THE UNITED STATES COURT OF
MILITARY COMMISSION REVIEW

UNITED STATES OEAMERICA

Appellant,
OPPOSITION TO
MOTION TO DISMISS FOR
WANT OF JURISDICTION UNDER

10 U.S.C. 950d

U.S.C.M.C.R. Case No. 18?002

Arraigned at Guantanamo Bay, Cuba
on November 9, 2011

Before a Military Commission
convened by Vice Admiral (ret)
Bruce E. MacDonald, USN

ABD AL RAHIM I-IUSSAYN
MUHAMMAD AL NASHIRI

Presiding Military Judge
Colonel Vance H. Spath, USAF



Appellee. DATE: March 5, 2018

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES
COURT OF NHLITARY REVIEW

COMZESANOW, the United States of America, and pursuant to Rules 21(c) and of this
Court?s Rules of Practice, requests leave to ?le and thereby opposes Appellee Abd Al Rahim
Hussayn Muhammad Al Nashiri?s Motion to Dismiss Appellant?s Interlocutory Appeal for Want
of Jurisdiction under 10 95?0d (the ?Motion?) ?led on February 27, 2018 at 6:02 pm.
This opposition is timely ?led. The Motion offers no law or facts which, if true, would permit this
Court to ignore that Appellant had yet to even ?le its appeal on the date of Appellee?s Motion?
the United States had only provided notice of its appeal. Moreover, until such time as the brie?ng
cycle is complete, the Court should not judge the merits of the jurisdiction question because, as
even Appellee grudgingly acknowledges, there is substantial precedent for the interlocutory appeal
of abatement under 10 862' Further, the Motion offers no legal basis for this Court to
grant extraordinary relief. Finally, the facts and circumstances of this casewlargely of the Military

Commission Defense Organization?s and Appellee?s own creationwmake an

interlocutory appeal proper under 10 U.S.C. 950d(a)(1). Accordingly, the Motion should be

denied.

OVERVIEW OF PROCEDURAL AND LITIGATION HISTORY,
PERTINENT FACTS, AND ARGUMENT

As set forth at length in Appellant?s brief ?led this date, M.C.D.O. and Appellee?s trial
defense counsel are engaged in a strategic effort to undermine the military commissions process,
erode the public?s trust and con?dence in this system of justice, obstruct and delay progress in
Appellee?s trial, impede the deposition of a key government witness, and prevent the admission of
that deposition at trial. To achieve these ends, M.C.D.O. and Appellee?s defense team have
asserted the authority to exercise unilateral control over whether defense counsel deign to
participate in Appellee?s capital military commission, construed court orders as optional, refused
to appear pursuant to lawful and dulyserved process, engaged in contemptuous conduct and been
held in contempt, and abandoned Appellee and his legal defense.1 Indeed, to this latter point,
while M.C.D.O. stripped Appellee?s trial defense down to the least-experienced single attorney,2
M.C.D.O., Appellee, Appellee?s counsel, and others are fully engaged in collateral and third-party
attacks3 on the Commission and the Military Judge?s efforts to maintain control of his courtroom
in the face of ?revolution to the system.?4 Whatever the ultimate outcome of

Appellee?s military commission, M.C.D.O. ?s and counsels? strategy to?date has proven destructive

 

1 See generally Brief of Appellant at 4?11.
2 Id, at 11. 

3 See, e. g, Motion for Temporary Restraining Order, Nashirz' v. Trump, No. 
(D.D.C. Nov. 1, 2017), ECF No. 278 Notice of Filing, Supplemental Petition for Habeas Corpus,
Al Nashiri v. Trump, No. (D.D.C. NOV. 14, 2017), ECF No. 286; Kammen v. Mattis,
No. 17?cv?3 951 (SD. Ind. Nov. 2, 2017), ECF No. 6 (Learned Counsel?s petition for writ of habeas
corpus ?led against the Secretary of Defense, the Convening Authority, and the Military Judge);
Baker v. Spark, No. l7?cv?2311 (D.D.C. Dec. 1, 2017), BCF No. 1 (the Chief Defense Counsel?s
petition for writ of habeas corpus ?led against the Military Judge and Secretary of Defense);
Yaroshefsky v. Mattis, No. (S.D.N.Y. Nov. 9, 2017), ECF No. (habeas petition filed
against the Secretary of Defense and the Military Judge by the law professor whose letter was used
by the defense to ?excuse? Learned and civilian counsel); AB 389MM, Third Party Motion To
Quash Deputy Chief Prosecutor?s Subpoena on Rosa A. Eliades (Jan. 19, 2018); AE 389NN, Third
Party Motion To Quash Deputy Chief Prosecutor?s Subpoena on Mary E. Spears (Jan. 19, 2018).

