UNITED STATES COURT OF MILITARY COMMISSION REVIEW

BURTON, CHIEF

BEFORE THE COURT
J U D G E ; S I L L I M A N , D E P U T Y C H IE F J U D G E ;
Appellate Judge

AND

P O LL A R D ,

UNITED STATES OF AMERICA,
APPELLANT
v.
A B D A L -R A H I M H U S S A Y N M U H A M M A D A L -N A S H I R I ,
APPELLEE
CMCR 18-002
October 11, 2018

Colonel James L. Pohl, JA, U.S. Army; and Colonel Vance H. Spath, JA, U.S.
Air Force, military commission judges.
On the briefs or motions for appellant were Brigadier General Mark S. Martins,
U.S. Army; Michael J. O’Sullivan, Esq.; Haridimos V. Thravalos, Esq.; and
Major Charles B. Dunn, JA, U.S. Air Force.
On the briefs or motions for appellee were Commander Brian L. Mizer, JAGC,
U.S. Navy, and Lieutenant Alaric Piette, JAGC, U.S. Navy.
On briefs or motions on behalf of intervenors Mary E. Spears and Rosa A.
Eliades were Matthew Hellman, Esq.; Todd C. Toral, Esq.; Brandon D. Fox,
Esq.; Keisha N. Stanford, Esq.; and Elizabeth H. Capel, Esq.
On the brief of amici curiae for Mary E. Spears and Rosa A. Eliades were Mary
E. Spears, Esq., and Rosa A. Eliades, Esq.; and on the brief of amici curiae for
the National Association of Criminal Defense Lawyers, the New York Criminal
Bar Association, the New York State Association of Criminal Defense Lawyers,
and individual amici Joshua L. Dratel, Esq.; Michael K. Bachrach, Esq.; Jean D.
Barrett, Esq.; Tanya Greene, Esq.; Richard Jasper, Esq.; Susan K. Marcus, Esq.;
Russell Neufeld, Esq.; Anthony L. Ricco, Esq.; and David A. Ruhnke, Esq. were
Joshua L. Dratel, Esq.; Michael K. Bachrach, Esq.; and Richard D. Willstatter,
Esq.
---------------------------------------------------PUBLISHED OPINION OF THE COURT
----------------------------------------------------

1

 Opinion for the Court filed by B U R T O N , C H I E F Judge, with whom S I L L I M A N ,
D E P U T Y C H I E F Judge, joins.
Concurring and Dissenting opinion filed by P O L L A R D , J U D G E .
Opinion for the Court
BURTON, CHIEF JUDGE:
On February 16, 2018, military commission judge (military judge) Vance
H. Spath ruled that the trial of Abd Al-Rahim Hussayn Muhammad Al-Nashiri
(Al-Nashiri) was indefinitely abated until a superior court orders him to resume.
Tr. 12,297-98; Mil. J. Spath Resp. to Order (Mar. 26, 2018). Appellant timely
filed an interlocutory appeal of that ruling under 10 U.S.C. § 950d(a)(1).
Appellant Br. (Mar. 5, 2018). 1 We reverse the military judge’s decision to
indefinitely abate the proceedings and order Al-Nashiri’s trial to resume.
I. Statement of the Case
Our superior Court has “recount[ed] the details of Al-Nashiri’s alleged
offenses” and the procedural posture of the case in a previous decision. In re
Al-Nashiri, 835 F.3d 110, 113-17 (D.C. Cir. 2016). After issuance of this
decision, litigation in pretrial motions continued until the military judge issued
the abatement order. On February 21, 2018, appellant filed a Notice of Appeal
under 10 U.S.C. § 950d(a) of the military judge’s decision to place Al-Nashiri’s
case in an indefinite abatement.
II. Issues Presented
Appellant urged our Court to
specifically hold that the Military Judge is the sole authority to determine
if there is good cause shown on the record to warrant excusal of a defense
counsel who has formed an attorney-client relationship with an accused
and appeared before the Commission; hold that there is no absolute right
to representation by learned counsel; reverse the Military Judge’s
abatement order as an abuse of his discretion; order that the proceedings
be resumed with the presently detailed counsel; and grant whatever other
relief the Court deems appropriate.
Appellant Br. 37 (Mar. 5, 2018). Al-Nashiri challenged the jurisdiction of our
Court arguing that jurisdiction under 10 U.S.C. § 950d(a)(1) is limited to a

1

Cita tions to br ief s and mo tions f ile d b y app e lla n t, app e llee , a mic i, and in terv enors a re
d es ign a ted in th is d ec is ion b y the ir s ourc e and d a te of f iling w ith the cour t w ithou t r eg ard to
th e ir cap tion s. Addition a l infor ma tion is prov id ed wh en mu ltip le br iefs hav e b e en f iled on a
s ing le d a y by th e sa me p ar ty or in te re s t.

2

 decision of the military judge that is tantamount to dismissal of a charge or
charges. Appellee Br. 1-2, 6-8 (Feb. 28, 2018). Al-Nashiri listed a series of
government actions over a six-year period that he believes undermined his
counsel’s ability to effectively represent him. AE 389 at 29-37. These actions
served as a basis for Al-Nashiri’s three senior defense counsel (SDC) to stop
attending commission hearings, purportedly ending their representation of AlNashiri. Id. at 17-37. Al-Nashiri argued that Brigadier General (BGen) John G.
Baker, the Chief Defense Counsel (CDC), Military Commission Defense Office
(MCDO), lawfully approved the excusal requests of Al-Nashiri’s three SDC –
namely, learned counsel Richard Kammen and counsel Mary E. Spears and Rosa
A. Eliades. Appellee Br. 2-10, 14-15 (Apr. 9, 2018). Appellant countered that
the releases of the three SDC from their representation of Al-Nashiri did not
have a valid basis. Appellant Br. (Apr. 16, 2018). In any event, appellant
asserted that the military judge’s order to the CDC to rescind his excusal, and
the military judge’s orders to the SDC to continue to represent Al-Nashiri, are
binding on the CDC and Al-Nashiri’s counsel. See Appellant Br. 3-4 (July 23,
2018).
Al-Nashiri also argued that the abeyance should continue until a learned
counsel is detailed to represent him. Appellee Br. 26-28 (Mar. 15, 2018). On
October 11, 2017, the CDC excused Mr. Kammen. AE 339L at 5. The CDC or
Acting CDC was responsible for the initial selection of replacement learned
counsel. CDC/Acting CDC Resp. to Order (Mar. 30, 2018). From October 11,
2017, to January 8, 2018, the CDC or Acting CDC searched for, selected, and
nominated a new learned counsel for Al-Nashiri. Id. at 1-3. The convening
authority, however, declined to appoint new learned counsel until resolution of
Mr. Kammen’s status as Al-Nashiri’s counsel. See id. at 3-4. As of February
16, 2018, the date the military judge abated the proceedings, Mr. Kammen had
not returned to represent Al-Nashiri and new learned counsel had not been
appointed. See id. at 4. The Acting CDC refused to detail additional counsel to
assist Al-Nashiri’s lone detailed counsel, Lieutenant (LT) Piette, U.S. Navy,
because the Acting CDC wanted new learned counsel to be appointed first, and
then new learned counsel would be able to choose additional counsel to
represent Al-Nashiri. See Tr. 11,500-04.
We conclude: (1) the three SDC established an attorney-client
relationship with Al-Nashiri, and they entered appearances before the military
commission on behalf of Al-Nashiri; (2) good cause is required before the SDC
may be excused from representing Al-Nashiri; (3) the CDC made the initial
excusal decision without good cause because the SDC did not establish that the
government intruded into Al-Nashiri’s attorney-client relationships; (4) the
military judge properly overruled the CDC’s excusal decision; (5) the SDC are
obligated to comply with the military judge’s orders to continue to represent AlNashiri; (6) counsel must obey the military judge’s orders unless a higher court
overrules the military judge; (7) the CDC and Acting CDC abused their
discretion and violated the Regulation for Trial by Military Commission
(RTMC) when they failed to detail additional counsel to represent Al-Nashiri
after it became apparent that the SDC would not return to represent Al-Nashiri
3

 and the military judge said he wanted to proceed with pretrial motions; (8) there
is no absolute right to learned counsel; and (9) our Court declines to delay our
decision pending litigation in the U.S. District Courts.
III. Facts
A. Detailing of Senior Defense Counsel
The then-current CDC appointed Richard Kammen on December 23, 2008,
to represent Al-Nashiri as learned counsel under Manual for Military
Commissions (MMC) (2007 ed.), Rule for Military Commissions (R.M.C.) 506.
Tr. 11,004; see AE 389 at 9-15; AE 389F at 2-3 (citing MMC, pt. II.V, R.M.C.
506(b); 10 U.S.C. § 948k). At the time of his appearance, Mr. Kammen signed
an Affidavit and Agreement (MC Form 9-2) describing his duties and
responsibilities as required by Chapter 9-5.b.1 of the RTMC. AE 389 at 9-15.
Among other things, Mr. Kammen “agree[d] to comply with all applicable
regulations and rules for counsel, including any rules of court governing
proceedings . . . .” Id. at 11. He also agreed to represent Al-Nashiri
“throughout the military commission process, from the inception of [his]
representation through the completion of any post-trial proceedings” and “to
ensure [detailed] counsel is capable of conducting the defense independently if
necessary.” Id. at 11, 13.
Ms. Spears and Ms. Eliades are both civilian employees of the Department
of Defense (DoD). AE 389J at 1. In 2015, they were detailed to serve as
assistant defense counsel by BGen Baker, then-CDC, MCDO. AE 339E & AE
339F, Attachs. B. The CDC is required to supervise MCDO lawyers. RTMC,
ch. 9-1.a.3 (2011 & 2016 eds.). This includes ensuring their compliance “with,
the M.C.A. [Military Commissions Act], the M.M.C., this Regulation [RTMC],
all Supplementary Regulations and Instructions issued in accordance therewith,
and the orders of the commission.” Id. (emphasis added). Ms. Spears and Ms.
Eliades signed an Acknowledgement of Responsibilities document. See AE
339E & AE 339F, Attachs. B. Their acknowledgements did not require
compliance with orders of the commission. Tr. 11,493; 11,507-08; see AE 339E
& AE 339F, Attachs. B. It is unclear if this was because as DoD employees they
are subject to supervision by their superiors.
B. Allegations that the Government Intruded into the Attorney-Client
Relationship of Al-Nashiri and other Defendants and Detainees
Mr. Kammen requested excusal from representing Al-Nashiri, and he cited
a series of intrusions into the attorney-client relationship from October 2011
(“Guards confiscate privileged legal materials from the accuseds’ cells, and JTF
GTMO’s [Joint Task Force Guantanamo, Cuba] legal department reads counsels’
correspondence to their clients. Defense counsel have no ability to
independently investigate the extent of the disclosure or whether intelligence
agencies were involved.” (footnote omitted)) to June 2017 (“The government
acknowledges having ‘unintentionally’ eavesdropped on attorney-client
4

 communications at Guantanamo.”). AE 389 at 19-37. Appellee did not present
any evidence that the prosecutors involved in this case received access to
communications to or from Al-Nashiri or his counsel. The most prominent
alleged intrusions will be discussed in detail.
In January 2012, the JTF-GTMO Staff Judge Advocate learned that
microphones were hidden inside a smoke detector where defense counsel met
with their clients. Appellee Br. 6 (Mar. 15, 2018); AE 389 at 31-32. A military
judge ordered the listening devices to be dismantled. AE 389 at 32. There is no
evidence that the microphones were ever used to monitor communications
between Al-Nashiri and his counsel. Tr. 10,038; AE 369ZZZ.
Al-Nashiri alleged that the government accessed the attorney-client mail
of detainees at Guantanamo. Appellant Br. 5 (Mar. 5, 2018); AE 389 at 29-30.
In February 2012, the military judge ordered the establishment of a Privilege
Review Team (PRT), independent from JTF-GTMO and the prosecution, to
screen detainee legal mail for prohibited contraband. AE 027 at 2-3. Al-Nashiri
did not present any evidence that the PRT violated the military judge’s
restrictions prohibiting the PRT from communicating contents of detainee mail
to prosecutors.
Al-Nashiri alleged that in 2013, during technical upgrades of servers and
other technology, DoD information technology (IT) personnel caused the loss of
numerous defense files. AE 153 at 9-10; AE 389 at 33. 2
Al-Nashiri objected to DoD IT personnel monitoring of computer Internet
searches. Appellee Br. 6 (Mar. 15, 2018) (citing AE 153). DoD IT personnel
monitor all DoD computer systems for inappropriate use. 3 DoD IT personnel
also have access to all files stored on DoD computers connected to DoD servers,
including attorney-client communications. AE 153 at 15. A DoD IT person
checked a defense employee’s files for improper materials. Id. at 10-12; see Al
Qosi v. United States, 28 F. Supp. 3d 1198, 1205 (CMCR 2014).
On June 14, 2017, the CDC wrote his subordinate MCDO defense counsel
and advised them he had recently received information that led him to believe
that there was no guarantee of confidentiality for attorney-client

2

Ou r cou r t is unde r th e c on tro l of th e s a me D ep ar tme n t of D efen s e (DoD) in for ma tion
te chno log y (I T) p er sonn e l as th e Milita r y Co mmis s ion Defe ns e Off ic e ( MCDO). In 2013 ,
nu me rou s cour t f ile s d id no t co mp le te the tran sition pro c ess to a n ew te chno log ical s ys te m
a nd w ere los t.
3

S e e DoD Ins tr. 8530 .01, Cyb er se cur ity A c tiv itie s Suppor t to DoD Informa tio n N e twork
Op era tion s, ¶¶ 1. a ; 2 ; 3 .c ; enc l. 3 ¶ ¶ 1 .b, 5- 6 ( Ma r. 7 , 2016) ( C1 , July 25, 2017). DoD IT
p ersonn e l ha ve a c ce ss to our Cour t’ s f iles and a ppe llan t’s f iles , in c luding In tern e t se ar ch
infor ma tion. Th is g en er a l ac c es s is ak in to the U. S. Pos t Off ic e ac ce s s to the ma il of
e ver yon e who send s a le tter , w ith th e pr ima r y e xc ep tion tha t DoD I T pe rsonn e l ma y se ar ch
f iles w ithout a se ar ch au thor iza tion or prob ab le c aus e to b elie ve an offe ns e h as bee n
c o mmitte d .

5

 communications in the rooms that the JTF-GTMO and the Joint Detention Group
provided for defense counsel to meet with their clients. Tr. 10,037; AE 389 at
23. He cautioned counsel to “not conduct any attorney-client meetings at
Guantanamo Bay, Cuba until they know with certainty that improper monitoring
of such meetings is not occurring.” Appellee Br. 6-7 (Mar. 15, 2018); Tr.
10,037.
On the same day, the CDC wrote further:
On 30 November 2016, the Military Judge in United States v. Khalid
Shaikh Mohammed et al. ordered that intrusive monitoring (i.e., listening
and audio and video recording) of attorney-client meetings be formally
prohibited in the standard operating procedures for [JTF-GTMO] and the
[Joint Detention Group]. The Military Judge further ordered that defense
counsel must be advised in advance if a meeting with an accused is to be
monitored. The Military Judge issued these orders because he recognized
the legitimate concerns of defense attorneys that attorney-client meetings
at GTMO were being improperly monitored by government personnel.
At present, I am not confident that the prohibition on improper
monitoring of attorney-client meetings at GTMO as ordered by the
commission is being followed. My loss of confidence extends to all
potential attorney-client meeting locations at GTMO. Consequently, I
have found it necessary as part of my supervisory responsibilities under 91a.2 and 9-1a.9 of the Regulation for Trial by Military Commission to
make the above-described recommendation to all MCDO defense counsel.
Whether, and to what extent, defense teams follow this advice is up to the
individual defense team.
AE 389G at 26.
On July 7, 2017, the military judge ruled that he did not have the
authority to allow SDC to discuss classified information with Al-Nashiri, who
had no security clearance. AE 369OO. In doing so, the military judge noted,
“the Government, as officers of the court, have represented facts which
affirmatively negate what the Defense seeks to disclose to the Accused.” Id.
Each of Al-Nashiri’s lawyers had a security clearance that required them not to
disclose classified information to anyone who was not authorized to receive it.
The defense moved on July 13, 2017, to take discovery regarding potential
intrusion by the government into privileged communications. Appellee Br. 8
(Mar. 15, 2018) (citing AE 369PP). On September 20, 2017, the military judge
denied Al-Nashiri’s request for discovery. Tr. 10,037 (citing 369YYY); see
also Appellee Br. 8 (Mar. 15, 2018) (citing AE 369YYY-AE 369CCCC). After
full briefing that included classified information, the military judge concluded
that there was no “basis to find there had been an intrusion into attorney-client
communications” between Al-Nashiri and his counsel. Tr. 10,038; see also AE
369ZZZ.
6

 Despite the repeated urgings of the military judge, the government took
several months to declassify the circumstances involving the microphone or
microphones found in April 2017 in the room in which defense counsel and AlNashiri met. See Appellant Juris. Br. 5 & n.18 (Mar. 5, 2018). 4 Most of the
information was released after the SDC ended their representation of Al-Nashiri.
Some information about the intrusions relating to detainees other than AlNashiri and the August 2017 inspection of a room in which Al-Nashiri and his
counsel previously met continues to be classified. App. B.
In August 2017, a defense inspection of the room allocated for meetings
between Al-Nashiri and his counsel revealed a microphone or microphones that
were not connected to recording or transmission equipment. Appellant Disc. Br.
Ex. 1, Wells Decl. ¶¶ 19, 20.v-w (June 5, 2018) (Wells Decl.). The government
referred to the devices as “legacy” microphones left over from before 2012
when the building was configured for detainee interviews. Id. at ¶¶ 19, 20, 34
& at Attach. B.2; Appellant Juris. Br. 5 (Mar. 5, 2018). Thus, Al-Nashiri’s
meeting room was equipped with recording equipment. Appellant Juris. Br. 5
(Mar. 5, 2018). However, the government represented to the military judge that
when Al-Nashiri met with his SDC, the room
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
configured for interviews, no audio equipment was used while Mr.
al Nashiri was in the room.
Id. (detailing facts declassified after the military judge abated the proceedings).
As the events unfolded during the summer of 2017, Mr. Kammen sought
an opinion from Ellen Yaroshefsky, an ethicist and professor at Hofstra
University’s School of Law in New York 5 regarding his ethical obligations to
continue to represent Al-Nashiri in light of SDC’s concerns. See AE 339L at 8;
AE 389 at 21. As understood by Professor Yaroshefsky, Mr. Kammen was
concerned that (1) the government had intruded into SDC’s privileged

4

App end ix A to th is d ec is ion is our Oc tob er 10, 2018 orde r r eg ard ing ad mis s ib ility of
do cu me n ts w ith two App end ic es . App end ix A to our O c tob er 10, 2018 ord er is an ord er from
th e D. C. Circ u it in Sp ear s & E liad es v . Un ited S ta tes, No. 18-1087 (D.C. Cir . Ma y 10 , 2018)
(p er cur ia m), d ir ec ting th e gov ern me n t to sub mit ev id enc e d es cr ib ing an y in tru s ions .
App end ix B to our O c tob er 10, 2018 ord er con ta ins th e gove rn me n t’s su mma r y of
un c la ss if ied f a c ts re la ting to the a lle ged in trus ion s. Appe lla n t Ju r is. Br. 5 -6 ( Mar. 5 , 2018) ;
App e llan t Re spon se to App e lle e’ s Mo tion for D iscov er y, Ex . 1 (Ma y 21, 2018 We lls D e c.) ,
A ttach . B.
App end ix B to th is d e c is io n is the cla s s if ied summa r y about in tru s ions .
5

Prof es sor Y arosh ef sky is th e How ard L ich ten ste in D is tingu ish ed Prof es sor of Le ga l E th ics
a nd th e Ex ec u tive D ire ctor o f th e Monro e H. Fre ed ma n Ins titu te for the S tud y of Le ga l
E th ic s. AE 339L a t 25 ; AE 389 a t 38.

