reasons, the petition is denied.
So ordered.