4 Unof?cial/Unauthenticated Transcript at 12373.

2

 

 

of theirule of law, so handcuf?ng and frustrating the Military Judge that he has inde?nitely abated
the proceedings below and is contemplating retirement from active military service because of his
shaken faith in the law and what it means to be a lawyer.5

As Appellee readily concedes, the abatement of proceedings was directly precipitated by
the Chief Defense Counsel?s purported excusals of counsel in October 2017.6 Far from rendering
the interlocutory appeal improper, however, Appellee?s recitation of the Chief Defense Counsel?s
belief that he possesses unilateral and unreviewable authority to excuse defense counsel at any
time7 makes this appeal Vital?~if the Chief Defense Counsel indeed possesses that authority, and
if the right to learned counsel is as absolute as Appellee maintains, the Commission will never
proceed in any meaningful way past this abatement. 8

This is no mere hypothetical worst?case scenario. While Appellee?s Motion claims that all
will be well later in 2018 when CDR Brian Mizer is activated to serve as learned counsel,9 not six
weeks ago this very same counsel who ?led the Motion opposed the notion that CDR Mizer would
serve in that role. 10 Adding to the defiance and lawlessness, the acting Chief Defense Counsel is
in lockstep with the Chief Defense Counsel and claims the authority to do as he pleases with
assignments of counsel, presumably including declining to detail CDR Mizer to Appellee?s case
even if he is returned to active duty. 11 Appellee?s Motion reflects what selective facts are

momentarily expedient, and in the same breath? that it denies the propriety of this appeal, it

 

5 TI. at 12372?74, 12377.
6 Motion at 2.
7 Motion at 2; AB 389C.

8 Tr. at 10049 (?nding that ?learned counsel are not practicable in the near term> if ever, by the
actions of General Baker?).

9 Motion at 1; see also AE 348M (ordering Convening Authority to work to bring CDR Mizer
to active duty to resume defense of Appellee).

10 Tr. at 11133.

11 Tr. at 11060?63, 11545?48 (describing acting Chief Defense Counsel?s tin?detailing of three
experienced counsel from Appellee?s defense team after the Military Judge ordered that they
appear on the record). Shortly after one of these colloquies, trial counsel questioned Whether
M.C.D.O. would assign CDR Mizer to Appellee?s case, which acting Chief Defense Counsel has
failed to address since. Tr. at 11074.

 

acknowledges the ?rare cases? where an abatement order is properly appealed under interlocutory
authority. 12 In the Motion?s parlance, this is one of those ?rare cases??and it is so by virtue of
Appellee?s counsels? and unprecedented de?ance of the law. 13

Against this factual and procedural backdrop, Appellee seeks an order dismissing this
interlocutory appeal before the Court considers any of its context or merit. Such a process neither
comports with the law nor deters? Appellee?s counsels? and continued misconduct.
Under the Military Commissions Act of 2009, the United States is entitled to consideration of its
appeal, and nothing but full consideration of the merits of this appeal will move the proceedings
below past and Appellee?s counsels? triumphant stalemate. 14