7

 communications with Al-Nashiri, and (2) SDC lacked confidence that they could
securely communicate with their client, and because of this lack of confidence
SDC were unable to inform Al-Nashiri of these matters and discuss their
concerns with him. See AE 339L at 10-11; AE 389 at 23-34.
In addition to the dispute involving “legacy” microphone(s) in the
meeting room where Al-Nashiri met with his counsel, the bases of SDC’s
concerns over the security of their privileged communications with Al-Nashiri
included a series of events that occurred between 2008 and 2017. Among these
events were intrusions or alleged intrusions by the government into the
privileged communications of detainees and defendants at JTF-GTMO. Mr.
Kammen summarized the SDC contentions regarding these matters in a
document titled, “Governmental Interference with Attorney-Client
Communications, Intrusions into Attorney-Client Relationships, Undisclosed
Monitoring, and Infiltration of Defense Teams” (Defense Intrusion Allegations).
AE 339L at 16-24; AE 389 at 29-37.
Al-Nashiri’s contentions principally can be divided into four categories:
the United States did or allegedly did: (a) overhear attorney-client
conversations and seize privileged materials; (b) obtain emails sent and received
by defense counsel; (c) allow JTF-GTMO staff to review legal mail for security
reasons; and (d) allow attorney-client meetings to be held in rooms that had (i)
microphones concealed as smoke detectors and (ii) “legacy” microphones that,
according to the government, no longer were connected to recording devices.
See AE 339L at 16-24; AE 389 at 29-37; Appellant Juris. Br. 5-6 (Mar. 5, 2018).
The defense community also contended that the government sought to insert an
informant in their midst and complained about the lack of timely and effective
action by the commissions and the DoD to address defense counsel concerns
regarding communications with their clients. See AE 389 at 34-35; AE 389N at
379.
Significantly, there is no evidence that the prosecution received any
privileged information involving Al-Nashiri. The only contention in the
Defense Intrusion Allegations that specifically discusses Al-Nashiri, as opposed
to allegations about compromising attorney-client confidentiality rights of
detainees other than Al-Nashiri, involves the “legacy” microphone(s) found in
the room where Al-Nashiri met with his counsel. See AE 339L at 16-24; AE 389
at 29-37; Appellant Juris. Br. 5-6 (Mar. 5, 2018).
Appellee did not cite validation documentation in support of most of the
Defense Intrusion Allegations. 6 In addition, the Defense Intrusion Allegations,

6

The De fen se In tru s ion A llega tion s a lleg e : “Follow ing broa d s e ar che s of ar ch iv ed e le c tron ic
c o mmu n ica tions on b eha lf of the pro se cu tion, IT te chn ic ian s s end th e pro se cu tion wh a t ma y
h ave be en hundr eds of thou sand s of in tern a l d efe ns e e ma ils. The Ch ief P ros ecu tor gu aran te es
th a t ‘[ a ]t no time d id any pro s ecu tor a c tua lly v ie w th e con te n t of an y pr iv ileged def ens e
c o mmu n ica tions ’. ” A E 389 a t 33-34 (b ra ck e ts in or ig in a l; foo tno te o mitte d). In Fe brua r y
2013, our Cour t o rder ed a se ar ch of e ma ils s ent a nd r ec e iv ed b y the pros e cu tion and th e

8

 among other things, did not disclose that a motion for Al-Nashiri to meet with
his counsel in the courtroom, a secure location, was pending. See AE 369AAA;
AE 369OOOO. On October 25, 2017, the military judge authorized Al-Nashiri
to meet with his counsel in the courtroom. Tr. 10,038-39; AE 369OOOO at 1
n.3. In April 2013, the CDC established a separate email system for defense
counsel. See AE 389 at 34. In August 2013, the military judge declined to
order JTF-GTMO staff to not monitor future attorney-client communications
because he found that there was no evidence that the government had monitored
any attorney-client meetings. AE 149K at 4. He explained that JTF-GTMO had
a duty to not monitor attorney-client communications, and accordingly, ordering
the execution of this existing duty “would be superfluous.” Id.
C. Professor Yaroshefsky’s Ethics Opinion
Professor Yaroshefsky testified that she presumed that Mr. Kammen’s
contentions in the Defense Intrusion Allegations (Ex. A to her ethics opinion)
were accurate, and she relied upon these facts in rendering her opinion. See Tr.
10,968-71. She based her conclusions, in part, on Mr. Kammen’s “assessment”
that there was “a significant history of actual and attempted government
intrusion into the attorney-client relationships, including the placement of
listening devices in attorney-client meeting rooms.” Tr. 10,971; AE 389 at 23.
Professor Yaroshefsky was also aware that the military judge denied requests
for discovery into the alleged intrusions and that Al-Nashiri’s counsel were
prohibited from informing Al-Nashiri about classified information relating to
the alleged intrusions. AE 389 at 23-24. In her statement of the factual basis
for her ethics opinion, 7 Professor Yaroshefsky said:
You [Mr. Kammen] state that “We have no other means by which to assess
the level of risk of intrusion into attorney-client confidentiality.” You
assess that risk to be substantial and ongoing, based upon past practice by
the government, (Exhibit A), the evaluation of the Chief Defense Counsel,
and classified information within your possession.

c onven ing au thor ity from o r to e ach o th er, or fro m the de fe ns e couns el to the prose cu tion and
th e conven ing au thor ity (bu t no t d ef ens e pr iv ile ged co mmu n ica tion s) in an a tte mpt to loc a te
do cu me n ts re la ted to a w a iver and /or withd rawa l of th e app ea l of ano th er ac cu sed. S ee
Un ited S ta te s v. A l Qosi, 28 F . Supp. 3d 1198, 1205 ( CMCR 2014) . Th e I T p erson as s ign ed
to condu c t th e s e ar ch err ed in s e le c tion of s e arch p ar a me ters and co lle cte d d efen s e e ma il
c o mmu n ica tions . AE 153 a t 8 & Atta ch . J . The pro se cu tion w a s ta sk ed to s cr een th e e ma ils.
A p ros ecu tor d is cover ed th a t so me de fen s e e ma ils we re co lle c ted. Id. H e d id no t re ad the m,
a nd infor me d our Cour t of th e issu e. A l Qo s i, 28 F. Supp. 3d a t 1206 ; se e AE 153 at 8-9 ¶
5.n . W e termin a te d the se ar ch. AE 153 a t 9 ¶ 5.n ; A l Qo s i, 28 F . Supp. 3d a t 1206.
7

“Pro fe ssor Y aso she fsky’ s op in ion is ba s ed so le ly on a cond ens ed and un c la ss if ied su mma r y
of so me of th e r e lev an t f ac ts. ” AE 389 a t 19 . Th er e ar e r ef er enc es in h er op in ion th a t
c la ss if ied infor ma tion known to Ch ie f D ef ens e Couns e l and d ef ens e coun se l con tr ad ic t th e
milita r y judg e’s f ind ing of no in trus ion in to A l-N ash ir i’s attorn e y- c lien t co mmu nic a tion s.
S ee id. a t 23-24. Profes sor Yaro she fsk y, how ev er, h a s no w a y to know wh a t th is c la ss if ied
infor ma tion mig h t r evea l, and thu s h er op in ion w as ba sed on in co mp le te infor ma tion.

9

 Id. at 24; see Tr. 10,998-99.
Professor Yaroshefsky concluded that Mr. Kammen had a mandatory
obligation to withdraw as counsel. She said:
The current situation set forth in the facts causes you to violate your
duty of communication to your client [because some of the facts related to
the intrusions were classified and cannot be shared with Al-Nashiri]. This
situation is untenable.
This ethical quandary is profound and not reconcilable with your
ethical obligation under the IRPC [Indiana Rules of Professional Conduct]
and the MRPC [Model Rules of Professional Conduct] to act diligently
and competently, to maintain confidentiality, and adhere to the duties of
loyalty and communication.
You cannot, consistent with your ethical obligation continue to
represent Mr. al-Nashiri. Rule 1.16(a)(1) of Professional Conduct
mandates that you withdraw from representation. It provides that a
lawyer “shall withdraw from representation of a client if the
representation involves a violation of the rules of professional conduct or
other law.” You are required to withdraw as his counsel because
continued representation will result in a violation of IRPCs and MRPCs
1.1, 1.3, 1.4, and 1.6. [ 8]
AE 389 at 28.
Thus, the predicates for Professor Yaroshefsky’s opinion that withdrawal
was mandatory were two-fold: (1) the uncertainty regarding security of
counsel’s communications with Al-Nashiri; and (2) counsel’s inability to share
classified information with Al-Nashiri. See Tr. 10,998; AE 389 at 23-24. In
reaching her conclusions, Professor Yaroshefsky did not address the relationship
between a lawyer’s duty to inform her client and the lawful restrictions on the
dissemination of classified information. See Ind. R. Prof’l Conduct r. 3.4(c)
(stating a lawyer shall not “disobey an obligation under the rules of a tribunal”)
& r. 1.4, cmt. 7 (stating rules or court orders may require no disclosure of
evidence by lawyer to client).

8
Ind . R. Prof’ l Condu c t ( Ru le) 1.1 re qu ire s a law yer to p rov id e co mpe te n t r epr es enta tion.
Ru le 1.3 requ ir es a law ye r to “ ac t with r e ason able d iligen c e. ” Ru le 1 .4 r equ ir es a la w yer to
c onsu lt w ith th e c lien t, k eep the c lie n t infor me d, and exp lain ma tte rs to th e c lien t. Ru le 1 .6
r equ ir es a la w yer to safe guard con fid en tia l c lien t info r ma tion. Ru le 1.16( a)(1) requ ir es a
la w yer to withdr aw from r ep re sen ting a c lien t if repr e sen ta tion w ill r es ult in v io lation of
a no ther ru le of prof es s ion a l r espons ib ility or oth er law. Prof es sor Yaro shef sk y d id no t
me n tion in h er op in ion Ru le 1.16( c), wh ich s tate s, “W hen ord er ed to do so b y a tr ibun a l, a
la w yer sh a ll con tinu e r epr es en ta tion no tw ith s tand ing good ca us e for te rmin a ting the
r epr es en ta tion. ”

10

 D. The CDC Acts to Terminate SDC’s Attorney-Client Relationship
with Al-Nashiri
On October 6, 2017, Mr. Kammen, Ms. Spears and Ms. Eliades requested
permission from BGen Baker, the CDC at that time, to withdraw from
representing Al-Nashiri for ethical reasons. 9 The requests were made
separately, but were similar. SDC cited their inability to adhere to three ethical
duties as the reasons for their requests for withdrawal: the obligation to provide
competent representation; the duty to inform their client regarding the alleged
intrusions; and the duty to protect their client’s confidences. In support of their
requests, the SDC considered several documents, including Professor
Yaroshefsky’s ethics opinion and classified and unclassified documents. SDC
stated that these documents and “facts that I know, both classified and
unclassified,” establish “extraordinary circumstances . . . which prevent me
from meeting my obligations under [these ethical] rules.”
On October 11, 2017, BGen Baker determined that there was good cause
to approve the SDC request to withdraw as defense counsel for Al-Nashiri based
“on the distinct circumstances of this case.” AE 389 at 18. Accordingly,
pursuant to R.M.C. 505(d)(2) he excused SDC as Al-Nashiri’s defense counsel.
Id. BGen Baker acted on his own authority in doing so.
Two days later, SDC informed the military judge “as a courtesy” that they
no longer represented Al-Nashiri. Tr. 10,039; AE 339J; AE 339K; AE 339L.
On October 16, 2017, November 3, 2017, and January 19, 2018, the remaining
detailed defense counsel, LT Piette, moved to abate the proceedings until the
appointment of new learned counsel to represent Al-Nashiri. AE 389; see Tr.
10,040; 10,173; 11,099. The military judge directed briefing on the issue. AE
389A. The military judge suggested that the CDC file a brief “on the issue of
his authority unilaterally to excuse Learned Counsel and other Civilian Counsel
after they have formed an attorney-client relationship with the Accused and
appeared in court on his behalf.” Id. at 2. In response, the CDC argued that
R.M.C. 505(d)(2)(B) authorized him to excuse counsel of record based upon his
finding that good cause existed for excusal. AE 389C at 2-3; AE 389E at 7-8.
The CDC further contended that his decisions to release SDC were his alone to
make and were not reviewable by the military judge. AE 389C at 5-6, 11; AE
389E at 7-8. The argument put forward by the CDC was focused on his reading
of Rule 505(d)(2)(B). See AE 389C; AE 389E.
After considering the matter, the military judge denied the defense motion
to abate. AE 389F. He concluded that under relevant law the military judge is
required to determine pursuant to R.M.C. 505(d)(2)(B) (2016 ed.) whether there

9

Un les s s ta te d o th erw ise , th e sour ce s for th e f ac ts in th is pa rag raph and th e n ex t pa rag raph
a re the SD C’ s r eque s ts to th e CD C for re le as e fro m rep re senting A l-N a sh ir i. A E 339 J; AE
339K ; A E 339L .

11

 is good cause to permit counsel to terminate an attorney-client relationship. 10
Id. at 4-5. The military judge gave three reasons for reaching these conclusions:
First, [accepting the CDC’s claim of authority] removes control of the
proceedings from the military judge, as well as renders impossible the
military judge’s responsibility to ensure fair and orderly proceedings free
of “unnecessary delay or waste of time.” See Discussion to R.M.C. 801.
Second, it contradicts the established practices of military and civilian
courts, which recognize[] the judge’s sole discretion in determining
whether excusal is warranted after counsel has appeared in the case.
Likewise, disqualification of counsel based on a breach of ethical duties
is well established to be within the discretion of the military judge.
Third, while the ambiguity in R.M.C. 505(d)(2)(B) is troublesome, it
cannot be read so as to conflict with other provisions within the R.M.C.,
rendering some superfluous, or read in a way that may directly prejudice
the Accused if no judicial oversight is permitted. As such, in conformity
with federal and military case law, the Commission is the appropriate
authority to determine if good cause is shown on the record to warrant
excusal of counsel pursuant to R.M.C. 505(d)(2)(B).
Id. at 5.
The record before us and in the commission does not identify the
additional facts or documents that SDC and the CDC claim as support for their
requests for excusal. Al-Nashiri’s SDC refused to participate in the proceedings
and thus did not testify about good cause. See AE 389KK; AE 389LL; AE
389MM; AE 389NN; AE 389RR; AE 389SS; see, e.g., Tr. 10,041-42; 11,003-04;
11,021; 11,494-95; 12,208-09. The CDC refused to answer questions about the
basis for his release of the SDC. Tr. 10,052-10,059, 11,003. Accordingly, more
specific information about why SDC and the CDC believed there was good cause
warranting termination of the SDC attorney-client relationships with Al-Nashiri
was unavailable to the military judge. The facts supporting good cause for any
intrusions into Al-Nashiri’s attorney-client relationship are not part of the
record that is before us. See AE 389F at 5-6 (findings of military judge).
The military judge also said, “thus far no evidence has been presented to
demonstrate intrusions in this case affecting this Accused which would ethically
require the withdrawal or disqualification of Learned Counsel.” Id. In addition,
he remarked that “at this stage of the proceedings, the excusal of Learned
Counsel [Mr. Kammen], who has acted as lead attorney for the Accused for nine
years, will prejudice the Accused’s due process rights.” Id. at 6.

10

In add ition, we no te tha t couns e l is r equ ired und er Milita ry Co mmis s ion s Tr ia l Jud ic iar y
Ru le s of Cour t 4 .2. a(3), 4 .2.b, 4.2. c, and 4.4.b (S ep t. 1, 2016) to ob ta in th e co mmis s ion ’s
p er mis s ion to w ithdr aw a s coun se l. S e e AE 389F a t 5 ( co mmis s ion ru ling s ta ting milita r y
judg e is ex cu sa l au thor ity).

12

 The military judge further pointed out that under Indiana Rule of
Professional Conduct 1.16(c), “[a] lawyer must comply with applicable law
requiring notice to or permission of a tribunal when terminating a
representation. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.”
Id. at 6 n.7.
On October 16, 2017, the military judge ruled that the SDC remained
counsel of record, and he ordered them to appear at the next scheduled hearing.
Tr. 10,040; AE 389A. On October 29, 2017, the CDC told the military judge
that SDC would not comply with the military judge’s order to appear at the
hearing scheduled for the next day. Tr. 10,041-42. Al-Nashiri’s detailed
counsel again moved for an abeyance until Al-Nashiri could be represented by
learned counsel. Tr. 10,042.
On October 31, 2017, CDC attended a pretrial hearing. Tr. 10,052. The
military judge ordered him to testify as a witness regarding his decision to
terminate SDC’s attorney-client relationships with Al-Nashiri. Tr. 10,054-56.
BGen Baker refused to testify, citing Military Commission Rule of Evidence
501(b)(1) and several privileges. Tr. 10,054-56; 11,003. He refused to assert
any specific privilege on a question-by-question basis. 11 Id. The military judge
ordered BGen Baker to rescind his order purporting to release SDC from
representing Al-Nashiri. Tr. 10,056; AE 389M at 3. BGen Baker told the
military judge that he would not comply with the commission’s order. Tr.
10,057. The military judge replied:
For defense counsel to have the authority stated by the chief defense
counsel would effectively give the defense counsel the ability to dismiss
any commission case or any criminal case at any stage in the process for
any reason when they determine good cause, and then refuse to testify in
court to even explain what the good cause shown is, other than what is
submitted in written form.
Tr. 10,066.
During the hearing, the military judge ordered BGen Baker to have AlNashiri’s SDC report to Guantanamo “post-haste.” Tr. 10,058-59. Later that
day, BGen Baker responded, “I do not believe that a military commission judge
has the authority to direct the Chief Defense Counsel to take a specific action
with respect [to] those persons he supervises. The Chief Defense Counsel is not
part of the enforcement mechanism for a judicial order or the witness production
process.” AE 389M at 14.

11

“Th e milita r y judg e shou ld ord in arily r equ ir e a w itn es s to c la im h is priv ilege on a
qu es tion-b y-qu es tion bas is. ” Se e Un ited S ta te s v. V ega- Can ce l, 19 M.J . 899 , 901 (A .C. M. R.
1985) (per cur ia m) . On ly in thos e in stan ce s whe re the cou rt f ind s th e w itn es s could
“ ‘ leg itima te ly r efu se to a nsw er es s en tia lly a ll re lev an t qu es tion s’ ma y th e w itn es s b e to ta lly
e xcu sed .” Id. a t 901-02 ( c ita tion omitte d ).