Even before the ?ling of the Notice of Appeal, the Military Judge below cut off all
communication with the parties, going so far as to reject the Government?s notices on the status of
the Convening Authority?s efforts to recall CDR Mizer to active duty.15 The Military Judge
previously ordered these notices,16 and the resolution of CDR Mizer?s recall to active duty is a
matter the Military Judge noted in his decision to abate the proceedings. 17 The refusal of the trial
judiciary to accept additional notices from the parties also leaves the government unable to notify
the Military Judge of the recent declassifi?cation of facts and circumstances surrounding the

attorney-client meeting spaces, the alleged ?intrusion? into which directly spawned the contrived

 

12 Motion at 7?8.

13 Tr. at 11064 (addressing the acting Chief Defense Counsel, the Military Judge stated, 
know you disagree with my ruling. In this case, I think I?ve issued 320 of them. Across my career,
I think I?ve issued thousands. Somebody disagrees every time. Somebody is unhappy. What
rarely happens is one side simply ignores them and acts in the opposite, or contrary to the ruling
I?ve issued. That doesn?t happen very often. Frankly, in the last seven and a half years, I can think
of one place and one team and one group that has done it, and that?s yours?).

14 See supra at 2?5.
15 Appendix to Brief of Appellant at App. 1?3.
16 AE 348U, Order (Jan. 23, 2018).

17 Tr. at 12375?716 (?And then, of course, the other issue is learned counsel?); see also Tr. at
12353?54 ordered Commander Mizer recalled to active duty months ago, and what I hear now
is, oh, it might take seven or eight months. We need demonstrated real movement on recalling
him or not doing 

?ethical quandary? that resulted in the abatement. The Military Judge?s frustration with his
inability to publicly address those circumstances was yet another circumstance that bore on the

Military Judge?s decision to abate.18 Those declassi?ed facts and circumstances are set forth

below:

 

In 2013, the defense team for Mr. al Nashiri requested accommodation to conduct
privileged attorney?client meetings outside of designated meeting locations that are
specially con?gured for that purpose, and used by other detainees in military
commissions cases. Joint Task Force-Guantanamo found a location
acceptable to the defense team and approved it for their use. Meetings between Mr.
al Nashiri and his attorneys in that location began in April 2014 and continued until
June 2017. During this period, Mr. al Nashiri used one speci?c room at that
location for his attorney?client meetings, except when he met with his counsel in
several locations in and around the Expeditionary Legal Complex (ELC),which is
away from the detention facilities entirely.

The new meeting location was not built or speci?cally designed for attorney-client
meetings. Prior to the defense team?s request, rooms in this building?including
the one ultimately used by Mr. al Nashiri?were con?gured for detainee interviews.
The rooms in the building in April 2014 thus included disconnected, legacy
microphones that were not connected to any audio listening/recording device.
While it was apparent that this room serving as the new meeting location had been
previously con?gured for interviews, no audio equipment was used while
Mr. al Nashiri was in the room. According to routine meeting logs, counsel used
this room for meetings with Mr. al Nashiri on more than 50 days during this period,
sometimes more than once in a day; the disconnected, legacy microphones in the
meeting room were never in use during these meetings.

The new meeting location was previously used for interviews of general?population
(non?HVD) detainees as late as 2011. The meeting room is located in a building in
a compound that JTF-GTMO exclusively controls. There are no records of the use
of the building to conduct interviews after 2011.

Like many buildings that maintains, the building housing the new
meeting location had not been designed to accommodate privileged attorney?client
meetings. With limited funds available to build such facilities over the last decade,
repurposing existing structures was often the only feasible option when new
requirements emerged. Various court orders and Department of Defense directives
to preserve evidence and structures potentially relevant to litigation further limited

 

18 Tr. at 12363?64 (?I?ve asked you for ?ve months, I?m asking you again, to the extent

possible, declassify matters surrounding the alleged intrusion?).

5

the ability and inclination to remove old equipment and?confirm that it had 
been removed.

In late April 2017, in an entirely separate location not used by Mr. a1 Nashiri, the
ITF Commander learned that attomey?client communications occurring outside of 
designated locations may have been overheard. After the Commander immediately
stopped allowing attorney?client privileged meetings at this location, United-States
Southern Command (USSOUTHCOM) conducted an investigation into the facts
and circumstances of the incident. The investigation formally commenced on 10
May 2017. This investigation concluded that a small number of detainees~?none
of whom were in contested military commission proceedings?were allowed to
meet with their attorneys outside of designated meeting locations. This
accommodation for the detainee legal teams resulted in attorney?client meetings
being unintentionally overheard. The investigation further concluded that no one
involved in legal proceedings or the JTF chain of command overheard these
communications, and that this incident did not result from the culpable negligence
or misconduct of any US. Government personnel. has implemented
safeguards to ensure that this situation cannot reoccur. Again, this incident and
subsequent investigation did not involve Mr. a1 Nashiri, his attorneys, or the
?meeting location that they used. Mr. a1 Nashiri has never met with his attorneys at
the other location, the one where attorney?client communications were
unintentionally overheard. No intrusions into attomey?client privilege occurred in
any meeting between Mr. a1 Nashiri and his attorneys.

Following report of this incident, the Joint Detention Group (JDG) Commander
executed a declaration on 30 June 2017, wherein he stated that Standard Operating
Procedures (SOPS) strictly prohibit any compromise of privacy in attorney?client
meetings spaces, and he offered?as his predecessor did in 2013?110 allow defense
counsel to personally inspect legal meeting rooms. Accepting this offer, Mr. al
Nashiri?s counsel conducted this inspection on 2?3 August 2017. During that
inspection, they located a legacy microphone that, although not in use and not
. connected to any audio listening/recording device, had not been removed from the
room.

Afterward, the defense team refused to meet in this room with Mr. al Nashiri. The
JTF then offered several alternative meeting locations which would meet their
needs. Since October 2017, members of Mr. a1 Nashiri?s defense team have
conducted their meetings with Mr. al Nashiri in and around the ELC?away from
the detention facilities entirely. This was one of the options provided by the JTF.

Starting in late October 2017, the JTF removed flooring, walls, and ?xtures in the
new meeting location. The JTF con?rmed that legacy microphones, which were
not connected to any audio listening/recording device nor in an operable condition,
were removed.

For these reasons, and those set forth below, the Court should deny Appellee?s Motion.

 

 

ARGUMENT

I. THE MOTION IS JURISDICTIONALLY DEFECTIVE, PREMATURE, AND
SHOULD BE DISMISSED

Appellee requests this Court to ?dismiss Appellant?s interlocutory appeal.?19 However, on
the date Appellee ?led his Motion there was no appeal, only notice of such an appeal. In other

words, the notice of appeal is merely a procedural step to effect the taking of the appeal and notify

this Court, the Commission, and Appellee that the appeal is forthcoming.? The actual process 9

of appealing anticipates full brie?ng in accordance with this Court?s Rules of Practice, and
Appellee may argue against this Court having jurisdiction in his response to Appellant?s brief, but
not before. Effectively, Appellee requests a remedy for which he cites no authority: pre?appeal
dismissal. This is akin to a request for extraordinary relief, and indeed the Motion acknowledges
that in substance it is a restyled request for relief in the nature of a writ of mandamus.21

A. As a Restyled Request for Relief Under the All Writs Act, the Motion Is
urisdictionally Defective

The nature of the Motion demands that the Court inquire into its jurisdiction to grant the

Motion.22 This Court has been vigilant in pohcing the boundaries of jurisdiction under the All

 

19 Motion at l.

20 Compare Rule for Military Commissions 908(b)(2) (describing decision process
for taking appeal and filing notice thereof), with R.M.C. 908(b)(7) (describing manner of effecting
appeal by filing same directly with this Court) and R.M.C. 908(b)(8) (describing decision to not
consummate appeal by filing with this Court). Compare also 10 U.S.C. 950d(e) (describing
method of notice and timing of taking the appeal) with 950d(t) (describing the method of appeal
directly to this Court)- See also Regulation for Trial by Military Commission at
j! 25?50 (noting that in order to file an interlocutory appeal, a notice must first be filed).

21 Motion at 9 may need to seek a writ of mandamus on the question of whether
this Court has confined itself ?to a lawful exercise of its prescribed jurisdiction?).