13

 The following day, on November 1, 2017, the military judge found BGen
Baker guilty of contempt for his willful refusal to obey the commission’s order
to testify and for willfully failing to rescind his order ostensibly terminating the
attorney-client relationship between SDC and Al-Nashiri. Tr. 10,074-85. The
military judge sentenced the CDC to a $1,000 fine and confinement in his
quarters for twenty-one days. Tr. 10,084. BGen Baker recused himself from
further involvement in Al-Nashiri’s case. Tr. 10,075; AE 389TT at 27. On
November 21, 2017, the convening authority approved the contempt finding of
guilty; however, he remitted the unexecuted confinement term and the fine. See
Baker v Spath, No. 17-cv-02311-RCL, 2018 U.S. Dist. LEXIS 101622, at *5
(D.D.C. June 18, 2018).
The military judge ordered the prosecution to issue subpoenas compelling
Ms. Spears and Ms. Eliades to appear and testify before the commission at a
video teleconference facility in Alexandria, Virginia. AE 389MM & AE 389NN
at 3; AE 389RR & AE 389SS at 4; AE 389TT at 10-11; AE 389UU. They
opposed compliance with the subpoenas. AE 389MM; AE 389NN; AE 389RR;
AE 389SS; see AE 389TT; AE 389UU; AE 389KK; AE 389LL.
Mr. Kammen, Ms. Spears and Ms. Eliades did not appeal to our Court any
of the military judge’s rulings about the alleged intrusions or the commission’s
denial of their requests to be excused from representing Al-Nashiri. The
defense in this commission case has used the All Writs Act, 28 U.S.C. §
1651(a), to appeal adverse rulings, see In re Al-Nashiri, 791 F.3d 71, 75-78
(D.C. Cir. 2015) (“Al-Nashiri I”), subsequent separate mandamus proceeding,
835 F.3d 110 (D.C. Cir. 2016), but has not done so here. Ms. Spears and Ms.
Eliades presented their views in this government appeal of the abatement order
as intervenors.
E. Aftermath of the SDC Refusal to Obey the Commission’s Orders to
Appear and Represent Al-Nashiri
In the ensuing weeks, the military judge continued the pre-trial
proceedings. See, e.g., Tr. 10,062. Al-Nashiri was represented by detailed
defense counsel, LT Piette. During commission sessions, LT Piette did little
more than object to all proceedings before the commission on the ground that he
was not competent to represent Al-Nashiri in the absence of learned counsel.
See, e.g., Tr. 10,062-63; 10,165; 10,173; 11,097-99; see Tr. 11,500-03; AE 389.
The military judge, however, ruled that Al-Nashiri was only entitled to learned
counsel to the greatest extent practicable and under the circumstances, it was
not practicable for Al-Nashiri to have learned counsel represent him. See Tr.
10,061-63; 10,175-76; 10,260-62; 10,588-90; 11,005-07; 12,257; 12,269-70;
12,277.
Despite these circumstances, the Acting CDC would not detail additional
counsel to represent Al-Nashiri. Tr. 11,502. Moreover, he “undetailed” [i.e.
withdrew] three field grade senior lawyers who had been designated to assist in
the defense of Al-Nashiri but who had not yet established an attorney-client
14

 relationship with him. Id. The Acting CDC said that he did this because the
learned counsel had authority to determine who would assist in Al-Nashiri’s
representation. Id. Thus, without assignment of learned counsel first, the
Acting CDC would not detail counsel to assist LT Piette in his representation of
Al-Nashiri. See Tr. 11,500-03; 11,097-99; AE 389 at 2. He did not cite a
regulatory or statutory basis for concluding that he or the learned counsel held
this prerogative.
The military judge found that the actions of SDC, the CDC, and the
Acting CDC were a deliberate strategy to “de-resource” Al-Nashiri’s defense.
Tr. 11,480-81. He urged detailed defense counsel “to prepare,” “to be
competent,” and “to be zealous. And so if the choice is you’re going to be quiet
and that is your decision, that’s fine. I believe it’s going to be looked at as a
trial strategy encouraged and assisted by MCDO.” Tr. 11,481. Detailed defense
counsel declined to cross-examine several witnesses or object to admission of
evidence, “tak[ing] no position, other than to object to the -- these proceedings
going forward without learned counsel present.” Tr. 11,292; see also 11,307;
11,315; 11,342; 11,386; 11,393; 11,477-78.
F. Al-Nashiri’s Views on Release of his SDC
On November 17, 2017, the military judge questioned Al-Nashiri
regarding the absence of his SDC. Tr. 11,010. He replied: “I believe [Mr.
Kammen] chose to leave this case, and I support him. . . . All the attorneys are
free to have their own opinion, and I support them. In other words, I cannot
force anyone to come here.” Id. 12
G. The Military Judge Abates Al-Nashiri’s Trial
In a verbal ruling on February 16, 2018, the military judge declared, “I
am abating . . . these proceedings indefinitely until a superior court orders me to
resume.” Tr. 12,298. He explained, “We need action from somebody other than
me, and we’re not getting it. . . . We’re going to continue to spin our wheels
and go nowhere until somebody who owns the process looks in and does
something.” Tr. 12,296. The military judge continued:
So hopefully somebody is going to take action. I am abating these
proceedings indefinitely. I will tell you right now, the reason I’m not
dismissing -- I debated it for hours -- I am not rewarding the defense for
their clear misbehavior and misconduct. That would be the wrong answer.

12

L ieu ten an t ( LT) P ie tte’s br ief s ta tes , “Th e on ly po s ition tha t App e lle e h as con s is ten tly
ta ken is h is d es ir e to hav e th e as s is ta nc e of le arn ed couns e l a t th es e p ro ce ed ings . H e h as no t
r e le a sed h is le arned coun se l. H e canno t ma k e coun se l app ea r a t th e commis s ion to r epr es en t
h im. ” App elle e Br. 22 (Ma r. 15 , 2018) (c ita tion s o mitte d). A l-Na sh ir i d id no t cons en t to the
r e le a se of an y of h is def ens e counse l. Id. Our d ispos ition ma k es it unn ec es s ar y to d e c ide
wh e ther A l-N ash ir i wa iv ed th e pr ese nc e of h is SD C and the imp a ct of a n y su ch w aiv er.

15

 But I am abating these procedures -- these proceedings indefinitely until a
superior court orders me to resume.
And whatever that looks like, either myself or my successor will
pick it up and start going. If it is -- the superior court tells me next week,
Spath, you abused your discretion, get to work, I’ll get to work, or
whoever takes my place. Hopefully the appellate court will give us some
guidance. Maybe they’ll say Lieutenant Piette, you’re stuck. Colonel
Spath got the law right, you don’t get learned counsel if it’s not
practicable, and it’s not practicable. Get to work. And then Lieutenant
Piette can sit there and not ask questions from now until we finish the
trial.
But that’s where we’re at. We’re done until a superior court tells me
to keep going. It can be CMCR [Court of Military Commission Review].
It can be the Washington -- or the District in D.C. They’re all superior to
me. But that’s where we’re at. We need action. We need somebody to
look at this process. We need somebody to give us direction. I would
suggest it sooner than later, but that’s where we’re at.
Tr. 12,297-98.
In response to our request that the military judge tell us whether he would
resume the proceedings if new learned counsel was appointed for Al-Nashiri, the
military judge said that he would not. Mil. Comm. J. Resp. (Mar. 26, 2018).
That, he said “will not resolve what this Commission views as an existential
threat to its ability to bring this case to trial. Those issues include:
(1) The validity of the claimed ‘unilateral and unreviewable’ authority
of the Chief Defense Counsel (CDC) to excuse Defense Counsel after
appearance before the Commission; and
(2) The authority of this Commission to issue binding orders and the
concomitant duty of those subject to said orders and their supervisors to
obey those orders.”
Id. The military judge continued,
Mooting the issues of excusal authority and willful disobedience of
Commission orders based on appointment of new Learned Counsel will
leave unresolved the underlying issues regarding the military judge’s
authority to ensure continuity of representation by being the sole
authority to excuse counsel who have appeared before the Commission
and the military judge’s ability to enforce judicial orders.
[ ] It is apparent that without the imprimatur of this Honorable Court
[of Military Commission Review] (or perhaps that of its superior Federal
Circuit Court), the Commission is powerless to move the case forward to a
16

 fair, just, and timely disposition as the CDC has given every indication he
will continue to exercise his claimed unilateral and unreviewable power to
excuse counsel.
Id.
Appellant has informed our Court that on October 27, 2017, the JTF
offered additional attorney-client meeting spaces for Al-Nashiri and his legal
team that, “like their former space, [were] ‘not audio-monitored or recorded,
and conversations cannot be overheard by non-participants.’” Status Rep. 2, 6
(Mar. 28, 2018).
Additional facts relating to the following motions: to dismiss for lack of
jurisdiction; to abstain from acting based on the first-to-file rule; to exclude
facts; and to require learned counsel at all stages of the military commission and
on appeal are set forth in the discussions of those motions herein.
IV. Standard of Review
We defer to the military judge “under an abuse of discretion standard to
the military commission’s findings of fact . . . , including determinations of
credibility,” and we review a “purely legal question . . . de novo.” United
States v. Al-Nashiri, 62 F. Supp. 3d 1305, 1306 (CMCR 2014) (per curiam) (first
ellipsis in original) (internal quotation marks and citations omitted); see also
United States v. Tchibassa, 452 F.3d 918, 924 (D.C. Cir. 2006). We review a
military judge’s ruling to abate a court-martial for an abuse of discretion.
United States v. Wuterich, 67 M.J. 63, 77 (C.A.A.F. 2008); United States v.
Johnson, 76 M.J. 673, 680 (A.F. Ct. Crim. App. 2017) (citing United States v.
Ivey, 55 M.J. 251, 256 (C.A.A.F. 2001); United States v. Wright, 75 M.J. 501,
508-09 (A.F. Ct. Crim. App. 2015)).
“A military judge abuses his discretion when: (1) the findings of fact
upon which he predicates his ruling are not supported by the evidence of record;
(2) if incorrect legal principles were used; or (3) if his application of the correct
legal principles to the facts is clearly unreasonable.” United States v. Ellis, 68
M.J. 341, 344 (C.A.A.F. 2010). In government appeals, we apply the same
analysis to the facts as our superior court employs. See United States v.
Hallford, 816 F.3d 850, 857-60 (D.C. Cir. 2016); United States v. Murdock, 667
F.3d 1302, 1307 (D.C. Cir. 2012); United States v. Goddard, 491 F.3d 457, 460,
465 (D.C. Cir. 2007); United States v. Yunis, 859 F.2d 953, 958-60, 969-70
(D.C. Cir. 1988); United States v. Johnson, 442 F.2d 1239, 1240, 1243-45 (D.C.
Cir. 1971). Here, the mixed questions of fact and law include: Was there good
cause to sever Al-Nashiri’s existing attorney-client relationship; can the
military judge overrule the CDC’s decision to excuse Al-Nashiri’s counsel; and
can our court proceed in this appeal without learned counsel representing AlNashiri?

17

 V. Jurisdiction
A. Jurisdiction to Decide Government Appeals
Government appeals under the Military Commissions Act are governed by
10 U.S.C. § 950d(a)(1) and (2) 13 and corresponding implementation in the MMC
at R.M.C. 908 and at chapter 20-8 of the RTMC (2011 ed.).
We look initially to case law from the Court of Appeals for the District of
Columbia Circuit for binding precedent, and then to the Court of Appeals for the
Armed Forces and Service Courts of Criminal Appeals for persuasive, nonbinding precedent on interpretation of the provisions of the Military
Commissions Act. 14 See, e.g., United States v. Ali, 718 F.3d 929, 934 (D.C. Cir.
2013) (finding jurisdiction over interlocutory government appeal under 18
U.S.C. § 3731 of a district court order dismissing one or more counts of an
indictment); United States v. Yakou, 428 F.3d 241, 243 (D.C. Cir. 2005) (similar
finding). Jurisdictional limitations on government appeals of military
commissions in 10 U.S.C. § 950d(a)(1) and (2) are similar to those for
government appeals of courts-martial in 10 U.S.C. § 862(a)(1)(A) and (B). 15

13

10 U.S . C. § 950d( a)(1) and (2) s tate :
( a) In ter lo cu tor y App e al. Ex c ep t as prov id ed in subs e c tion (b ), in a tr ia l b y milit a r y
c o mmis s ion und er th is c hap ter, the Un ited S ta te s ma y tak e an in ter lo cu tor y app eal to the
Un ited S ta te s Cour t of Milita r y Commis s ion Re v iew of any ord er or ru ling of the
milita r y judg e-- (1 ) th a t ter min a tes pro ce ed ing s of the milita r y co mmis s ion w ith r es pe c t
to a ch arge or sp ec if ic ation ; (2 ) that ex c lude s ev id enc e th a t is subs tan tia l proof of a f ac t
ma te r ia l in th e pro ce ed ing ; . . . .

14

10 U.S . C. 948b( c) s ta te s :
Cons tru c tion of prov is ion s. Th e pro cedur e s for milita r y co mmis s ions s e t for th in th is
c hap ter ar e b as ed upon th e pro cedur es for tr ia l b y g en era l cour ts- ma r tial und er ch ap ter
47 of th is title ( th e Un ifor m Code of Militar y J us tice) . Ch ap ter 47 of th is title do es no t,
b y its ter ms , app ly to tria l b y milita r y co mmis s ion ex cep t as sp e c if ic a lly prov id ed
th ere in or in th is chap te r, and ma ny of the prov is ion s of ch ap ter 47 of th is title are b y
th e ir ter ms in app lic ab le to milita r y c o mmis s ions . Th e jud ic ia l con s truc tion and
a pp lic a tion of ch ap te r 47 of th is title , wh ile in stru c tive , is th ere fore not of its own for c e
b ind ing on milita r y commis s ions es tab lished und er th is cha p ter .

15

10 U.S . C. § 862( a)(1 ) s ta tes :
[ T ]he Un ited S ta tes ma y app ea l the fo llow ing (o th er th an an ord er or ru ling th a t is, or
th a t a moun ts to, a f ind ing of no t guilty w ith re sp ec t to the c harg e o r spe c if ic a tion) :
(A) An ord er o r ru ling of th e milita ry judg e wh ic h ter min a te s th e p roc ee d ings w ith
r esp e c t to a c harg e o r spe c if ic a tion.
( B) An ord er o r ru ling wh ich exc lud es ev id ence th a t is subs tan tia l proof o f a f ac t
ma te r ia l in th e pro ce ed ing
. . . .

18

 An abeyance order that is “tantamount to [a] dismissal,” United States v.
True, 28 M.J. 1, 3 (C.M.A. 1989) (quoting United States v. Tranowski, 702 F.2d
668, 670 (7th Cir. 1988)), is appealable under 10 U.S.C. § 862 “where
intractability has set in and the direction of a dismissal is imminent,” id. at 4.
See also Johnson, 76 M.J. at 679-80 (Air Force Court of Criminal Appeals
stating, it is “the effect of the order or ruling and whether that effect is
tantamount to a termination of the proceedings” that determines appealability
under the Uniform Code of Military Justice (UCMJ), Article 62). In True, the
military judge ordered the convening authority to provide expert assistance for
the defense, and the convening authority refused to comply. 28 M.J. at 2. The
Court of Military Appeals concluded that the military judge’s order was
appealable and remanded the case to the Navy-Marine Corps Court of Military
Review. Id. at 4.
In another military case, the Air Force Court of Criminal Appeals found it
had jurisdiction to hear the government’s UCMJ, Article 62, appeal of an
abatement order. United States v. Wright, 75 M.J. 501, 509 (A.F. Ct. Crim.
App. 2015) (en banc). The military judge in Wright abated the proceedings until
the government provided discovery materials. Id. at 507-08. The Court of
Criminal Appeals found that “‘intractability’ had set in because the Government
had definitively decided it would not produce the responsive correspondence.”
Id. at 509 (quoting True, 28 M.J. 1). The case was remanded for clarification
and action consistent with the opinion. Id. at 512.
By way of contrast, in United States v. Harding, the Court of Appeals for
the Armed Forces found that the government’s UCMJ, Article 62, appeal was
not authorized. 63 M.J. 65, 67 (C.A.A.F. 2006). In Harding, the military judge
issued a warrant of attachment for medical records and ordered an abeyance of
proceedings pending enforcement. Id. at 66. Harding’s command supported
enforcement of the warrant; however, the Marshal’s Service did not enforce it.
Id. at 67. The Court of Appeals for the Armed Forces concluded, “The rulings
of the military judge in the present case demonstrate that he is prepared to move
forward with the trial if and when the warrant is executed.” Id.
On the record before us, intractability has set in and the prosecution of
Al-Nashiri will not continue. We hold the military judge’s abeyance decision
was predicated upon a situation that is intractable, and the abeyance is the
“functional equivalent” to dismissal of the charges. See True, 28 M.J. at 2.
These circumstances have essentially terminated Al-Nashiri’s proceedings and
thus the interlocutory government appeal before our Court is proper. See id.;

10 U .S. C. § 862( e) s ta te s : “ Th e prov is ion s of th is s e c tion s ha ll b e lib er a lly cons tru ed to
e ff ec t its purpo se s. ” Sec tion 862( e) b e co me s eff ec tiv e on Ja nuar y 1, 2019. A c t De c . 23,
2016, § 5542( a), Pub. L. No. 114-328, 130 S ta t. 2000. S ection 862( e) do es “no t app ly to
c a se s in wh ic h charg e s w ere r efe rred to tr ia l prior to [ its ] eff e c tive da te . ” Un ited S ta tes v.
Ha rdy , 77 M. J. 438 , 439 n .2 ( C.A.A .F. 2018) ( c iting Exe c. Orde r No. 13,825 , 83 F ed. Reg.
9,889 ( Mar . 8 , 2018)) . 10 U .S. C. § 950d( a) doe s no t inc lud e th e libe ra l cons tru c tion
prov is ion of 10 U.S . C. § 862( e) .

19

 Wright, 75 M.J. at 509. We have jurisdiction under 10 U.S.C. § 950d to decide
this appeal. 16 Al-Nashiri’s motion to dismiss this appeal for lack of jurisdiction
is denied for the reasons set forth in this opinion.
B. Pendent Jurisdiction
Having decided we have jurisdiction to decide the abeyance issue, we
must also determine whether we have jurisdiction to decide the following five
issues: (1) Is good cause required before the SDC may be excused from
representing Al-Nashiri; (2) Was there good cause to excuse SDC; (3) Is the
CDC’s decision to excuse SDC reviewable by the military judge or our Court;
(4) Are SDC obligated to comply with the military judge’s order to continue
representation of Al-Nashiri; and (5) Can capital litigation proceed without
learned counsel?
The D.C. Circuit has explained the scope of pendant jurisdiction as
follows:
A court exercises pendent jurisdiction when, while reviewing an order
over which it has appellate jurisdiction, it entertains an appeal from
another order that, although part of the same case or controversy, would
not otherwise be within its jurisdiction. 13 Wright & Miller, Federal
Practice and Procedure § 3523. Our court does not exercise pendent
appellate jurisdiction frequently or liberally, see Gilda Marx, Inc. v.
Wildwood Exercise, Inc., 318 U.S. App. D.C. 109, 85 F.3d 675, 678 (D.C.
Cir. 1996) [per curiam], but it generally will invoke pendent jurisdiction
in two circumstances: (1) “when substantial considerations of fairness or
efficiency demand it,” id. at 679, such as when a nonappealable order is
“inextricably intertwined” with an appealable order, id., or (2) when
review of the former decision is “necessary to ensure meaningful review
of the latter.” Id. (quoting Swint v. Chambers County Comm’n, 514 U.S.
35, 51, 131 L. Ed. 2d 60, 115 S. Ct. 1203 (1995)).
Nat’l R.R. Passenger Corp. v. ExpressTrak, L.L.C., 330 F.3d 523, 527 (D.C. Cir.
2003); see also Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997) (concluding that
jurisdiction was proper where matters were “inextricably intertwined” (citation

16

In the a ltern a tive , appella n t s e eks e x trao rd inary r e lief unde r 10 U .S. C. § 950f
(jur isd ic tion a l prov is ion s) and th e A ll W rits Ac t, 28 U.S .C. § 1651( a). Appe llan t Br. 4, 1318 ( Apr. 12 , 2018) ; s e e Un ited S ta te s v. Fa rnswor th , 456 F .3d 394, 398-403 (3d Cir. 2006)
( exa min ing jur isd ic tion f ir s t und er 18 U .S. C. § 3731 , th e Cr imin a l Appe a ls A c t, and th en
und er 28 U .S . C. § 1651, a s a wr it of ma nd a mu s) ; Un ited S ta tes v. Wh itta ke r, 268 F.3d 185,
193 (3d Cir. 2001) ( “[W]e po in t ou t th a t if we found th a t we d id no t hav e appe lla te
jur isd ic tion, w e cou ld and wou ld exe rc is e ma nda mu s jur isd ic tion. ”) ; Unite d S ta te s v.
F e rnande z-To ledo, 737 F.2d 912 , 913 (11 th Cir. 1984) (f ind ing jur isd ic tion ov er ma n d a mus
a c tion under th e A ll W rits Ac t whe re appe lla te jur isd ic tion w as not au thor ized ). Be c aus e w e
f ind w e h ave jur isd ic tion und er 10 U. S. C. § 950d, it is no t n e ce ss ar y to cons id er A l-N ash ir i’s
a ppe a l as a p e tition for e x trao rd inary r e lief unde r th e A ll W rits A c t. Un ited S ta te s v.
J ohnson, 76 M.J. 673, 676 n .1 (A. F. Ct. Cr im. App. 2017).