22 In re Asemani, 455 F.3d 296, 299, 372 (DC. Cir. 2006) (?Before considering whether
mandamus relief is appropriate . . . we must be certain of our jurisdiction?).

7

Writs Act, 28 U.S.C. A party cannot expand this Court?s jurisdiction by styling a

request for extraordinary relief as a motion. 24

While this. Court?s Rules of Practice permit a party to seek an extraordinary writ,25 a party
requesting relief of that nature must at least provide ?[t]he jurisdictional basis for relief sought and
the reasons why the relief sought cannot be obtained during the ordinary course of appellate
review.?26 Moreover, a party invoking the All Writs Act must establish that the requested writ is



?in aid of? the Court?s preexisting jurisdiction and that the requested writ is ?necessary or
appropriate.? Denedo v. United States, 66 MJ. 114, 119 (C.A.A.F. 2008), 556 US. 905
(2009).

The Motion does not explain the jurisdictional basis for this Court to grant the relief it
requests or how the requested relief is ?necessary or appropriate,? particularly at this time before
brie?ng is completed. Appellant submits that is because the relief Appellee seeks can be obtained
during the ordinary course of appellate review. Appellant briefed this Court?s authority to hear
the interlocutory matter in accordance with this Court?s Rules of Practice27 in its Brief of
Appellant, ?led on this date, and has provided further brie?ng below.28 Should the Court

determine it lacks jurisdiction, the Court need not address the merits. The Court should therefore

deny Appellee?s premature Motion to Dismiss.

 

23 See Order, Miami Herald, et al., v- United States, No. 13-002 (U.S.C.M.C.R. Mar. 27, 2013)
(declining to ?nd extraordinary writ jurisdiction under All Writs Act, 28 U.S.C. 1651(a)); Order,
American Civil Liberties Union v. United States, No. 13?003 (U.S.C.M.C.R. Mar. 27, 2013)

(same).

24 Randolph v. HV, 76 Ml 27, 31 (C.A.A.F. 2017) cannot use that article and
the All Writs Act to artificially extend this Court?s existing statutory jurisdiction?); LRM v.
Kastenberg, 72 MJ. 364, 367 (C.A.A.F. 2013) (?The All Writs Act is not an independent grant of
"jurisdiction, nor does it expand a court?s existing statutory jurisdiction.? (citing Clinton v.
Goldsmith, 526 US. 529, 534-35 (1999?).

25 U.S.C.M.C.R. Rules of Practice, R. 22(a).
26 U.S.C.M.C.R. Rules of Practice, R. 

27 U.S.C.M.C.R. Rules of Practice, R. 15 App. 1 (requiring appellant to ?set forth the
statutory basis of the jurisdiction? in appellant brief).

28 See infra at 10.

 

 

B. The Motion Should Not Be Adjudicated Before Completion of the Normal
Brie?ng Cycle

As Appellee concedes, the government may appeal an abatement in what he characterizes
as ?rare cases.?29 Thus, the Court should fully consider whether this is such a case and whether
the abatement is tantamount to dismissal, rather than accepting the Motion?s? one-sentence
assertion that it is not and (2) the Motion?s circular argument that assumes this abatement is not
tantamount to a dismissal and therefore the abatement cannot be appealed.30 Insofar as an
appellant is required to establish this Court?s jurisdiction in the ordinary course of brie?ng any
appeal?regardless whether the non?appealing party moves to dismiss?{he issue of jurisdiction
can be addressed at any time, but need not and should not be addressed until the Court considers
the remarkable record of proceedings brie?y summarized above,31 and in light of that record,
whether the abatement in this case satis?es United States v. True, 28 MJ. 1 (C.A.A.F. 1989) and
related cases.

Appellee?s summary dismissal of True carries no burden on a?motion to dismiss, insofaras-
the Motion claims that this particular abatement is ?neither tantamount to dismissal nor intended
to be,?32 while ignoring the remarkable intransigence and unlawful conduct of M.C.D.O. and
Appellee?s counsel that makes this case uniquely ?intractable? Within the meaning of True and
other decisions that permit interlocutory appeal of abatement orders.33 Indeed, that intransigence
and unlawful conduct resulted directly in the abatement and the Court must consider it in the full
context of the parties? briefs.