20

 omitted)); Rendall-Speranza v. Nassim, 107 F.3d 913, 917 (D.C. Cir. 1997)
(stating that pendent jurisdiction is “favored” when matters are “inextricably
intertwined” or pendent review “will likely terminate the entire case,” providing
a “speedy resolution” and saving judicial resources (citations omitted)).
Notwithstanding this grant of discretionary authority, an appellate “court
exercises pendent appellate jurisdiction sparingly.” Gilda Marx, 85 F.3d at 678.
In this instance, we must ensure either that the additional issues the appeal
presents are “inextricably intertwined” with the appealable abatement order, or
that review of the additional issues is “necessary to ensure meaningful review of
the” abatement order. Id. at 679 (citation omitted).
Al-Nashiri contends there was good cause for the CDC to excuse SDC
from representing him because of ongoing intrusions into his communications
with his counsel. Appellee Br. (July 2, 2018). Al-Nashiri requests that we
order a hearing under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R.
411 (1967) (per curiam), based upon his allegations that the United States
intruded into his attorney-client communications. Appellee Br. at 2, 5-6 (July 2,
2018). Appellant counters that the existence of good cause to withdraw as
counsel is irrelevant because the issue is whether the proper authority excused
SDC. See Appellant Br. at 3-8 (July 23, 2018). Appellant argues that the
military judge is the excusal authority for counsel who have appeared before the
military commission. Id. at 3.
The sole basis for SDC’s requests to cease representing Al-Nashiri, and
the singular reason for the CDC’s finding of good cause for their excusal
directly relates to their determinations that the government was intruding into
Al-Nashiri’s attorney-client relationship. When the D.C. Circuit was
considering intervenors’ claims about the government intrusions, it ordered
extensive discovery into these allegations. App. A to App. A.
We have pendent jurisdiction over the five issues. All five issues are
“inextricably intertwined” with the abatement order, and we must address each
issue to ensure meaningful review of the abatement order. Nat’l R.R., 330 F.3d
at 527 (citation omitted). Al-Nashiri claims that intrusions are the good cause
basis for SDC’s withdrawal from representation of him; thus, we must review
the record to determine the validity of his intrusion claim.
VI. Abstention Based on the First-to-File Rule
Al-Nashiri urges us not to act on this appeal because Mr. Kammen and the
CDC first filed for relief in the district courts for the District of Columbia and
the Southern District of Indiana. Appellee Br. (Mar. 9, 2018); Appellee Br. 23
n.3 (Mar. 15, 2018). “Considerations of comity and orderly administration of
justice dictate that two courts of equal authority should not hear the same case
simultaneously.” Wash. Metro. Area Transit Auth. v. Ragonese, 617 F.2d 828,
830 (D.C. Cir. 1980). “[T]he doctrine of federal comity, [is] a discretionary
doctrine which permits one district to decline judgment on an issue which is
21

 properly before another district.” Church of Scientology of Cal. v. U.S. Dept. of
Army, 611 F.2d 738, 749 (9th Cir. 1979); see also Great N. Ry. Co. v. Nat’l R.R.
Adjustment Bd., 422 F.2d 1187, 1193 (7th Cir. 1970) (“The purposes of the rule
[on comity] are to avoid unnecessarily burdening courts and to avoid possible
embarrassment from conflicting results.”).
While some jurisdictions determine which court should try a case by using
the first-to-file rule, the D.C. Circuit has “emphasized that the district court
must balance equitable considerations rather than using [] ‘a mechanical rule of
thumb.’” Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 349 (D.C.
Cir. 2003) (quoting Columbia Plaza Corp. v. Sec. Nat’l Bank, 525 F.2d 620, 628
(D.C. Cir. 1975)); see also Wise v. United States, 128 F. Supp. 3d 311, 318
(D.D.C. 2015) (listing equitable considerations that “may lead a court to depart
from the usual application of the first-to-file rule” (citing Stone & Webster, Inc.
v. Ga. Power Co., 965 F. Supp. 2d 56 (D.D.C. 2013), aff’d 779 F.3d 614 (D.C.
Cir. 2015))); United States v. Harvey, 791 F.2d 294, 304 (4th Cir. 1986)
(directing transfer of motion to enforce a Virginia plea agreement to South
Carolina where appellant faced a new trial on remand because South Carolina
was familiar with relationship between both prosecutions).
A. Litigation in the District Court for the District of Colombia
On November 2, 2017, the CDC challenged the military judge’s contempt
citation against him in the District Court for the District of Columbia. Baker,
2018 U.S. Dist. LEXIS 101622, at *4-6. The military judge issued the contempt
citation because the CDC refused to obey the military judge’s order to rescind
the CDC’s prior order that ostensibly released Al-Nashiri’s three counsel from
representing Al-Nashiri. Id. at *3. The CDC also challenged his criminal
contempt conviction in a habeas action. Id. at *1, *5-7.
The district court held that the military judge lacked authority to hold
BGen Baker in contempt. Id. at *40 & n.4. The district court explained that
“[10 U.S.C. §] 949m(a) requires that all convictions for any Chapter 47A
offense be by vote of the [primary] members of the commission,” thus making
“clear that summary, unilateral contempt convictions carried out by military
judges are impermissible.” Id.
B. Litigation in the District Court for the Southern District of Indiana
Learned counsel, Mr. Kammen, asked the district court to enjoin his
involuntary recall to represent Al-Nashiri. Appellee Br. 2 (Mar. 9, 2018) (citing
Kammen v. Mattis, No. 1:17-cv-03951 (S.D. Ind. filed Nov. 2, 2017)). He also
sought a declaratory judgment that the CDC “had the authority to excuse him
from the case” and that he had “good cause” to withdraw. Id. The district court
granted Mr. Kammen’s requested temporary restraining order the next day.
Kammen v. Mattis, No. 1:17-cv-03951-TWP-DML, 2017 U.S. Dist. LEXIS
182533, at *2 (S.D. Ind. Nov. 3, 2017). The court held in abeyance any writ of

22

 attachment or warrant for Mr. Kammen’s appearance before the military
commission, until a hearing on the merits. Id. 17
On February 16, 2018, Mr. Kammen filed an “Amended Petition for Writ
of Habeas Corpus and Motion for Declaratory Judgment” in the district court,
discussing the intrusion issues, Mr. Kammen’s ethical basis for withdrawal, and
the CDC’s claim of unilateral authority to grant excusal. Am. Pet. for Writ of
Habeas Corpus & Mot. for Decl. J. 10-30 (S.D. Ind. filed Feb. 16, 2018). Mr.
Kammen’s Prayers for Relief are as follows:
1. Hold an evidentiary hearing that would include an examination of all
the relevant evidence, both classified and unclassified. At the conclusion
of the hearing, issue a writ of habeas corpus ordering that Mr. Kammen
be released from Col. Spath’s unlawful order to appear as counsel and
released from any detention;
2. Issue a declaration specifying that a military commission tribunal
cannot hold Mr. Kammen, a United States citizen and non-combatant,
without explicit statutory authorization and declaring that any further
orders purporting to compel Mr. Kammen to render legal services in
conjunction with U.S. v. Nashiri, at any location, are illegal and null and
void.
[3]. Order other such relief as this Court deems proper and just.
Id. at 47. The district court granted Mr. Kammen’s Motion to Amend Petition
for Writ of Habeas Corpus and Motion for Declaratory Judgment. Kammen, No.
1:17-cv-03951-TWP-DML, Order, doc. 32 (S.D. Ind. Apr. 4, 2018). As of the
date of this decision, the district court had not held a hearing on the merits or
issued an order addressing Mr. Kammen’s prayers for relief.
In 2016, the Court of Appeals for the District of Columbia Circuit
concluded that the direction in Schlesinger v. Councilman, 420 U.S. 738, 756-58
(1975), to generally refrain from enjoining courts-martial, applied equally to
military commissions. In re Nashiri, 835 F.3d 110, 118-28 (D.C. Cir. 2016); see
also Hennis v. Hemlick, 666 F.3d 270, 274 n.5 (4th Cir. 2012) (“[T]he Supreme
Court [in Councilman] extended Younger [v. Harris, 401 U.S. 37 (1971)]
abstention to restrict federal court intervention into on-going court-martial
proceedings.”). The D.C. Circuit Court held in In re Nashiri that the district
court properly decided to decline adjudication of the merits of Al-Nashiri’s
claim for habeas relief. 835 F.3d at 118.

17

The D is tr ict Cour t for th e Sou th ern D is tr ic t of Ind iana found th a t it h ad jur isd ic tion, c iting
H ens ley v . Mun , Ct. , San Jos e- M ilp itas Jud . Dis t., 411 U.S . 345, 351 (1973) , and th a t it h ad
a u thor ity to s ta y pro ce ed ings to ma in ta in the s ta tus quo pend ing fu r ther h e ar ing, c iting
Un ited S ta te s v. Un ited M ine Wo rke r s, 330 U.S . 258, 292-293 (1947 ). Kamm en v. Ma ttis, No.
1 :17- cv-03951- TW P-DML , 2017 U. S. D is t. LEXI S 182533, a t *2 (S .D. Ind . Nov. 3, 2017).

23

 Here, we do not know whether the District Court for the Southern District
of Indiana will adjudicate the merits of the same issues we address in this
decision, and even if it does, whether the district court’s decision would result
in a holding different from our Court on those issues. We do know that we are
required to expeditiously address this appeal under 10 U.S.C. § 950d. AlNashiri’s Motion to Dismiss under the First-Filed Rule (abstention motion) is
denied.
VII. Excusal of Al-Nashiri’s SDC
A. The Manual for Military Commissions (MMC), Regulation for Trial
by Military Commission (RTMC), and Rules of Court (RC) Provisions on
Excusing Defense Counsel
The Secretary of Defense has authority to prescribe rules for trial by
military commissions. 10 U.S.C. § 949a(a). The Secretary has promulgated the
MMC and RTMC. If there is a conflict between the MMC and the RTMC, the
MMC takes precedence. RTMC ¶ 1-1a (2011 ed.).
The CDC is the detailing authority for Al-Nashiri’s civilian defense
counsel and learned counsel. RTMC ¶ 9-1a.5, 9-1a.6. 18 R.M.C. 505(d)(2)(B)
addresses changes in detailed defense counsel after formation of an attorneyclient relationship, as follows:
After an attorney-client relationship has been formed between the accused
and detailed defense counsel or associate or assistant defense counsel, an
authority competent to detail such counsel may excuse or change such
counsel only:
(i) Upon request of the accused or application for withdrawal by such
counsel; or
(ii) For other good cause shown on the record.
R.M.C. 505(f) states:
For purposes of this rule, “good cause” includes physical disability,
military exigency, and other extraordinary circumstances which render
the member, counsel, or military judge unable to proceed with the military
commission within a reasonable time. “Good cause” does not include
temporary inconveniences which are incident to normal conditions of
military life.

18

A c cord ing to th e Of f ice of Military Co mmis s ion s w ebs ite, Ch ap ter 9 of th e Regula tion for
T r ia l b y Milita r y Co mmis s ion ( RTMC) w as ame n d ed in 2016. S ee
www. mc . mi l/L EGAL RESOU RCES /Milita r yCommis s ionsDo cu me n ts. a spx.

24

 (Emphasis added.) Under this regulatory scheme, the detailing authority, in this
case the CDC, determines in his judgment whether to excuse counsel.
The 2016 Manual for Courts-Martial, Rule for Courts-Martial (R.C.M.)
505(d)(2)(B)(i)-(ii) is substantially the same as the excusal provisions in R.M.C.
505(d)(2)(B)(i)-(ii). 19
Here, the CDC views himself as an agency official under the executive
branch whose interpretation of the excusal provisions in the MMC are binding
on the military judge. In the interpretation of the MMC, however, for “matters
within the normal purview of military courts, all military judges are competent
to interpret them and do not afford any deference to an agency interpretation.
For matters within the normal purview of military courts, it is interpretation by
appellate courts, not agency representatives, to which military judges must
defer.” Johnson, 76 M.J. at 683. “[I]t does not matter whether the agency
interpretation is from a trial counsel, the head of a Military Justice Division, or
The Judge Advocate General.” Id.
R.M.C. 108 authorizes the Chief Trial Judge for Military Commissions to
make rules of court that are not inconsistent with the R.M.C. Military
Commissions Trial Judiciary (Mil. Comm. Trial Jud.), Rule of Court (RC)
4.2.a(3) (Sept. 1, 2016), states, “If detailed military counsel makes an
appearance before a Military Judge, excusal must be approved by the Military
Judge. (See RC 4.4.b.).” RC 4.4.a-b defines the process for withdrawal,
excusal, and relief of “detailed GS civilian defense counsel,” Ms. Spears and
Ms. Eliades, and “qualified civilian counsel,” Mr. Kammen, after entering an
appearance and after arraignment. “GS civilian defense counsel” and “detailed
civilian defense counsel” must obtain approval from the military judge for
excusal and release as counsel after making an appearance. RC 4.2.b-c. RC
4.4.b reiterates, “A defense counsel who has entered an appearance in a
Commission session will not be excused without permission of the Military
Judge. (See also RC 4.2.a and RC 4.2.b).” The term “defense counsel” in RC
4.4.b encompasses Al-Nashiri’s SDC. Accordingly, the military judge is the
approval authority for excusal of Al-Nashiri’s learned counsel and federal
government employed counsel and for termination of their attorney-client
relationship with Al-Nashiri after appearance. RC 4.2.a(3), 4.2.b, 4.2.c, 4.4.b. 20

19

A l- Na sh ir i no tes th a t Manu a l for Cour ts -Mar tia l (2016 ed.) , Ru le for Cour ts -Mar tia l
( R. C. M.) 506( c), is no t in c luded in th e Manu a l for Militar y Co mmis s ion s. Appe llee Br. 1011 ( Mar. 15, 2018) ; App e lle e Br . 2-3 (Apr. 9, 2018). R. C.M. 506(c) s ta te s :
Ex c ep t as oth erw is e prov id ed in R.C. M. 505(d)(2) and sub se c tion (b)(3) o f th is ru le ,
d efen s e coun se l ma y be ex cus ed only w ith the e xpre ss cons en t o f th e a c cus ed, or b y
th e milita r y judg e upon app lica tion fo r w ithdr aw a l b y th e de fen s e couns e l for good
c au se shown.
20

The Ma y 5, 2014 , Milita r y Co mmis s ion s Tr ia l J udic iar y Ru le of Cour t 4 .4.b s ta te s th a t
a f te r arr aign me n t, “A de fen s e couns e l who ha s e n ter ed an app ear an ce in a Co mmis s ion s
s e ss ion will no t be ex cus ed withou t p er mis s ion of th e Milita r y Judge .” In the S ep te mb e r 1,

25

 B. Military Case Law on Excusing Defense Counsel
Military case law under the UCMJ has long held that release of defense
counsel from representation after formation of an attorney-client relationship
will receive close scrutiny at the trial and appellate levels. See, e.g., United
States v. Hutchins, 69 M.J. 282, 293 (C.A.A.F. 2011) (holding counsel’s
separation from active duty was “invalid basis” for termination of attorneyclient relationship); United States v. Acton, 38 M.J. 330, 337 (C.M.A. 1993)
(noting “defense counsel may be excused only with the express consent of the
accused, or by the military judge upon application for withdrawal by the defense
counsel for good cause shown” (quoting R.C.M. 506(c)); United States v. Baca,
27 M.J. 110, 118 (C.M.A. 1988) (holding that “existing attorney-client
relationship [of five months] cannot be terminated without the accused’s consent
merely for the convenience of the Government”); United States v. Kelly, 16 M.J.
244, 246-47 (C.M.A. 1983) (considering good cause to terminate based on scope
and timing of representation); United States v. Iverson, 5 M.J. 440, 444 (C.M.A
1978) (concluding termination of “established attorney-client relationship” for
post-trial representation improper when based on administrative convenience of
service and without appellant’s consent); United States v. Eason, 21 U.S.C.M.A.
335, 337, 45 C.M.R. 109, 111 (1972) (concluding that withdrawal and re-referral
of charges for stateside disposition based on administrative convenience of
service did not validly terminate “established attorney-client relationship”);
United States v Cutting, 14 U.S.C.M.A. 347, 350, 351-52, 34 C.M.R. 127, 13132 (1964) (ordering rehearing where appellant’s requests for counsel were not
presented to appropriate decision authorities and lack of “free-will” in day-oftrial election to proceed without attorney); United States v. Vanderpool, 4
U.S.C.M.A. 561, 565, 16 C.M.R. 135, 139 (1954) (discussing whether denial of
continuance for review of unavailability determination as to requested counsel
was denial of counsel and thus voided jurisdiction).
In courts-martial cases, the military judge is required under R.C.M.
505(d)(2)(B) and 813(c) to ensure “that the record sets forth the basis for the
good cause determination.” United States v. Hohman, 70 M.J. 98, 99 (C.A.A.F.
2011) (per curiam) (quoting Hutchins, 69 M.J. at 291); see also United States v.
Catt, 1 M.J. 41, 48 (C.M.A. 1975) (stating same); United States v. Phillips, 56
M.J. 771, 775 (C.G. Ct. Crim. App. 2002) (citing multiple cases and stating
good cause must be shown).
Under the regulatory structure in the MMC, the detailing authority, in this
case the CDC, makes the initial determination whether in his judgment there is
good cause to excuse counsel. See R.M.C. 505(d)(2)(B). He then must present
his decision and the basis for it to the military judge who is required to do two
things. First, the military judge must ensure that there is a factual basis for the

2016, rev is ion, Ru le 4 .4.b re ma in ed th e sa me ; how ever , th e r equ ir e me nt fo r excu sa l b y the
milita r y judg e w as sp ecif ica lly adde d in two add ition a l p lac e s in Ru le 4, a t 4.2. a(3) and 4 .2. c
a nd b y r ef ere nc e a t 4 .2.b. A l-N ash ir i w a s arr a ign ed on Nov e mb er 9, 2011. AE 087D a t ¶ 1.

26

 CDC’s decision to excuse counsel, and that it is set forth on the record. See
Hutchins, 69 M.J. at 291. Second, the military judge must find as a matter of
law that good cause has been established to excuse counsel. See Hohman, 70
M.J. at 99.
This process is not controversial. It has long been the law of the military
court system. The Coast Guard Court of Military Review observed:
Although R.C.M. 505 indicates that these actions may be taken by the
authority who details counsel, we believe that after the trial commences it
is only the military judge who may sever the attorney-client relationship,
except in the limited circumstance under R.C.M. 506(b)(3).
. . . [W]e believe the military judge, not the staff judge advocate, is
the appropriate authority to effect such action. This outlook is consistent
with the view that the military judge controls the trial proceedings and
ensures that the rights of the accused are protected.
United States v. Bevacqua, 37 M.J. 996, 1001-1002 (C.G.C.M.R. 1993); see
United United States v. Blaney, 50 M.J. 533, 540 (A.F. Ct. Crim. App. 1999)
(finding withdrawal letter from counsel who appellant desired for continued
representation “was no more than an application for withdrawal subject to
approval by the military judge”). Further, “severing the attorney-client
relationship should be accomplished only after good cause has been established
upon a full airing of the issue on the record.” Bevacqua, 37 M.J. at 1002.
Case law under the UCMJ also recognizes that conflicts of interest or a
breach of ethical duties may raise ethical issues that establish good cause for
disqualification of counsel. See United States v. Humpherys, 57 M.J. 83, 88-89
(C.A.A.F. 2002) (finding no abuse of discretion in denial of a disqualification
motion based on assistant trial counsel’s prior representation of appellant);
United States v. Strother, 60 M.J. 476, 478, 484 (C.A.A.F. 2005) (finding no
abuse of discretion in denial of disqualification motion based on attorney who
assisted Article 32 investigating officer and then served as trial counsel on same
case). Thus, SDC had some basis for their applications for excusal.
The CDC and SDC’s assertion, however, that the applicable rules entitle
the CDC to unilaterally excuse defense counsel for good cause after appearance
on behalf of an accused, without review or approval by the courts, lacks merit.
Not only does this claim have no basis in law but it is contradicted by settled
law. After good cause is shown on the record, defense counsel also must secure
approval of the military judge before they are excused and released as counsel.
See RC 4.2.a(3), 4.2.b, 4.2.c, 4.4.b. These RC provisions are in addition to the
provisions for excusal of defense counsel under R.M.C. 505(d)(2)(B).

27

 C. Article III Courts Excusal of Defense Counsel
“As a fundamental premise, counsel is under an obligation to see their
legal representation through to completion once [he or] she initiates the attorney
client relationship. The decision to grant or deny counsel’s motion to withdraw
is committed to the discretion of the district court.” Thorpe v. United States,
445 F. Supp. 2d 18, 22 (D.D.C. 2006) (citation omitted); see also United States
v. Williams, 717 F.2d 473, 475 (9th Cir. 1983); Laster v. District of Columbia,
460 F. Supp. 2d 111, 113 (D.D.C. 2006) (citing Whiting v. Lacara, 187 F.3d
317, 320 (2d Cir. 1999)); Fleming v. Harris, 39 F.3d 905, 908 (8th Cir. 1994);
United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994); Washington v.
Sherwin Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982). Appointed
counsel “should not seek to be excused from undertaking the representation
except for compelling reasons.” United States v. O’Connor, 650 F.3d 839, 85152 (2d Cir. 2011); see D.D.C. L. Crim. R. 44.5(d) (2018) (“The Court may deny
a motion to withdraw if the attorney’s withdrawal would unduly delay trial of
the case or be unfairly prejudicial to any party, or otherwise not be in the
interests of justice.”); S.D. Ind. L. Crim. R. 83-7(c) (“Withdrawal of
Appearance. (1) An attorney must file a written motion to withdraw his or her
appearance.”).
There are limits to a district court judge’s discretion to order a defense
counsel to continue to represent a defendant against counsel’s wishes. See
United States v. Oberoi, 331 F.3d 44 (2d Cir. 2003), rev’d on other grounds,
375 Fed. App’x 87 (2d Cir. 2019). In Oberoi, the defense counsel asked to
withdraw because he did not want to cross-examine a former client. Id. at 47.
The Second Circuit stated, “[I]f forcing an attorney to continue representation
will cause a violation of the Code of Professional Responsibility and possibly
subject the attorney to sanctions, it will be an abuse of discretion not to grant
the motion to withdraw.” Id. at 47-48. The Second Circuit “vacated the district
court’s denial of the Defender’s motion to withdraw and remanded for
appointment of new counsel.” Id. at 52. The court reasoned that the
“Defender’s interpretation [of a New York Disciplinary Rule concerning
conflicts between clients] is plausible and, as one commentator points out, there
are sound policy reasons for refusing to allow a criminal defendant to consent to
the use of his secrets and confidences to his disadvantage.” Id. at 48; see also
United States v. Blackledge, 751 F.3d 188, 198-99 (4th Cir. 2014) (holding the
record was inadequate to support denial of appointed counsel’s excusal request
that was based on a conflict with a client).
When an attorney requests to be excused in a client-conflict situation,
denying that request is particularly perilous. In order to protect the rights of a
current client, a defense counsel may be required to cross-examine a former
client and utilize privileged information or the product of defense counsel’s
investigation regarding the former client. The former client may not fully
understand these and other pitfalls of waiving conflict of interest. The case
before us, however, is not a case of client-conflict, and thus Oberoi and
Blackledge are inapposite.
28

 D. Professional Responsibility Rules in the Department of Defense and
States of Licensure for the Three Civilian Counsel
The SDC contend that their state rules of professional responsibility
require them to withdraw from representing Al-Nashiri. AE 339J, AE 339K &
AE 339L at 6. Professional responsibility rules for defense counsel appearing
before military commissions are addressed in R.M.C. 109(b)(3), which states:
Recognizing the specialized nature of military commissions and
military commissions practice the following principles and procedures
shall apply to trials by military commission under chapter 47A of title 10,
United States Code, and this Manual:
(A) In effecting a choice of law between the professional
responsibility rules of a counsel’s licensing jurisdiction and the rules,
regulations, and instructions applicable to trials by military commission,
the latter shall be considered paramount, unless such consideration is
expressly forbidden by the rules of a counsel’s licensing jurisdiction.
* * * *
(B) Military commissions shall be deemed a “court,” “forum,” or
“tribunal” for the purposes of construing any choice of law provision in
the professional responsibility rules of a counsel’s licensing jurisdiction
that defers to the rules of a court, tribunal, or other forum.
The DoD does not have detailed ethical rules pertaining to the termination
of representation before tribunals; however, the ethical rules for the Army, Navy
(and Marine Corps), and Air Force provide persuasive guidance. The service
ethical rules apply to courts-martial and representation before other tribunals.
See Army Reg. 27-26, Legal Services, Rules of Professional Conduct for
Lawyers, at i (June 28, 2018) [hereinafter AR 27-26]; Navy JAGINST 5803-1E,
Professional Conduct of Attorneys Practicing under the Cognizance and
Supervision of The Judge Advocate General, ¶ 4 (Jan. 20, 2015) [hereinafter
Navy JAGINST 5803-1E]; A.F. Guidance Mem. for A.F. Instr. 51-110,
Professional Responsibility Program (Aug. 5, 2014), at 3 (May 15, 2018)
[hereinafter AFGM-AFI 51-110]. Service ethical rules require counsel to
continue representation when ordered to do so by the tribunal or other
competent authority, notwithstanding good cause for terminating the
representation. See Army Reg. 27-26, r. 1.16(c)-(d); Army Reg. 27-10, Legal
Services, Military Justice, ¶ 6-9 (May 11, 2016); Navy JAGINST 5803-1E, r.
1.16.c-d; AFGM-AFI 51-110, r. 1.16(c)-(d).
Mr. Kammen and Ms. Spears are licensed to practice law in Indiana. AE
339J & AE 339L at 6. Ms. Eliades is licensed to practice law in Illinois. AE
339K at 6. On December 23, 2008, Mr. Kammen signed an affidavit agreeing to
comply with all applicable regulations and rules for counsel appearing before
the military commissions, including any rules of court. AE 389 at 9-15. Mr.
29

 Kammen was “contractually appointed” to represent Al-Nashiri, whereas Ms.
Spears and Ms. Eliades were detailed as “assistant defense counsel” to represent
him. See AE 389D at 11-15 (discussing interplay among R.M.C. 505(d)(2),
R.M.C. 502(d)(7), and RTMC, ch. 9). Ms. Spears and Ms. Eliades contended
that as civilian assistant defense counsel they are not required under the Rules
of Court to seek the military judge’s permission to withdraw. See AE 389KK &
AE 389LL at 5-7 (citing RC 4.2.a.3, 4.2.c (requiring military judge’s approval
for excusal of military counsel and civilian defense counsel who make an
appearance before a military judge); RC 4.2.e (including “no comparable
requirement for assistant defense counsel”)).
The Illinois Rules of Professional Conduct of 2010, Rule 1.16, Declining
or Terminating Representation, provides:
(c) A lawyer must comply with applicable law requiring notice to or
permission of a tribunal when terminating a representation. When ordered
to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client’s interests, such as
giving reasonable notice to the client, [and] allowing time for employment
of other counsel . . . .
See also Ind. R. of Prof’l Conduct r. 1.16(c)-(d) (stating same verbatim). The
comments to Illinois Rule 1.16 and Indiana Rule 1.16 are the same and state,
“When a lawyer has been appointed to represent a client, withdrawal ordinarily
requires approval of the appointing authority. See also Rule 6.2. Similarly,
court approval or notice to the court is often required by applicable law before a
lawyer withdraws from pending litigation. . . .” Id. at r. 1.16 cmt. [3]; Ill. R. of
Prof’l Conduct r. 1.16 cmt. [3]. In Indiana state courts, “[a] motion for
withdrawal of representation shall be granted by the court unless the court
specifically finds that withdrawal is not reasonable or consistent with the
efficient administration of justice.” Ind. R. of Trial P. 3.1(H)(2).
E. Conclusion on Excusal of Al-Nashiri’s SDC
Al-Nashiri asserts the military judge failed to consider a series of
intrusions extending over several years. See Appellant Br. 1-2 (July 16, 2018).
He also contends that the military judge erroneously relied on Weatherford v.
Bursey, 429 U.S. 545 (1977), and thus applied the wrong standard for relief; that
is, intrusion and prejudice. 21 Id. at 13. Al-Nashiri urged relief without

21

App e llee urg ed our Cour t to ho ld th a t th e milita r y judg e “Abu sed his D iscr e tion W hen h e
Found No Six th A me ndme n t V io la tion fo r Ongo ing In terf er enc e w ith Mr. A l-Na sh ir i’ s
A ttorn e y- Clie n t Re la tion ship .” App e lle e Br . 6 ( Ju ly 2 , 2018) (e mp ha sis o mitte d). The
c on ten ts of a ppe llee ’s br ief r e la ting to the a llege d in tru s ions a re c las s ifie d. Id . App e llan t
prov id ed an un c las s if ied r e spons e. App e llan t Br. (Ju ly 16, 2018).

30

 evidence of prejudice, citing Caldwell v. United States, 205 F.2d 879 (D.C. Cir.
1953), and Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951). Id. at 1315.
The government made an unequivocal representation to the military judge
that it did not intrude into Al-Nashiri’s privileged communications with his
attorneys. Wells Decl. ¶¶ 15-16, 19 & n.13, 23-24. The military judge stated,
“[N]o evidence has yet been presented to demonstrate intrusions in this case
affecting this accused which would ethically require withdrawal or
disqualification of outside appointed learned counsel.” Appellant Br. 8 (July
23, 2018) (alterations in original) (quoting Tr. 10,025). Moreover, even if there
was evidence of an intrusion into Al-Nashiri’s attorney-client relationship, there
also must be evidence of prejudice before relief may be granted. 22
Our superior Court has relied on Weatherford and its progeny to question
the continued vitality of the per se rule in Caldwell and Coplon. See United
States v. Kelly, 790 F.2d 130, 136-37 (D.C. Cir. 1986). The D.C. Circuit
concluded that “some prejudice must be shown as an element of a sixth
amendment violation.” Id. at 137 (citing Weatherford). In reaching this
conclusion, the Court noted widespread acceptance of the four factors that
sprang from Weatherford, which are used to consider whether a Sixth
Amendment violation due to intrusions has been established. Id. These four
factors are:
(1) was evidence used at trial produced directly or indirectly by the
intrusion; (2) was the intrusion by the government intentional; (3) did the
prosecution receive otherwise confidential information about trial
preparations or defense strategy as a result of the intrusion; and (4) were
the overheard conversations and other information used in any other way
to the substantial detriment of the defendant?
Id.; see also United States v. Pinson, 54 M.J. 692, 696 (A.F. Ct. Crim. App.
2001) (citing four factors).
Before considering the issue of prejudice, however, there must first be
evidence of an intrusion into the relationship between Al-Nashiri and his
counsel. No such evidence has been presented to-date. We have no evidence
the prosecution received or attempted to receive any of Al-Nashiri’s attorneyclient strategy or communications. See AE 389F at 5-6. Of course, the door is
not closed to Al-Nashiri on this issue. If his defense counsel obtain and present
such evidence, the military judge should make findings and consider an
appropriate remedy.

22

I f th ere is e v iden c e of a n in tru s ion in to A l- Nas hir i’s a ttorn e y-c lien t re la tion sh ip, th e
milita r y judg e sh a ll d e te r min e ( a) wh e ther an y pr iv ileg ed infor ma tion h as b e en prov id ed to
th e pro se cu tion and (b ) if A l-Na sh iri h as be en pr ejud ic ed. S ee Un ited S ta tes v. Kelly , 790
F .2d 130, 136-37 (D. C. Cir . 1986). Th en, b a sed upon a fu lly d ev e loped r e cord, the milita r y
judg e sh a ll ma k e f ind ing s of fa c t and con c lus ion s of law and en ter an ord er h e d ee ms jus t.

31

 Regarding authority over SDC excusal, the military judge ruled that the
CDC had no authority to excuse Mr. Kammen, which if permitted ostensibly
would allow the CDC to unilaterally terminate Mr. Kammen’s attorney-client
relationship with Al-Nashiri. See id. The CDC does not have this authority.
Rather, after counsel has appeared, the military judge “is the appropriate
authority to determine if good cause is shown on the record to warrant excusal
of counsel pursuant to R.M.C. 505(d)(2)(B).” Id. at 5. The military judge
ordered Mr. Kammen to appear and continue to represent Al-Nashiri. AE 389A
¶ 2; Tr. 10,040. Mr. Kammen was obligated to comply with the military judge’s
ruling.
As the Supreme Court held in a dispute regarding whom between the
legislative and the executive, as opposed to the judiciary, determines legal
rights: “To hold the political branches have the power to switch the
Constitution on or off at will . . . [would] lead[] to a regime in which Congress
and the President, not this Court, say ‘what the law is.’ Marbury v. Madison, 5
U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (1803).” Boumediene v. Bush, 553
U.S. 723, 765 (2008); see also Montana v. Clark, 749 F.2d 740, 745 (D.C. Cir.
1984) (“Beyond question, it is the unique province of the judiciary to ‘say what
the law is,’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-178, 2 L. Ed. 60
(1803).”). This Supreme Court ruling applies equally here, meaning the military
judge in Al-Nashiri’s military commission proceedings has the authority to “say
what the law is.”
Mr. Kammen also was required to obey the military judge’s orders to
continue as Al-Nashiri’s counsel notwithstanding his disagreement with the
orders on ethical grounds. “While attorneys are advocates, they are also
officers of the court. Their duty to their clients cannot override their duty to
respect the system of justice, including court rules and orders.” Wagner v.
Williford, 804 F.2d 1012, 1017-18 (7th Cir. 1986); see also Steinle v. Warren,
765 F.2d 95, 101 (7th Cir. 1985) (Counsel “is an officer of the court and [] his
duty to the court is paramount, even to the interests of his client. . . .
[C]onduct[] in total disregard for this duty cannot be countenanced.”); United
States v. Moncier, 571 F.3d 593, 599 (6th Cir. 2009) (“Lawyers are required to
obey even incorrect orders; the remedy is on appeal.” (citation omitted)).
Mr. Kammen did not secure a ruling from the military judge that the
CDC’s decision to terminate his attorney-client relationship with Al-Nashiri was
based on good cause involving “extraordinary circumstances” as defined by
R.M.C. 505(f). He served as Al-Nashiri’s learned counsel for nine years, was
paid about $180 an hour, and received almost two million dollars of DoD funds
for his representation. Tr. 10,584; 10,735. Further, Mr. Kammen did not secure
the military judge’s approval to withdraw even had there been a good cause
finding. He was obligated to obtain the military judge’s permission to
withdraw. We conclude that Mr. Kammen remains counsel of record.
Accordingly, he has a legal and ethical duty to resume representation of AlNashiri.
32

 VIII. Al-Nashiri’s Right to Learned Counsel
Al-Nashiri objected to the absence of learned counsel to assist in the
litigation of this appeal. 23 Appellee Br. 23, 26-28 (Mar. 15, 2018). We granted
a delay for Commander (CDR) Brian Mizer, U.S. Navy, to file a supplemental
brief in this case. CMCR Order (May 23, 2018). CDR Mizer is an experienced
appellate attorney, who represented Al-Nashiri on a prior active duty tour from
2013 to 2015. Appellee Br. 1-3 (Apr. 19, 2018). He represented Al-Nashiri as
one of several appellate counsel. See United States v. Al-Nashiri, 191 F. Supp.
3d 1308, 1311 (CMCR 2016) (concerning pretrial decision to dismiss charges
for lack of subject-matter jurisdiction); Al-Nashiri, 62 F. Supp. 3d at 1305-06
(concerning motion to dismiss appellant’s interlocutory appeal). Presently,
CDR Mizer’s “primary responsibility is providing learned counsel to airmen
with an adjudged sentence of death on direct appeal.” Appellee Br. Attach. A,
Mizer Decl. ¶ 2 (May 22, 2018). The military judge described CDR Mizer as a
learned counsel and said he believed CDR Mizer qualified as such. 24 Tr. 11,011;
see Tr. 11,098-99; 11,104. The military judge ordered the convening authority
to take action to return CDR Mizer to active duty so that CDR Mizer could
represent Al-Nashiri as learned counsel. Tr. 11,011.
We will briefly discuss the issue of providing learned counsel to AlNashiri. The Military Commissions Act states an accused has the right to
learned counsel, as follows: “When any of the charges sworn against the
accused are capital, to be represented before a military commission in
accordance with clause (i) [concerning non-capital charges] and, to the greatest
extent practicable, by at least one additional counsel who is learned in
applicable law relating to capital cases . . . .” 10 U.S.C. § 949a(b)(2)(C)(ii)
(emphasis added); see also United States v. Hennis, 77 M.J. 7, 9 (C.A.A.F.
2017) (“We recognize that the Military Justice Act of 2016 substantially amends
Article 70, UCMJ, by requiring ‘[t]o the greatest extent practicable, in any

23 A l- Na sh ir i a nd a mic i c ite th e A me ric an Bar Ass oc ia tion Gu id e line s for th e Appo in tme n t
a nd P erfor ma nc e of Coun se l in De a th Pen a lty Ca s es , 31 Hof s tra L . Rev. 913 (2003)
[h er e inaf ter A BA Gu idelin es ], as the sou rc e fo r le arned coun se l qu a lif ic a tion s. App e lle e Br .
26-27, 30-31 ( Mar. 15, 2018) ; A mi c i Br. , Ex . 1 a t 10-14 (Apr. 18, 2018) ; s ee W igg in s v .
Sm ith, 539 U. S. 510 , 524 (2003 ) (d es cr ib ing A BA Gu id e lin es a s “we ll d ef in ed nor ms ” ). Th e
2003 A BA Gu id e line 5.1 lis ts qu a lif ica tion s for le arn ed coun se l in c apita l ca se s. Th e
gu id e line foc us es on coun se l’ s ab ility to prov id e “h igh qua lity leg a l re pre s en ta tion ” r a the r
th an “quan tita tive me a sur es ” b as ed on p as t expe r ien c e in de a th pen a lty litig a tion.
Co mme n ta ry to ABA Gu id e line 5.1, a t 963-64. The D. C. Cir cu it h as relie d upon the A BA
Gu id e line s to as c er ta in th e r equ ir e me n ts for mid- tr ia l subs titu tions of coun se l in a nonc ap ita l ca s e. S ee Un ited S ta tes v . B e ll, 795 F .3d 88 , 96 n .8 ( D. C. Cir . 2015) .
24

In an ord er, the milita ry judg e no te d th a t Co mma n d er ( CDR) Mize r tes tif ied to h is “ c ap ita l
qu a lif ic a tion s” a t a mo tions he ar ing b efor e th e c o mmis s ion. AE 348 M a t 1 & n.2 (c iting
Unoff ic ia l/Un au then tica ted Tr . at 6,614-88 ) ; s ee AE 348L . The milita ry judg e conc luded
CD R Miz er w as qua lif ied as le arn ed couns e l in th is c a se . Tr. 11,011 ; se e Tr . 11,098-99 ; A E
348 M a t 2. L T P ie tte obj ec ted to th is de ter min a tion. Tr . 11,098-99 .