VJhile not directly applicable, the ripeness doctrine illustrates other reasons why the Court
should defer ruling. The doctrine ?exists to prevent the courts from wasting . . . resources by

prematurely entangling [themselves] in abstract Nat ?1 Treasury Emps. Union v.

 

29 Motion at 7.

30 Id. (arguing that the abatement is not a dismissal because ?the Military Judge did not abate
until such time as the sun rises in the west?).

31 See supra p. 2.
32 Motion at 7.

33 See supra p. 2; infra Section ll at 10; Brief of Appellant at 2?3.

9

United States, 101 F.3d 1423, 1431 (DC. Cir. 1996) (citing Abbott Labs. v. Gardner, 387 US.
136, 148?49 (1967)). The United States Court of Appeals for the District of Columbia Circuit
applies a two?part test to determine whether the facts of a particular case are suf?ciently ripe for
adjudication. This test considers ?the ?tness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.? Id. If the facts of a particular case are ?not fully
and the party bringing suit does not ?feel [the] effects [of the challenged conduct] in
a concrete way,? deferral is appropriate because the court may not need to adjudicate the dispute
and can ?protect the expenditure of judicial resources . . . Id.

Appellant respectfully suggests that there are no bene?ts to early adjudication of the
Motion for the Court or either party, insofar as making the jurisdictional issue ?fully 
requires virtually the same brie?ng as the merits of the appeal. Considering the Motion at this
stage saves no ?resources,? while nevertheless inviting the Court to decide the issue uninformed
by the parti?es? full briefing. Id. The Motion presents no dispositive law or fact, acknowledges the
propriety of interlocutory appeal of abatement orders in defined circumstances, and summarily
asserts that those circumstances are notpresent in this case: That assertion is unsurprising, proves

nothing, and does not merit dismissal of the appeal before it is briefed.

II. THE UNITED STATES PROPERLY APPEALED THE ABATEMENT UNDER 10

U.S.C. 950d(a)(1)

Should the Court ?nds that it has jurisdiction and that the Motion is not premature, the
Motion should be denied because the Military Judge?s abatement is appealable under
10 U.S.C. 950d. That statute provides, in relevant part, that ?the United States may take an
interlocutory appeal to the United States Court of Military Commission Review of any order or
ruling of the military judge . - . that terminates proceedings of the military commission with respect

to a charge or 

 

34 10 use. 950d(a)(1).

10

 

 

Interpreting a nearly identical statute, the Court of Appeals for the Armed Forces has held
that Article 62 of the Uniform Code of Military Justice provides jurisdiction for
interlocutory appeal of abatement orders. For example, in True, the court upheld the government? 
ability to appeal abatement under 10 U.S.C. 862. 28 MJ. at 4. The court reasoned that such an
abatement was ?not akin to a continuance? and that its effect was ?more readily equated with other
remedies such as dismissal or exclusion of the Government?s expert evidence which were
otherwise available and subject to appeal.? Id. (citations omitted). On remand, the service court
granted the appeal. See United States v. True, 28 MJ. 1057, 1062 1989).

The court reached a similar conclusion in United States v. Hohman, 70 MJ. 98 (C.A.A.F.
2011). There, the government?s interlocutory appeal challenged an abatement imposed after the
judge determined the government had inappropriately severed the accused?s attorney?client
relationship with his military defense counsel by releasing him from active duty. Id. at 99. The
abatement was conditioned on the restoration of the attorney as defense counsel, who had by then
been separated from active duty and become a reservist. Id. The service court first considering
the interlocutory appeal noted that although the government had the means to resolve the dispute,
the government?s refusal to dose made the case more like a dismissal than a continuance. United
States v. Hohman, No. 201000563, 2011 CCA LEXIS 14, at *5 Ct. Crim. App. Jan. 31,
2011) (noting that where the government has?but refuses to use?the ability to meet the
conditions that would end the abatement, ?intractability has set in, [and] abatement is less like a
continuance and more like a dismissal?).