33

 capital case, at least one defense counsel . . . be learned in the law.’” (citation
omitted)). R.M.C. 506(b) states:
Capital Offenses. In any case in which . . . the convening authority refers
a charge to a capital military commission, the accused has the right to be
represented in accordance with section (a) above [concerning general
right to counsel], and by at least one additional counsel who is learned in
applicable law relating to capital cases. . . . Such appointment of learned
counsel shall be in accordance with regulations prescribed by the
Secretary of Defense. . . .
See also RTMC ¶ 9-1.a.6 (2016 ed.).
We conclude that Al-Nashiri’s right to learned counsel is defined by 10
U.S.C. § 949a(b)(2)(C)(ii) and is only permitted to the “greatest extent
practicable.” That “language makes plain that there is no statutory requirement
for learned counsel.” Hennis, 77 M.J. at 9. Thus, the statutory right to learned
counsel is not absolute. To the degree that R.M.C. 506(b) and RTMC ¶ 9-1.a.6
are read to expand what 10 U.S.C. § 949a(b)(2)(C)(ii) requires, they exceed the
rule-making authority granted by Congress to the Secretary of Defense in 10
U.S.C. § 949a(a). The Secretary’s authority is limited to promulgating rules
that are “not . . . contrary to or inconsistent with this chapter.” 10 U.S.C. §
949a(a). Any expansion of the right to learned counsel in R.M.C. 506(b) and
RTMC ¶ 9-1.a.6 to an absolute right, as Al-Nashiri argues, is both “contrary to
[and] inconsistent with” the limited right established by 10 U.S.C. §
949a(b)(2)(C)(ii). Id.
While there may not be an absolute right to learned counsel, the right to
learned counsel in a military commission case should not be abridged absent
unusual circumstances. The term “practicable” is not defined. In an assessment
of practicality, our Court and the military commission must consider: (1)
whether the proceeding is at a “critical stage,” see Bell, 795 F.3d at 95; (2) the
qualifications of the lawyer(s) who represent the accused in the absence of
learned counsel, see ABA Guideline 5.1; (3) the amount of delay caused, or
likely to be caused, by the absence of learned counsel, see Seale, 461 F.2d at
371; D.D.C. L. Crim. R. 44.5(d) (2018); and (4) any other facts relating to the
determination of what is practicable. This assessment must be done with due
regard to the fact that Al-Nashiri is facing capital charges. The benefit of the
doubt and the burden of reasonable delay should be resolved in Al-Nashiri’s
favor.
Litigation in this appeal has proceeded for several months without learned
counsel because representation by learned counsel for Al-Nashiri was not
practicable based on the four factors we have set forth above. We conclude his
right to qualified appellate counsel was satisfied during this appeal of the
military judge’s abatement order.
IX. Authority of the Military Judge over Excusal of SDC

34

 When the UCMJ was amended in 1968, Congress intended military judges
to have powers during trials similar to that of U.S. District Court (Article III)
judges. 25 The military judge “is the presiding officer in a military commission.”
R.M.C. 801(a); accord 10 U.S.C. § 948j(a). “As a general rule, a military judge
controls the proceedings in a trial referred to his court from beginning to end.”
United States v. Nivens, 21 U.S.C.M.A. 420, 425, 45 C.M.R. 194, 199 (1972).
The military judge has the responsibility to ensure “that military commission
proceedings are conducted in a fair and orderly manner, without unnecessary
delay or waste of time or resources.” R.M.C. 801(a), Discussion. The military
judge must “exercise reasonable control over the proceedings.” R.M.C.
801(a)(3). Enabling defense counsel to withdraw from representation whenever
they disagree with the rulings of the military judge would largely eliminate fair
and orderly trials. R.M.C. 505(d)(2)(B) must be considered in the context of
other provisions of the MMC. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505
U.S. 88, 99 (1992) (stating a “single sentence” should not be taken out of the
context of the “whole law” (citation omitted)); Petit v. U.S. Dep’t of Educ., 675
F.3d 769, 781-82 (D.C. Cir. 2012) (“[W]e consider not only the language of the
particular statutory provision under scrutiny, but also the structure and context
of the statutory scheme of which it is a part.” (alteration in original) (citation
omitted)).
We agree with the discussion by the Court of Appeals for the Sixth
Circuit in Moncier, addressing defense counsel’s contention that he had an
ethical duty to disobey the trial court to protect his client’s constitutional
rights:
There is no right of revolution in a United States District Court. The
lawyer’s duty is not to defy the judge’s orders, but to follow them. It is
true enough that judges, like other humans, will make mistakes, and that
those mistakes will sometimes be to the detriment of a client’s rights. But
that is what Circuit Courts exist to remedy. “Lawyers are required to
obey even incorrect orders; the remedy is on appeal.” In re Dellinger,
502 F.2d 813, 816 (7th Cir. 1974). We entirely agree with [the trial
judge] that “someone must be in control of what happens in a
courtroom[,]” and that the someone is “the trial judge, not the lawyer for
a criminal defendant nor the lawyer for the United States.” May 30, 2007
Opinion and Order at 23.

25

Congr es s in tended for milita r y judg es to hav e pow ers “ mo r e c los e ly a llie d” to the pow ers
of Ar tic le I II judg e s, and th e pow ers of a milita r y judg e und er th e Un ifor m Code of Militar y
J us tice ar e mo d e led af te r tho se of a f ede ra l dis tr ic t cour t judg e. Se e In cr ea s ing th e
P ar tic ipa tion of L aw Off ice rs and Coun se l on Cour ts- Mar tia l, S. Rep. No. 90-1601, a t 3
(1968) (submitte d b y Se n. Sa mu e l J . Erv in, Jr.) (s ta ting one purpo se of leg is la tion pr e ced ing
th e Militar y Jus tic e A c t of 1968 w as to g iv e milita r y judg es in cour ts -ma r tia l “func tions and
pow ers more c los e ly a llie d to tho se of F ede ra l d is tr ic t judge s ”). S ee 10 U .S. C. §§ 826 , 836,
839.

35

 571 F.3d at 599 (second brackets in original); see also United States v. Seale,
461 F.2d 345, 371 (7th Cir. 1972) (“As governor of the trial, the trial judge
must have the authority necessary to ensure the orderly and expeditious progress
of the proceedings. His directives in exercise of this authority must be obeyed;
otherwise the clear result would be courtroom chaos.”). The Moncier discussion
on defense counsel conduct in U.S. District Court applies with equal force to the
lawyers who appear before military commissions. Defense counsel’s
abandonment of Al-Nashiri, despite orders of the military judge that counsel
continue to represent him, disrupted “the orderly and expeditious progress of the
proceedings.” Seale, 461 F.2d at 371. Al-Nashiri was left without several
available counsel, including learned counsel, for more than six months and the
trial was abated because the military judge reasonably concluded that the trial
could not proceed any further under the circumstances.
The CDC’s asserted authority to excuse counsel whenever he sees fit
improperly usurps the authority of the military judge and positions the CDC to
take control of Al-Nashiri’s trial. See Pennsylvania v. Local Union 542, Int’l
Union of Operating Eng’rs, 552 F.2d 498, 509 (3d Cir. 1977). In Union, the
Court of Appeals for the Third Circuit said an attorney who deliberately violates
judicial orders in pursuit of
a course that he determines to be in the best interests of his client,
offends the dignity and authority of the court and thereby obstructs the
administration of justice. To hold otherwise would be to strip trial judges
of their power to supervise the proceedings before them, and to clothe
counsel with the authority to conduct trials in whatever manner they deem
appropriate.
Id. (citation omitted). Defense counsel’s conduct caused a significant delay in
the Union trial. Id.
The reason for empowering the trial judiciary to control excusal of
counsel is simple. Permitting the CDC to unilaterally approve excusal of
counsel after entry of appearance on behalf of an accused, at any time during the
pendency of a case, will cause havoc with adjudication of the charges against
the accused, as amply demonstrated in Al-Nashiri’s case. Under the CDC’s
view of his authority, he may remove defense counsel the moment the
government rests or before closing arguments on the merits without the approval
of the military judge. The military commission would have no power to stop the
withdrawal. This could force a mistrial as the accused would have no one to
represent him or it could delay the trial for months, as it has here. Even in a
situation where the excusal occurs during pretrial motions, excusal of Mr.
Kammen after nine years of representation without good cause or Al-Nashiri’s
consent may prejudice Al-Nashiri’s right to a fair trial.
Moreover, replacement of Al-Nashiri’s learned counsel could take months
because a security clearance for counsel is required. In the event new learned
counsel is required pursuant to 10 U.S.C. § 949a(b)(2)(C)(ii), a delay of this
36

 magnitude may cause a mistrial, as the accused would not have the legal
representation he is required to have. See United States v. Cronic, 466 U.S.
648, 659 (“[A] trial is unfair if the accused is denied counsel at a critical stage
of his trial.); United States v. Decoster, 624 F.2d 196, 256 (D.C. Cir. 1976)
(“[W]here the defendant had no counsel at all at a critical stage of his trial,
automatic reversal of his conviction is usually in order.”).
Beyond these considerations, on December 23, 2008, Mr. Kammen signed
an affidavit agreeing to comply with all applicable regulations and rules for
counsel, including any rules of court. AE 389 at 9-15. This includes
compliance with the procedure for excusal required by RC 4. Mr. Kammen, who
is licensed in Indiana, also is ethically bound to continue his representation of
Al-Nashiri as ordered by the military judge. See Ind. R. of Prof’l Conduct r.
1.16(c). Under the professional rules of his state, he must give notice to or ask
permission from the military commission to terminate his representation of AlNashiri. Id. If ordered to do so, Mr. Kammen “shall continue representation [of
Al-Nashiri] notwithstanding good cause for terminating the representation.” Id.
X. Conclusion
We conclude that the record does not establish good cause for the excusal
of Al-Nashiri’s SDC. Nevertheless, the CDC had authority to make the initial
decision to excuse Al-Nashiri’s SDC under R.M.C. 505(d)(2)(B) because the
SDC asked to be excused. The military judge, in turn, had the responsibility to
review the CDC’s decision and to make an independent assessment of whether
there existed good cause for excusal. The military judge correctly determined
that excusal of the SDC was unsupported by good cause and inimical to a fair
and orderly trial for Al-Nashiri.
We further conclude that the military judge’s orders take precedence over
the orders of the CDC under the circumstances of this case. The military
judge’s orders to the SDC to continue their representation of Al-Nashiri were
lawful. The current 2016 version of RTMC ¶ 9-1.a.3 requires the CDC to ensure
that Ms. Spears and Ms. Eliades comply with the Rules of Court and orders of
the military judge. We conclude that the CDC violated RTMC ¶ 9-1.a.3 (2016
ed.), as well as the military judge’s order, when he refused to order Ms. Spears
and Ms. Eliades to resume their representation of Al-Nashiri.
Finally, in deciding Al-Nashiri’s abeyance request to this Court, we have
ruled with respect to Mr. Kammen that the military judge’s approval is required
to terminate an attorney-client relationship for good cause and to withdraw as
counsel of record. We have further ruled that the right to learned counsel is
statutorily limited to “the extent practical.” Both these holdings are now the
law-of-the-case and the law of the military commissions even if we did not have
pendent jurisdiction to decide them in addressing the merits of appellant’s
appeal of the abatement order. See LaShawn A. v. Barry, 87 F.3d 1389, 1393-95
(D.C. Cir. 1996) (en banc) (discussing law-of-the-case doctrine); Gen. Comm. of
Adjustment, GO-386 v. Burlington N. & Santa Fe Ry. Co., 295 F.3d 1337, 1340
37

 (D.C. Cir. 2002) (stating that circuit precedent “binds us, unless and until
overturned by the court en banc or by [h]igher [a]uthority”) (citation omitted)).
The military judge’s abatement order is vacated. Al-Nashiri’s SDC
remain counsel of record, and they have a legal and ethical obligation to
continue their representation of Al-Nashiri. Al-Nashiri’s trial is to resume
forthwith. We retain jurisdiction over the issue of Al-Nashiri’s representation.
MCDO attorneys must comply with orders of the commission military
judge. See Moncier, 571 F.3d at 599; Seale, 461 F.2d at 371; Union, 552 F.2d at
509. The case is remanded to the military judge for proceedings consistent with
this decision. 26

Opinion concurring in part and dissenting in part filed by P O L L A R D , Judge.
P O L L A R D , Judge:
I concur in the Court’s judgment vacating the February 16, 2018,
abatement order, holding that the appellee’s senior defense lawyers remain
counsel of record and directing the appellee’s trial to resume forthwith. I write
separately because the majority goes both too far and not far enough in
resolving the appeal before us. Therefore, I concur in part with, and dissent in
part from, the Court’s opinion.
Before the Court is the government’s appeal of an abatement order that
brought to a halt the prosecution of Abd al Rahim Hussayn Muhammad AlNashiri (Al-Nashiri) for capital and other crimes related to his alleged role in
attacks and an attempted attack upon two United States Navy vessels and a
French supertanker. The government argues that the military judge abused his
discretion in entering this order. It asks the Court to reverse the order so that
the trial of the appellee can resume. At the core of what led to the abatement

26

On e w a y to addr es s th e issu e of exc us a l of defe ns e couns el wou ld be for th e Se cr eta r y of
D efen s e to a me n d R. M.C. 505 (d)(2)( B) and 506( c), ma k ing th e m con sis ten t w ith th e
c orr espond ing Ru les for Cour ts- Mar tia l. R. M.C. 505 should a lso sp e cif y th a t unde r th is ru le
“ de ta iled coun se l” in c lud es a ll couns e l repr e senting th e ac cu sed, inc luding “ learn ed
c ouns e l. ” Th e S e cre tary of De fen se “wou ld b e w ise to addr es s and r eso lv e pro mp tly” th es e
is su es . In re Khadr , 823 F.3d 92 , 100-01 (D. C. Cir . 2016) ( encou rag ing Congr es s a nd th e
Ex e cu tive to tak e ac tion s to c la r if y wh e th er judg es on the U. S. Cour t of Militar y Co mmis s ion
Rev iew ma y eng age in th e pr iv a te pr ac tic e of law) ; s ee a lso, e .g., In re Nash ir i, 791 F.3d 71 ,
86 ( D. C. Cir. 2015) ( sugg es ting a pro cedu re to a vo id an y prob le m w ith th e Con s titu tion’ s
Appo in tme nt Claus e). In bo th ins tan ce s d iscu sse d in Khad r and Na sh iri, the DoD, Congr es s,
a nd Pr e s iden t fo llow ed th e r eco mme nda tion s of th e Cour t of Appe a ls for th e D is tr ic t of
Co lu mb ia Cir cu it and ac ted to r esolv e th e s ta ted leg a l is sue s withou t ha v ing to w ait fo r th e
is su e to r ip en and th en be r ev iew ed b y th e app ella te cour ts. S e e, e.g ., Or tiz v. Un ited S ta tes ,
138 S. Ct. 2165, 2171, 2184 (2018 ) (d e scr ib ing how the Pre s id en t and S en a te a c ted on the
D. C. Circu it’ s adv ic e in In r e Na sh ir i and ho ld ing th a t no Appo in tme nts Clau se v io la tion
r esu lted th er efro m) .

38

 was a challenge to the authority of the military judge to control the proceedings
before him and, in particular, defense counsel’s disobedience of the military
judge’s orders that they provide Al-Nashiri with the vigorous and zealous
defense to which he is entitled.
I agree, at times for different reasons, with most of the Court’s
conclusions. We have jurisdiction to hear the government’s appeal. There is no
reason to delay deciding the appeal, as sought by Al-Nashiri’s requests to
abstain and for abeyance. Lawyers who appear before a commission are
required to obey the orders of the military judge. The Chief Defense Counsel
also must obey those orders. However, for now, we need not say more than this
obligation extends only to orders that pertain to the military judge’s control
over lawyers who appear before him or her. Al-Nashiri’s right to learned
counsel is not absolute. Rather, it is limited to the greatest extent practical.
When good cause is the basis for a request to terminate the attorney-client
relationship between an accused and a defense lawyer who has appeared before a
commission (counsel of record), the military judge is required to find on the
record that good cause exists before the relationship may be terminated. As a
separate and independent step in addition to the good cause finding, the military
judge must approve withdrawal as counsel of record pursuant to Military
Commissions Trial Judiciary Rule of Court (RC) 4 (Sept. 1, 2016). Al-Nashiri’s
senior lawyers, Richard Kammen, Mary E. Spears and Rosa A. Eliades
(collectively Senior Defense Counsel) remain Al-Nashiri’s defense counsel
because they did not secure the military judge’s approval for the termination of
their attorney-client relationships with the appellee and withdrawal as counsel
of record.
I respectfully dissent from the Court finding pendent jurisdiction to
address two issues: the military judge’s (a) finding that the United States did
not intrude into the attorney-client communications between Al-Nashiri and his
defense counsel, Tr. 10,038; AE369ZZZ, and (b) ruling that there was no good
cause for the termination of Senior Defense Counsel’s attorney-client
relationship with Al-Nashiri, AE 389F at 5. The only appealable order before
the Court is the February 16, 2018 order abating Al-Nashiri’s trial. Tr. 12,29798. Our pendent jurisdiction, therefore, is restricted to reviewing only those
non-appealable issues that must be decided in determining whether the military
judge abused his discretion by abating the appellee’s trial. The majority goes
beyond this by addressing issues that we need not decide in reviewing the abuse
of discretion question.
The appellee’s trial was abated because Al-Nashiri’s defense lawyers
made it impossible for the trial to continue. First, Mr. Kammen, Ms. Spears and
Ms. Eliades refused to obey the military judge’s orders to appear before the
commission and represent their client after the military judge rejected their
efforts to terminate their attorney-client relationship with Al-Nashiri and
withdraw as counsel of record without the military judge’s approval. Second,
the Navy lawyer who remained as detailed defense counsel passively represented
Al-Nashiri on the ground that he could do little more until a new learned
39

 counsel, that is a lawyer experienced in death penalty cases, filled Mr.
Kammen’s role in that position. Given this, the Court only needs to address
four otherwise non-appealable issues to decide if the military judge entered the
abatement order in the proper exercise of his discretion, as follows:
(a) Are lawyers who appear before a military commission required to obey
the orders of the military judge?
(b) Does the termination of an attorney-client relationship with an
accused for good cause pursuant to R.M.C. 505(d)(2)(B) require the military
judge to find on the record the existence of good cause, as defined by R.M.C.
505(f)?
(c) In addition to the military judge finding good cause, is defense
counsel required to obtain the military judge’s consent to withdraw as counsel
of record pursuant to RC 4?
(d) Does an accused have an absolute right to learned counsel when
charged with capital offenses in a prosecution before a military commission?
The Court has pendent jurisdiction to review these issues because they are
intertwined with whether the abatement order was appropriately entered, or
because it is necessary to address them in order to meaningfully review the
abuse of discretion question. The Court, however, does not have pendent
jurisdiction to hear and decide the other disputes that the majority addresses.
In addition, it is unwise to reach the merits of the good cause and
intrusion issues on the limited record before us.
I further dissent from the Court’s failure to say explicitly that Mr.
Kammen, Ms. Spears and Ms. Eliades are required to appear before the
commission and resume representing Al-Nashiri. The Court has held that they
remain counsel of record. This means that the Senior Defense Counsel have a
legal duty that requires them to return to the courtroom and represent their
client. The majority, however, will not say this because we have refrained, for
now, from deciding whether this Court has the power to order Mr. Kammen, Ms.
Spears and Ms. Eliades back to the courtroom. Whether we have that power is
separate from stating, as the Court should do, that the Senior Defense Counsel’s
duty as counsel of record requires them to resume forthwith representing AlNashiri.
Thus, I write separately to address these and other matters.
I. Abstention Based on the First-to-File Rule
The majority correctly denies Al-Nashiri’s motion asking that we defer
resolving this appeal because Mr. Kammen filed a habeas action in the United
States District Court for the Southern District of Indiana that raises some of the
40

 same issues before us and did so before the government filed its appeal. 27 See
Majority Op. supra Part VI.B. As the majority points out, Al-Nashiri bases his
argument upon the discretionary comity principle that courts of coordinate
jurisdiction should not ordinarily both hear and decide the same dispute between
the same parties at the same time. 28 See Majority Op. supra Part VI.
The majority’s decision to go forward is premised on not knowing
whether the district court would address the same merits issues that this Court
addresses. See Majority Op. supra Part VI.B. While this may be a reason to
deny the motion, the prime reason is as the superior court of the military
commissions we have a duty to pass on the correctness of the rulings and orders
of the military judges who preside over the commissions.
Rulings in collateral litigation in a district court concerning the orders of
a military judge made during extant trial proceedings have no precedential
effect on the military commissions or us. See In re Exec. Office of the
President, 215 F.3d 20, 24 (D.C. Cir. 2000) (per curiam) (“District Court
decisions do not establish the law of the circuit, nor, indeed, do they even
establish the ‘law of the district.’” (citations omitted)), cited with approval in
Apotex, Inc. v. FDA, 393 F.3d 210, 218 (D.C. Cir. 2004) (stating that holding of
one district court judge does not bind another district court judge); see also
Jewish War Veterans of the United States of Am., Inc. v. Mattis, 266 F. Supp. 3d
248, 253 (D.D.C. 2017) (“As a district court opinion, it is not binding on any
court beyond its use in this case . . . .”).
Thus, any ruling by the district court, even if it agrees with the military
judge, will not resolve the dispute concerning the abatement order, nor can it
affirm, vacate or reverse it. Moreover, the district court cannot address the
dispute regarding the efforts of Ms. Spears and Ms. Eliades to withdraw, or bind
the military commissions or its defense community. Thus, unless and until this
Court acts, the proceedings below will stay abated no matter what happens in
the habeas action that Mr. Kammen commenced in the Southern District of
Indiana.
Finally, I strongly disagree with Al-Nashiri’s contention that Mr. Kammen
was forced to file a habeas action in Indiana because he was “[u]nable to appeal
[the military judge’s] ruling on his own behalf . . . .” Appellee Br. 4 (Apr. 4,

27

S e e App e lle e Br. ( Mar. 9 , 2018) ; App e lle e Br. 23 n .3 ( Mar. 15, 2018) ; Kamm en v. Ma ttis,
No. 1 :17-cv-03951- TWP -DML, 2017 U .S. D is t. LEXI S 182533 ( S.D . Ind. Nov. 3 , 2017). To
s uppor t h is mo tion , A l-N ash ir i a lso r e lies upon th e h ab ea s a c tion f iled in th e Un ited S ta tes
D istr ic t Cour t for th e D is tr ic t of Co lu mb ia b y Brig ad ier Gene ra l ( BGen ) John G . Bak er, th e
Ch ie f D efens e Coun se l. App e llee Br. 3 ( Mar. 9, 2018) . How ever , th e wr it in tha t a c tion wa s
is su ed b as ed upon a pro cedur a l ruling. S ee Bak e r v. Spa th, No. 17 -CV-02311- RCL, 2018 W L
3029140, a t *11-14 ; U.S . D is t. LEXI S 101622, a t *32-41 (D .D. C. June 18, 2018). BGen
Bak er’ s h abe a s ac tion , th ere fore , h as no r e levanc e to th e app ea l befo re th is Cour t.
28
G iv en th e ma n n er in wh ich th e ma jor ity re so lv ed th e mo tion, the y d id no t addr e ss wh eth er
th e d is tr ic t c our t and our Cour t a re cour ts of coord in a te jur isd ic tion .