Like the abatements in True and Hohman, the abatement here is not akin to a mere
continuance in either duration or effect. The Military Judge abated the proceedings ?inde?nitely?

and indicated that he even ?debated . . . for hours? whether to dismiss the charges outright.36 Since

 

35 U.C.M.J. Article 10 U.S.C. provides, in relevant part, as follows: ?In a
trial by court?martial in which a military judge presides and in which a punitive discharge may be adjudged,
the United States may appeal . [a]n order or ruling of the military judge which terminates the proceedings
with respect to a charge or speci?cation.?

36 Tr. at 12376.

11

abating the case, the Military Judge has held no proceedings, has refused to accept further ?lings
he previously ordered be made, and, therefore, has been unwilling to receive newly declassi?ed
facts and circumstances around the alleged ?intrusions? into attorney?client meeting spaces,
information the Military Judge speci?cally sought be made public.37 Cf United States v. Browers,
20 M.J. 356, 359 (C.M.A. 1985) (?nding no jurisdiction under Article 62 where the government
did not contend ?that the denial of the continuance terminated the proceeding, for there were
further proceedings after this ruling was made?). The Military udge?s abatement and subsequent
actions demonstrate that the courthouse is closed and Appellant cannot proceed with any aSpect of
its case. Cf. United States v. Redding, 11 MJ. 100, 104 (C.M.A. 1981) (?nding extraordinary writ
jurisdiction where ?the trial judge dismisses the charges, or takes other action that e?ectively
precludes prosecution of them, because he concludes that a command determination of
unavailability [of individual military counsel] was wrong?) (emphasis added). Therefore, this
abatement is effectively a dismissal, rather than a mere continuance, and it gives this Court
jurisdiction under 10 U.S.C. 950d.

Moreover, the present abatement is more susceptible to interlocutory appeal than even
those entertained by the courts in True and Hohman. First, the Military Judge did not impose clear
conditions on lifting the abatement. In True and Hohman, the government was at least on clear
notice of the basis for the abatement and the conditions that the government could satisfy to cause
the lifting of the abatement. Hohman, 70 M.J. at 99 (abatement pending restoration of detailed
defense counsel); True, 28 M.J. at 4 (abatement pending convening authority?s compliance with
trial court?s order); see also United States v. Harding, 63 M.J. 65 67 (C.A.A.F. 2006) (abatement
pending enforcement of warrant of attachment). Although Appellee claims the Military Judge

abated the case until one of three conditions were met,38 the Military Judge?s order lacked any

 

37 Those facts are set forth supra at 5?6.

38 Motion at 7 (noting two of the collateral attacks on the military commission, the potential 
for this Court or the US. District Court for the District of Columbia to issue a writ, or completion
of ?administrative paperwork? for the Appellee to receive a second learned counsel).
Conspicuously absent from this list in the Motion are the Military udge?s numerous comments

12

 

 

such specificity. The only clear condition imposed by the Military Judge is that a superior court
must order the proceedings to resume.39 The Military Judge issued no written ruling to elaborate
on these conditions, leaving it unclear what actions, if any, are directly available to Appellant to
lift the abatement.
Second, and further highlighting the intractable nature of the abatement, is the fact that the
Military Judge conditioned relief from the abatement on the attainment of actions that Appellant
. cannot ?satisfy; 1n Hardingthe trial judge abated the case pending the execution of a warrant of
attachment. Harding, 63 MJ. at 67. On interlocutory appeal of that abatement, the Court of
Appeals for the Armed Forces found there was no jurisdiction under U.C.M.J. Article 62, because
the government possessed means to end the abatement. Id. (?The responsibility for enforcing the

warrant of attachment rests with officers of the Executive Branch. The rulings of the Military

 

59

about a ?62 appea referring to the parallel U.C.M.J. Article 62 provision for government
interlocutory appeal. See, 6.3., Tr. at 10058, 10059, 10161, 11549, 12110.

39 Tr. at 12376 am abating these . . . proceedings indefinitely until a superior court orders
me to resume?); id at 123 77 (?We?re done until a superior court tells me to keep going. It can be
[the] CMCRthe District [court] in DC. They?re all superior to me. But that?s
where we?re The military judge could not resolve intransigence and refusals to
follow his oral and written orders on (1) whether the Military Judge possessed the authority to
excuse counsel under R.M.C. 5 05 after counsel formed attomey?client relationships and
appeared before the military commission, and (2) whether Appellee is entitled to learned counsel
only insofar as ?practicable? given unwillingness to provide counsel, learned
counsel?s improper excusal and purported withdrawal, and the plain language of 10 U.S.C.
949a(b)(2)(C)(ii) (granting representation by learned counsel the greatest extent
practicable?).

These latter two issues are subjects of Appellant?s Brief filed on this date, and are the decisions
of the Military Judge that resulted most directly in the abatement. The Court must decide whether
the Military Judge made these decisions correctly. If he correctly decided 1) only the military
judge has the authority to excuse counsel after formation of attorney?client relationships and
appearances before the commission, and (2) that the right to learned counsel is not an absolute
requirement, but only ?to the greatest extent practicable,? then he abused his discretion in abating
the proceedings indefinitely.

However, if the Military Judge was incorrect, and if an accused has an absolute right to learned
counsel in capital military commissions, and if the Chief Defense Counsel has unilateral and
unreviewable authority to excuse counsel at any time, then indefinite abatement was within the
judge?s discretion, because the case would grind to a halt upon the strategic exercise of that power.
Indeed, that is precisely what happened when the Chief Defense Counsel claimed and exercised
that power in October 2017.

Judge in the present case demonstrate that he is prepared to move forward with the trial if and
when the warrant is executed?); see also United States v. Wright, 75 MJ. 501, 509 (AF. Ct. Crim.
App. 2015) (distinguishing Harding and ?nding jurisdiction under U.C.M.J. Article 62 where
?military judge?s abatement order came in response to a situation where ?intractability? had set in
because the Government had de?nitively decided it would not produce the responsive
correspondence?). Thus, in Hohman, Harding, and True, it was Executive Branch entities that
refused to comply with the judge?s order and Executive Branch entities that had the ability to
satisfy the conditions that would lift the abatement.-

This case is very different. Here, satisfaction of the ?condition? imposed by the Military
Judge is possible only by action of a superior court, af?rming that only a military judge may
release counsel who have formed an attorney?client relationship and appeared before the
commission, and (2) that an accused possesses a quali?ed right to learned counsel only ?to the
greatest extent practicable.? 10 U.S.C. 949a(b)(2)(C)(ii). Appellant cannot force M.C.D.O. to
detaii counsel and cannot resolve these issues and cause the abatement to be lifted. The requisite
?intractability? has set in for this Court?s jurisdiction, particularly given acts and
unwillingness to abide by the Military Judge?s orders. Wright, 75 MJ. at 509.

Under these conditions, the abatement in this case has inde?nitely ?terminate[d] [the]
proceedings . . . with respect to a charge or speci?cation,? within the meaning of 10 U.S.C. 950d
and as that phrase has been interpreted by the Court of Appeals for the Armed Forces and the
service courts. The intractability of the abatement is highlighted by its lack of clear conditions and
the fact that its resolution lies outside Appellant?s authority. Accordingly, this Court has

jurisdiction under 10 U.S.C. 950d and should deny the Motion.

l4

 

CONCLUSION
Therefore, this Court should deny Appellee?sMotion to Dismiss Appellant?s Interlocutory

Appeal for Want of Jurisdiction under 10 U.S.C. 950d.

Respectfully submitted


MICHAEL J. 
HARIDHVIOS V. THRAVALOS
CHARLES B. DUNN, Maj or, USAF
Appellate Counsel

MARK S. MARTINS
Brigadier General, US. Anny
Chief Prosecutor

Appellate Counsel for the United States
Of?ce of the Chief Prosecutor

Of?ce of Military Commissions

1 610 Defense Pentagon

Washington, DC. 203014610