41

 2018). Assuming that there was no ability to directly seek an interlocutory
appeal, Al-Nashiri offers no reason why Mr. Kammen, on behalf of Al-Nashiri
or in his own name, did not seek review in this Court of the military judge’s
rulings and orders concerning his status as defense counsel based on our All
Writs Act jurisdiction, 28 U.S.C. § 1651.
The defense has used the All Writs Act three times to seek appellate
review of adverse rulings in or related to Al-Nashiri’s commission case. See In
re Al-Nashiri, 791 F.3d 71, 75-78 (D.C. Cir. 2015) (Al-Nashiri I); In re AlNashiri, 835 F.3d 110, 117 (D.C. Cir. 2016) (Al-Nashiri II); Appellee Br. 36-41
(July 13, 2018) (seeking under the All Writs Act to vacate the military
commission because the referral of charges allegedly was defective). On at
least two occasions in other commission cases, the defense community has
sought appellate review based on All Writs Act jurisdiction. See In re
Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (per curiam); United States v.
Al Qosi, 28 F. Supp. 3d 1198, 1200-01 (CMCR 2014). However, Mr. Kammen
(as well as Ms. Spears and Ms. Eliades) did not seek to appeal under the All
Writs Act in this instance. Only after the government appealed the abatement
order did Mr. Kammen’s co-counsel move to intervene in that appeal so that
they could be heard in this Court. See Mot. to Intervene (Mar. 7, 2018).
Whether we would have found jurisdiction to hear an appeal under the All
Writs Act is not the issue. The issue is that Mr. Kammen made no effort to
bring before this Court the military judge’s rulings and orders he believed were
erroneous. Mr. Kammen’s failure to present the dispute to this Court when he
should have, 29 completely undercuts appellee’s argument that we should defer to
collateral litigation Mr. Kammen commenced elsewhere to resolve fundamental
issues affecting Al-Nashiri’s trial.
I would deny the abstention motion for these reasons.
II. Request for Abeyance
Al-Nashiri also asked the Court not to resolve portions of the
government’s appeal of the abatement order because he says that he has no
learned counsel. Appellee Br. 23-35 (Mar. 15, 2018). I concur with the
majority’s holding that the right to learned counsel is limited by statute to the

29

“[ T ]h e g ene ra l ru le [ is] th a t h ab eas co rpus pe titions fro m milita r y pr is oner s should no t be
e n ter ta in ed b y f ed er a l civ ilian cou rts un til a ll av a ilab le r eme d ie s w ithin th e milita r y cour t
s ys te m h av e b e en invoke d in v a in. ” No yd v. Bond, 395 U. S. 683, 693 (1969) (quo ting Gu s ik
v . S ch ild er, 340 U .S. 128 (1950 )). Mr. Ka mme n con tends th a t h e curr en tly is in cus tod y for
h abe as purpo se s b ec ause of th e mil ita r y judg e’s ord er th a t, as coun s e l of re cord, he appe ar a t
c o mmis s ion se s s ions. Se e Kamm en v . Ma ttis , No. 1 :17-cv -03951- TW P-D ML , do c. 6, a t 3
( S.D. Ind. file d Nov. 2, 2017) (arguing th a t th e d is tr ic t court h as “ s ta tutor y au thor ity und er
28 U .S. C. § 2241 to gr an t th e wr it of hab ea s co rpus. Mr. K a mme n , und er d ir e c t ord er to
a ppe ar b y Co l. Sp a th, is curr en tly in cus tod y for pu rpos es of 28 U. S. C. § 2241 ”).

42

 greatest extent practicable, and a regulation promulgated by the Secretary of
Defense cannot override this. See Majority Op. supra Part VIII.
The Court, in my judgment, should make clear that the absence of learned
counsel’s participation in this appeal is self-created and, in the circumstances
presented, cannot be the basis to delay the resolution of any issue properly
raised by the government’s appeal. The Court correctly holds that Mr. Kammen
at all times remained Al-Nashiri’s learned counsel and was obligated to
represent his client before the military commission. See Majority Op. supra
Parts VII.E; X. The Court also correctly holds that Mr. Kammen refused to
represent Al-Nashiri despite lawful orders to do so, which he was required to
obey, and a contractual obligation to continue as counsel, including with respect
to the instant appeal. See Majority Op. supra Parts VII.E, IX, X. Thus, the
predicate of Al-Nashiri’s abeyance request fails because Mr. Kammen was his
learned counsel at all relevant times and continues in this role until properly
relieved or the case comes to a conclusion. The fact that Mr. Kammen refuses
to perform his duty has no effect on this result.
In addition, Lieutenant (LT) Alaric Piette, the remaining detailed defense
counsel, has demonstrated that he has the skill and ability to represent
competently Al-Nashiri regarding the issues before the Court. Further, during
May 2018, Commander (CDR) Brian Mizer, a highly experienced criminal
defense lawyer, was detailed as co-counsel to represent Al-Nashiri. 30 See
Appellee Br. (June 4, 2018). At appellee’s request, the Court allowed CDR
Mizer and LT Piette to file a supplemental brief regarding the issues before the
Court. CMCR Order (May 23, 2018); CMCR Order (June 20, 2018).
Thus, I further agree with the majority’s conclusion that Al-Nashiri’s
right to qualified appellate counsel was satisfied during this appeal, and that
this limited right also applies before a commission. 31 See Majority Op. supra
Part VIII. There is no reason to grant Al-Nashiri’s request that the Court delay
resolving the government’s appeal of the abatement order until he obtains
another learned counsel.
I would deny appellee’s abeyance request for these reasons.
I also agree that both the commissions and this Court should proceed
carefully when deciding whether, under the relevant circumstances, learned
counsel’s participation in the defense is to the greatest extent practicable. See
Majority Op. supra Part VIII.

30

The Ch ief D efen s e Coun se l h a s no t d es ign a ted Co mma nde r Mizer a s A l-N ash ir i’s le arn ed
c ouns e l.
31

I a lso agr ee th a t bo th th e co mmis s ion s and th is Cour t should pro c eed ca re fu lly whe n
d ec id ing whe ther , und er th e r e levant c ir cu ms tanc e s, le arn ed couns e l’ s pa r tic ip a tion in th e
d efen s e is to th e gr e a tes t ex ten t p ra c ticab le. Se e Major ity Op. sup ra Pa r t VII I.

43

 III. Merits Issues Properly Resolved Under Pendent Jurisdiction
I join the Court’s holding that we have jurisdiction to hear the
government’s appeal of the February 2018 abatement order and the denial of AlNashiri’s motion to dismiss the appeal for lack of jurisdiction. See Majority
Op. supra Part V.A. What issues the Court may decide in reviewing the
abatement order beyond whether its entry was an abuse of discretion is another
story. That implicates our pendent jurisdiction, which must be exercised in a
parsimonious manner.
A. Pendent Jurisdiction
I agree with the majority’s discussion regarding the law of pendent
jurisdiction in the D.C. Circuit. See Majority Op. supra Part V.B. At its core,
the law permits the Court to address non-appealable orders in the course of
reviewing an appealable order if, and only if, the “non-appealable order is
‘inextricably intertwined’ with an appealable order, or [] when review of the
former decision is ‘necessary to ensure meaningful review of the latter.’” Nat’l
R.R. Passenger Corp. v. ExpressTrak, L.L.C., 330 F.3d 523, 527 (D.C. Cir.
2003) (citations omitted). However, this grant of authority does not mean that
all issues embedded within a non-appealable order come within a court’s
pendent jurisdiction. Rather, pendent jurisdiction is limited to an “order (or
part thereof) that is not independently appealable” only to the extent that the
“order (or part thereof)” satisfies the pendent jurisdictional standard. RendallSperanza v. Nassim, 107 F.3d 913, 917 (D.C. Cir. 1997). The Court, therefore,
must parse a non-appealable order to satisfy itself that each issue within it that
the Court seeks to review comes within its pendent jurisdiction.
We also must “exercise[] pendent appellate jurisdiction sparingly.” Gilda
Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 678 (D.C. Cir. 1996) (per
curiam).
As such, in ruling on whether the abatement order was an abuse of
discretion, the Court can only review non-appealable issues that are intertwined
with the abatement order or are necessary to decide to give meaningful review
to that order. The resolution of such issues must be “essential to the resolution
of properly appealed [] orders.” Swint v. Chambers Cty. Comm’n, 514 U.S. 35,
51 (1995) (quoting Riyaz A. Kanji, The Proper Scope of Pendent Appellate
Jurisdiction in the Collateral Order Context, 100 Yale L.J. 511, 530 (1990)).
Issues that are “closely related” to an appealable order or issue do not suffice.
Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir. 2012). Rather, the resolution
of issues arising from a non-appealable order must be “practically
indispensable” to the proper resolution of the appeal for which there is
jurisdiction. Id. at 647-88 (citation omitted).
The majority departs from these dictates when it finds pendent
jurisdiction for issues that are not necessary to assess whether the abatement

44

 order was an abuse of discretion. Only four issues, as previously noted, come
within the Court’s pendent jurisdiction under these strictures.
There is a linear relationship between the refusal of Mr. Kammen, Ms.
Spears, Ms. Eliades, and Brigadier General (BGen) John G. Baker, the Chief
Defense Counsel, to obey the orders of the military judge and the military
judge’s entry of the abatement order. Had they obeyed the military judge, there
would be no abatement order.
Mr. Kammen, Ms. Spears and Ms. Eliades would not comply with the
military judge’s orders that they remained counsel of record and were required
to appear before the military commission and defend their client. See Majority
Op. supra Part III.D. The Chief Defense Counsel refused to obey the military
judge’s orders that, among other things, directed him to have Senior Defense
Counsel, whom he supervises, return “post-haste” to the courtroom. Tr. 10,05859; see Majority Op. supra Part III.D.
LT Piette, the detailed defense counsel left behind to represent AlNashiri, refused to abide by the military judge’s rulings that there was only a
qualified right to learned counsel, and that participation in the defense by a
learned counsel, under the circumstances, was not practicable. See Majority Op.
supra Part VIII. Rather, detailed defense counsel insisted that the appellee had
an absolute right to learned counsel, and he passively represented Al-Nashiri in
Mr. Kammen’s absence. See Majority Op. supra Part III.E. Thus, the conduct
of the defense attorneys and the Chief Defense Counsel made it impossible for
the military judge to move the case forward. This is what led to the military
judge abating the trial.
To determine whether the military judge abused his discretion in entering
the abatement order, the Court should only address (1) the obligation to obey
the military judge, (2) the need for and failure of Senior Defense Counsel to
obtain the military judge’s approval for (a) their excusal for good cause and (b),
separately, their withdrawal as counsel of record, and (3) the qualified right to
learned counsel. Each of these issues is “inextricably intertwined with” whether
the military judge abused his discretion in abating the trial because the
defense’s refusal to obey the military judge’s orders was the cause of the
commission’s inability to continue the trial. For the same reasons, the Court
cannot meaningfully review the validity of the abatement order without first
deciding if the military judge correctly ruled on these issues. There is no need
to address any other matters in determining whether abating the trial was an
abuse of discretion.
B. Merits Issues Under Pendent Jurisdiction
In denying appellee’s request that the Court refrain from addressing part
of the government’s appeal, the majority ruled that: (a) the military judge
controls the termination of an attorney-client relationship and withdrawal with
respect to counsel of record and (b) there is a limited right to learned counsel.
45

 Majority Op. supra Parts VII.E, VIII, IX, X. I concur in the Court’s
conclusions. Thus, I also join in the Court’s holding that those rulings now are
the law of the case and the law of the military commissions even if the Court
did not have pendent jurisdiction to decide them in addressing the merits of the
appeal of the abatement order. See Majority Op. supra Part X.
I write separately only with respect to the duty to obey the military judge.
While the majority opinion describes in some detail Senior Defense Counsel and
BGen Baker’s insubordination, it fails to explain fully the level of defiance.
In early 2018, the military judge ordered the prosecution to issue
subpoenas compelling Ms. Spears and Ms. Eliades to appear and testify before
the commission via a video teleconference facility in Alexandria, Virginia. AE
389MM & AE 389NN at 3; AE 389RR & AE 389SS at 2-4; AE 389TT at 10-11.
The majority says that they “opposed compliance with the subpoenas.” Majority
Op. supra Part III.D (citing AE 389KK; AE 389LL; AE 389MM; AE 389NN; AE
389RR; AE 389SS). Ms. Spears and Ms. Eliades did more than that.
On February 2, 2018, through private counsel, they moved to quash the
subpoenas. AE 389RR; AE 389SS. The military judge denied their motions on
February 12, 2018. See Tr. 11,491-95; 11,853-55. Ms. Spears and Ms. Eliades,
thus, were required to appear the next day as commanded by properly served and
enforced subpoenas.
They did not comply. Rather, their counsel sent an email to the military
judge informing him that Ms. Spears and Ms. Eliades “will not be appearing in
the matter because the Commission lacks jurisdiction [over them because they
no longer were counsel for Al-Nashiri] and the subpoenas are an abuse of
process.” AE 389XX; see Tr. 11,854-55; AE 389JJ; AE 389KK; AE 389MM; AE
389NN.
All lawyers who appear before a military commission are required to obey
the orders of the military judge and respect the judge. See United States v.
Moncier, 571 F.3d 593, 599 (6th Cir. 2009). Ms. Spears and Ms. Eliades’
conduct fell woefully short of these standards.
Thus, I join in the majority’s ruling on the duty to obey, and emphasize
the Court’s adoption of the Moncier holding that “[t]here is no right of
revolution in a United States District Court. The lawyer’s duty is not to defy
the judge’s orders, but to follow them.” Id. If counsel believes the court is
wrong, “the remedy is on appeal.” Id. (citation omitted); see also Maness v.
Meyers, 419 U.S. 449, 458 (1975) (“We begin with the basic proposition that all
orders and judgments of courts must be complied with promptly. If a person to
whom a court directs an order believes that order is incorrect the remedy is to
appeal, but, absent a stay, he must comply promptly with the order pending
appeal.”).

46

 This duty also applies to the Chief Defense Counsel’s conduct regarding
the rulings and orders of both the military judge and this Court in matters
pertaining to control over counsel appearing before a commission. To allow
otherwise would erode the authority of the military judge to control and manage
the conduct of the trials before him or her.
IV. Merits Issues Not Under Pendent Jurisdiction
The majority errs when it exercises pendent jurisdiction to affirm the
military judge’s rulings that (a) there was no good cause to permit Senior
Defense Counsel to terminate their attorney-client relationship with Al-Nashiri
and (b) there was no intrusion by the United States into Al-Nashiri’s attorneyclient communications. See Majority Op. supra Part V.B. Neither ruling is
“practically indispensable,” Abelesz, 692 F.3d at 647-48 (citation omitted), or
“essential,” Swint, 514 U.S. at 51 (citation omitted), to decide whether the
military judge abused his discretion in abating the proceedings. As such, the
Court does not have jurisdiction to review these issues. See Kilburn v. Socialist
People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1133-34 (D.C. Cir. 2004)
(discussing application of Swint, 514 U.S. 35, to pendent appellate jurisdiction
issues). Further, the majority simply says that good cause is intertwined
inextricably with the abatement order and that intrusion is the cited basis for
Senior Defense Counsel’s attempted withdrawal as Al-Nashiri’s defense
attorneys. See Majority Op. supra Part V.B. The majority does not explain how
the former is so, or why there is the required compelling need to address either
issue in their assessment of the correctness of the abeyance order. 32 See
Majority Op. supra Part V.B.
As support for its finding of pendent jurisdiction to review these rulings,
the majority points to the D.C. Circuit’s request that the government provide
information regarding the intrusion allegations. See Majority Op. supra Part
V.B. That request was made during the pendency of the interveners’ appeal of
our denial of their motion to intervene as right in the appeal before us. The
government did not provide the requested information to the D.C. Circuit
because the interveners’ appeal was dismissed as moot after we treated the
motion as one for permissive intervention and granted it. CMCR Order (May
18, 2018); see Spears v. United States, No. 18-1087, 2018 U.S. App. LEXIS
13183 (D.C. Cir. May 21, 2018) (per curiam). Regardless of the D.C. Circuit’s
reason for its request, which it did not disclose, it has no bearing on this Court’s

32
The Cour t a lso con c lud es in P ar t II o f its op inion, supr a, th a t th e Ch ief Def ens e Coun se l
a nd th e ac ting Ch ief abu sed th e ir dis cr e tion and v io la ted th e Regu la tion fo r T r ia l b y Militar y
Co mmis s ion ( RT MC) wh en th e y f a ile d to d e ta il add itiona l c ouns e l to re pre s en t A l-N ash ir i
a f te r S en ior D ef ens e Coun se l refu s ed to app e ar b efor e th e milita r y commis s ion. Th e Cour t
s a ys no th ing abou t th e b as is for th is con c lu s ion in its op inion. Ag a in, I f a il to se e how the
Cour t h as pe nden t jur isd ic tion to addr es s th is is su e. Moreov er, th e gov ern me n t d id no t
s pe c if y as an app e lla te is su e wh e the r th e Ch ie f D ef ens e Coun se l and the ac ting Ch ie f D ef ens e
Couns e l abus ed th e ir d isc re tion and v io la ted th e RTMC b y th e ir in ac tion, nor d id e ith er p ar ty
br ief th e abu se o f d is cre tion is su e.

47

 determination of the critical issues that must be resolved in reviewing the
abatement order. Accordingly, the D.C. Circuit’s request for information is
irrelevant to this Court’s pendent jurisdiction analysis.
A. The No Good Cause Finding
After Mr. Kammen, Ms. Spears and Ms. Eliades asserted that they no
longer were Al-Nashiri’s lawyers and left the case, LT Piette filed a motion to
abate the trial until new learned counsel was detailed to represent Al-Nashiri.
AE 389. The military judge denied the motion on October 27, 2017. AE 389F.
In the context of denying the motion, the military judge found that there was no
good cause to terminate the attorney-client relationship between Al-Nashiri and
Senior Defense Counsel. Id. at 5. This finding primarily was based upon the
failure of Senior Defense Counsel and the refusal of the Chief Defense Counsel
to provide any justification for their claim that good cause existed beyond the
Chief Defense Counsel’s letters and its enclosures purporting to relieve counsel
as Al-Nashiri’s defense attorneys. See AE 389F; Majority Op. supra Parts III.D,
IV.
The majority does not explain the manner in which the no good cause
finding, relating to an October 2017 abeyance motion, has anything to do with
the February 2018 abatement order that would permit the Court under the
applicable exacting standard to assert pendent jurisdiction to assess whether
there was no good cause. See Majority Op. supra Part V.B. Moreover,
regardless of whether the military judge was right or wrong in his October 2017
finding, his no good cause ruling has nothing to do with Senior Defense Counsel
leaving the case. As noted, when the October ruling was made, they already had
told the military judge that they would not continue as Al-Nashiri’s defense
lawyers. Again, right or wrong, the no good cause finding does not have
anything to do with counsel’s refusal to return. In contrast, there is a direct
correlation between the Senior Defense Counsel and the Chief Defense Counsel
refusal to obey the military judge’s orders requiring the Senior Defense Counsel
to return to the courtroom and represent Al-Nashiri and LT Piette’s refusal to
accept the ruling that there was no absolute right to learned counsel and the
February 2018 abatement order.
B. The Intrusion Ruling
The majority compounds its error regarding pendent jurisdiction by boot
strapping a jurisdictional justification to review the intrusion allegations. The
Court, without further explanation, says it is necessary to review the military
judge’s earlier factual finding concerning intrusion to adequately review the no
good cause ruling made in denying Al-Nashiri’s October 2017 abeyance motion
and, further, intrusion was intertwined with the latter ruling. See Majority Op.
supra Part V. Separately, the government asked the Court to review and affirm
the military judge’s September 20, 2017, ruling denying Al-Nashiri discovery
relief based upon his allegations that the United States had intruded into his
attorney-client communications. See AE 369YYY-AE 369CCCC; Tr. 10,038.
48

 The stated purpose of the government’s request is to obtain a ruling from this
Court that the military judge properly found that there was no intrusion. See
Appellant Br. 1 (Mar. 5, 2018).
Neither the theory advanced by the majority nor the request from the
government, however, has anything to do with the February 2018 abatement
order that brought Al-Nashiri’s trial to a halt. Accordingly, there is no
compelling reason to address the intrusion allegations. Consequently, there is
no pendent jurisdiction that allows the Court to rule upon the military judge’s
finding in his October 2017 denial of Appellee’s discovery motion that there
was no intrusion. Nothing in the majority’s opinion explains otherwise.
C. The Undeveloped Record
The D.C. Circuit cautions, “[w]e also must be careful not to accept
pendent appeals prematurely, without the benefit of an adequate record or before
the district court has an opportunity to render a considered decision on the
subject.” Gilda Marx, 85 F.3d at 679; see also Rendall-Speranza, 107 F.3d at
917 (stating “the exercise of pendent jurisdiction is disfavored if the court lacks
the benefit of an adequate record”).
There is no fully developed commission record regarding the allegation
that the United States intruded into Al-Nashiri’s attorney-client
communications. The military judge’s finding that the United States did not
intrude is based on the government’s representations that the United States did
not intrude and the Court’s observations that the defense failed to offer evidence
challenging those representations. 33 This comes from the judge’s decisions
denying Al-Nashiri’s discovery motion and his October 16, 2017, abatement
motion. See AE 389F at 5-6; AE 369YYY; Tr. 10,038 (citing AE 369ZZZ); see
also Majority Op. supra Parts III.D, VII.E.
What is appropriately before the Court is not an “adequate record” upon
which to assess properly the no intrusion finding. This is borne out by the
majority’s reliance upon a declaration and documents that are not a part of the
record below, and for which there is no basis to supplement the appellate record
by including them.
The commission record upon which the majority reviews the no good
cause finding in the decision denying Al-Nashiri’s October 2017 abatement
motion similarly is inadequate. The military judge’s decision is premised upon
a failure of proof. All that was before him was the Chief Defense Counsel’s
letters and its enclosures approving Senior Defense Counsel’s request to leave

33

The Cour t righ tfu lly ma k es c lea r tha t if th e d efe ns e shows imp rop er intru s ion, th e milita r y
judg e is to a ddre ss it und er th e app licab le lega l s tand ards and en ter an ord er tha t h e d e e ms
jus t. Majority Op . sup ra no te 22 .

49

 the case and their refusal to further justify the claim of good cause. AE 389 &
Attach. C; AE 389F; see Majority Op. supra Part III.D.
Thus, what is properly before the Court, in my judgment, is too sparse a
record to review the findings of no intrusion and no good cause, even if the
other elements necessary for review based on pendent jurisdiction were present.
This is even more so when, as here, those other predicates to pendent
jurisdiction are lacking. Assuming jurisdiction, the Court should wait until
there is a more developed commission record and substantive rulings based on
that record, before the military judge’s findings are ripe for appellate review.
The majority’s reliance on a declaration and documents dehors the
military commission’s record cannot cure the inadequacies in the record
properly before the Court. Both parties submitted documents to this Court that
are not in the commission record. The government submitted an unclassified
appendix with its Merits Brief (Mar. 5, 2018) and a classified appendix with its
Reply Brief and Motion to File a Supplemental Classified Appendix (Mar. 20,
2018). The classified appendix consists of the classified declarations of the
Commander, Joint Detention Group (JDG) at Naval Station Guantanamo Bay and
the Central Intelligence Agency (CIA), Deputy General Counsel for Litigation
and Investigations. The government moved for permission to file both
appendices in this Court. Appellant Mot. to File App. (Mar. 5, 2018); Appellant
Br. & Mot. to File Suppl. Classified App. (Mar. 20, 2018).
Al-Nashiri submitted more than 300 pages of classified documents with
his July 2, 2018, classified Supplemental Brief. He asked the Court to consider
them if, absent an evidentiary hearing, the Court addresses the intrusion
question presented by appellant. See Appellee Br. 2 (July 2, 2018). He did not
make a motion to supplement the appellate record with these documents.
In addition, the government filed in this Court its voluntary response to
Al-Nashiri’s discovery requests. Appellant Disc. Br. (June 5, 2018). As
discussed supra, the D.C. Circuit had requested the same information that AlNashiri later sought after the D.C. Circuit’s request became moot. The
government’s voluntary response included the May 21, 2018, declaration of
Colonel (Col.) John B. Wells and five attachments thereto. Id. at Ex. 1, Wells
Decl. Col. Wells is a senior member of the prosecution. His declaration
includes a comprehensive recitation of the government’s factual contentions
concerning the allegations that the United States had intruded into the
privileged conversations between Al-Nashiri and his counsel. See id.
The first attachment (A) to the Wells Declaration is a classified transcript
of the proceedings below on July 31, 2017. The second (B) is a two-page
unsworn summary of facts as advocated by the government concerning the
allegations of intrusion involving Al-Nashiri. That summary also is a part of
the appellant’s March 5, 2018, brief opposing appellee’s motion to dismiss the
appeal for lack of jurisdiction and is a part of appellant’s appendix (App. 1819). The government acknowledges that the summary “is not of record before
50

 the Commission.” Appellant Br. 5 n.4 (Mar. 5, 2018). The third and fourth (C)
and (D) are, respectively, the classified declarations of the JDG Commander and
the CIA Deputy General Counsel for Litigation and Investigations. The fifth
attachment (E) is an unclassified excerpt from AE 369MM, the government’s
response to the motion to advise Al-Nashiri of potential intrusions. The two
declarations, attachments (C) and (D), also comprise the classified appendix
submitted with Appellant’s Reply Brief and Motion to File a Supplemental
Classified Appendix (Mar. 20, 2018).
The government did not move to supplement the appellate record to
include the Wells Declaration or attachment (B), the two-page unsworn factual
summary regarding the intrusion allegations. 34 It did seek to file the Wells
Declaration as part of its opposition to Appellee’s Motion for Discovery and
Stay (May 31, 2018). It did so
to cut off further litigation over “Appellee’s request for ‘appellate discovery’”
and to obtain a “speedy - and just - resolution of this interlocutory appeal.”
Appellant Response to Appellee Motion for Discovery 5-6 (June 5, 2018). This
response cannot be construed as a motion to supplement the appellate record.
In an order dated October 11, 2018, the majority admitted into the
appellate record all of the documents in the two government appendices, the
Wells Declaration and some 300 documents that appellee submitted with his
July 2, 2018, classified Supplemental Brief. I concurred in part with, and
dissented in part from, this Order, a copy of which is an attachment to this
opinion. Regardless of the manner in which the proposed use of these
documents in the appellate process is presented to the Court procedurally, the
core issues are whether in rendering a decision regarding alleged intrusion the
Court may properly supplement the appellate record with them and rely upon
them and other documents not in the commission record. In my judgment, it
may not.
The majority of the documents not in the commission record that the
majority admits into the appellate record, including the 300 plus classified
pages submitted by Al-Nashiri, and other documents properly admitted into the
appellate record are irrelevant to the disposition of the appeal. The same cannot
be said for a handful of extra-record documents upon which the majority relies
in affirming the military judge’s finding that there was no intrusion.
The majority affirms the finding that the United States did not intrude in
Al-Nashiri’s attorney-client communications based on the government’s
representations that the United States did not intrude, 35 the Court’s observations

34

A tta ch men ts (A) and (E) a lr e ad y are p ar t of the co mmis s ion r e cord. Th e gov ern me n t
pr ev ious ly mo v ed to inc lude the two d e c lar a tion s, ( C) and (D) , in its cla s s if ied app end ix.
App e llan t Mo t. ( Mar . 20, 2018).
35

I do no t doub t th e r epr es en ta tions of the govern me n t’ s law yers . The issu e th a t I addr es s is
th e prop er re cord for app e lla te r ev ie w of an y in tru s ion f ind ing. On r ema n d, the in tru s ion

51

 that the defense failed to offer evidence that challenges those representations
and the government’s factual contentions regarding what did and did not occur.
As part of its support for its conclusion, the majority materially relies upon the
Wells Declaration, the two-page unsworn fact summary and a March 26, 2018,
status report. See, e.g., Majority Op. supra Parts III.B, III.G, VII.E. None of
these documents was in the record before the military judge when he entered the
February 16, 2018, abatement order. None is properly before this Court. All of
it is hearsay. The Court, therefore, should not rely upon these documents in
deciding the alleged intrusion issue. 36
Col. Wells sets forth in detail the government’s factual contentions that
go to the heart of the intrusion allegations. The majority says that it relies on
the Wells Declaration as background information and that it did not provide
essential support for the majority’s opinion. See CMCR Order 2-3 (Oct. 11,
2018). I respectfully do not agree. The majority cites the Wells Declaration as
substantive support for its opinion regarding the intrusion issue. 37 See, e.g.,
Majority Op. supra Parts III.B, VII.E. Col. Wells also offers his conclusion
regarding the ultimate issue. For example, he says, “it is my belief that no
intrusions have ever occurred into the confidentiality of petitioners’
communications with their client.” Wells Decl. ¶ 15.
The majority similarly cites to the government’s two-page unsworn
summary of its factual contentions regarding alleged intrusion (directly and
from its March 5, 2018, brief) and its March 28, 2018, Status Report, to support

a lleg a tions ma y w e ll b e fu r ther deve loped if d ef ens e counse l in a prope r ma nn er se ek to
e s tab lish good c aus e a t th e tr ia l leve l b as ed on a lleg ed in tru sion in to A l-N ash ir i’s pr iv ileged
c o mmu n ica tions w ith h is de fen se law yers . Th is shou ld no t b e r ead a s sa ying th at th e d efen s e
is en titled to d iscov er y or th e h e ar ing th a t it s ee ks. I t is for th e milita ry judg e to de ter min e
if d is cover y or a he ar ing shou ld b e ord er ed.
36

Th e c la ss if ied appendix C to the ma j or ity op in ion c ites th e W e lls D ec lar a tion and its
a tta ch me n t ( C), the de cla ra tion of th e J DG Comma n d er, in d iscu ss ing in tru s ion invo lv ing
a no ther de tain ee . The ma j or ity doe s no t r e ly upon a ttachme n t ( C) to th e W e lls De c lar a tion
for its ho ld ing s in th e app ea l befo re th e Cour t. Th e por tion of the c las s if ied append ix th a t
d is cu ss es Al-N ash ir i is s uppor ted with c ita tion s f ro m th e commis s ion r ec ord.

37

In the ma jor ity op in ion, sup ra P ar t I II. B, it s tate s,
In Augus t 2017, a def ens e in sp ec tion of the room a llo ca ted for me e tings be tw e en AlN ash ir i and h is coun s e l r eve a led a mic r ophon e or mic r ophon es th a t w ere no t conn ec ted to
r eco rd ing or tr an s mis s ion equ ip me n t. App e llan t D isc . Br. Ex. 1, W e lls D ec l. ¶¶ 19, 20 .vw (Jun e 5, 2018) (W ells D e c l.). The gov ern me n t r ef err ed to th e d ev ic es a s “ lega c y”
mic r ophon es le f t ov er fro m be fore 2012 wh en th e bu ild ing w as conf igur ed for de tain ee
in terv iew s. Id . a t ¶¶ 19, 20, 34 & at A tta ch. B.2 ; App e llant Jur is . Br. 5 ( Mar. 5, 2018).

Th e gov ernme n t as sur ed app e lle e th a t th e mic rophon e(s) we re no t conn ec ted to any r e cord ing
d ev ic es when A l- Na sh iri w as us ing th e roo m dur ing p rev ious me e ting s w ith h is coun se l. S ee
Majo r ity Op. sup ra P ar t I II. B. I t fur th er r epr ese n ted tha t th ere had bee n no r e cord ing of
c ouns e l’s conv ers a tions w ith A l-Na sh ir i. S e e Majo r ity Op. sup ra P ar t I II. B.

52

 its conclusion that intrusion was not established below. 38 See, e.g., Majority
Op. supra Parts III.B, III.G. Again, none of this is in the commission record.
We review the legal and, in appropriate cases, factual findings of a
commission. In doing so, we should follow a central principle of appellate
review: “If the evidence is not in the record, it is not in the record . . . .” Nat’l
Council of Am.-Soviet Friendship, Inc. v. Subversive Activities Control Bd., 301
F.2d 518, 519 (D.C. Cir. 1962) (per curiam).
Supreme Court holdings make clear that this principle is impressed upon
all federal appellate courts. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
n.16 (1970), the Supreme Court rejected any use of extra-record evidence in
deciding the appeal before it. The Court said:
In a supplemental brief filed in this Court respondent lodged a copy of
an unsworn statement by [a witness] denying any contact with the police
on the day in question. Apart from the fact that the statement is unsworn,
see Fed. R. Civ. Proc. 56(e), the statement itself is not in the record of the
proceedings below and therefore could not have been considered by the
trial court. Manifestly, it cannot be properly considered by us in the
disposition of the case.
Adickes, 398 U.S. at 157 n.16; see also Kansas v. Hendricks, 521 U.S. 346, 392
(1997) (stating “[i]t is the record, not the parties’ view of it, that must control
our decision” and collecting similar cases); FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 235 (1990) (stating “we may not rely on the city’s affidavit, because it
is evidence first introduced to this Court and ‘is not in the record of the
proceedings below’” (quoting Adickes, 398 U.S. at 157 n.16)), abrogated in part
on other grounds by City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774,
781 (2004); Carr v. Corning, 182 F.2d 14, 21 (D.C. Cir. 1950) (“An appellate
court . . . cannot decide a question of fact upon evidence which is not in the
record.”).

38

In th e ma jor ity op in ion, sup ra P art I II. B, it s ta te s th a t th e roo m in whic h A l-N ashir i me t
w ith h is a ttorn e ys :
in c luded disc onne c ted, le ga c y mic rophon es th a t w ere no t conn ec ted to an y aud io
lis ten ing /r ec ord ing d evic e . W hile it w as app are n t th a t th is roo m s erv ing as the new
me e tin g loca tion h ad bee n pr ev ious ly conf igur ed fo r in terv ie ws , no audio equ ip me nt w as
u sed while Mr. a l Na shir i w a s in the roo m. . . .
(Quo ting We lls D e c l., A ttach . B.2.) In th e ma jor ity op in ion, sup ra Pa r t II I.G, it s ta tes :
“ ‘Appe llan t h as infor me d our Court th a t on Octob er 27, 2017, the J TF off er ed add ition a l
a ttorne y-c lie n t me e ting spa c es for A l-N ash ir i a nd h is leg al te a m th a t, lik e th eir for me r sp ac e,
[w er e ] no t aud io - mon itor ed or re cord ed, and conv ers a tions c anno t be ov erhe ard b y nonp ar tic ip an ts.’ Sta tu s Re p. 2 , 6 ( Mar. 28, 2018 ). ” (So me inte rna l quo tation ma rk s o mitte d.) .

53

 I respectfully submit that this Court is bound by these holdings. 39
Among the reasons that we only may look to evidence properly in the
record is because of the potential adverse consequences for the opposing party.
This point was made in United States v. Hoover, 246 F.3d 1054, 1064 (7th Cir.
2001) (concurring opinion):
We do not allow parties to stray beyond the bounds of the record
for reasons so obvious and familiar that they scarcely require
mention: if the evidence upon which a party bases its argument is
not in the record, then the opposing party has not had the
opportunity to respond appropriately, the district court has never
had the opportunity to assess that evidence, and last, but by no
means least, when push comes to shove, the “evidence” may never
materialize--litigants often make representations that turn out to be
inaccurate.
When the government attempted to use the unsworn factual summary and
classified declarations that were not in the commission record, Al-Nashiri
objected. See Appellee Br. (Mar. 8, 2018); Appellee Br. (Mar. 19, 2018);
Appellee Br. (Mar. 21, 2018). Al-Nashiri also was entitled to an opportunity to
challenge the Wells Declaration and the Status Report before the majority
admitted those documents to the appellate record and relied on them in
affirming the military judge’s finding of no intrusion.
The majority says that no one objected to any documents filed with the
Court after March 21, 2018. CMCR Order 1 (Oct. 11, 2018). The lack of an
objection to a court filing, however, is not a basis to include extra-record
documents in the appellate record and use them to affirm a factual finding.
Rather, first a motion to supplement the record needs to be made and then the
opposing party has an opportunity to object or oppose the motion. Compare
Hescox v. Niagara Wheatfield Cent. Sch. Dist., 12 F. App’x 86, 89 (2d Cir.
2001) (considering appellate record supplemented with conference transcript on
the “eve of oral argument of this appeal, [when] the School District moved,
without objection from Hescox, to supplement”), with F.E.L. Publ’ns, Ltd. v.
Cath. Bishop of Chicago, No. 81-1333, 1982 WL 19198, at *10 n.20 (7th Cir.
Mar. 25, 1982) (vacating order that permitted appellate record to be

39

W hile in some c ir cu ms ta nc es an app e lla te court ma y proper ly supp le me n t th e r ecord with
e v iden c e not b efor e th e tr ia l cour t, tho se c ir cu ms tan ce s ar e s tr ic tly limi te d. Se e, e.g. , F ed.
R. App. P. 10( e)(2) (s ta ting th e cour t ma y r e me d y “an yth ing ma te r ia l . . . o mitte d f ro m or
mis s ta te d in th e r e cord b y error or a c c id ent . . . .”) . Th is ru le, how ev er, doe s no t a pp ly to
th is Cour t. W he ther the Cour t ha s inh eren t equita b le power s to supp leme n t th e r ec ord h as
no t b e en d ec ided b y us . In an y even t, the c ir cums ta n c es befor e th e Cour t wou ld no t suppor t
th e us e o f an y such pow ers . S e e Thomp son v . B e ll, 373 F .3d 688 , 690-91 (6 th Cir. 2004)
( s ta ting “w e r e cogn iz e th a t a nu mb er o f our s is te r c ir cu its ha ve he ld that th e cour ts of
a ppe a ls have th e inh eren t equ itable pow er to supp le me n t the r eco rd on a ppe a l, wher e th e
in tere s ts of jus tic e r equir e” and co lle c ting c as es ), r ev’d on o th er g round s, 545 U.S . 794
(2005) .

54

 supplemented with documents not in the trial record without notice to adverse
party).
Here, there was no motion for leave to add the Wells Declaration and the
Status Report to the appellate record. The Court did not give notice that it, sua
sponte, would admit either document to the appellate record and use them in
addressing the intrusion allegations. Accordingly, Al-Nashiri had no reason or
opportunity to object to the majority’s use of the Wells Declaration or the Status
Report to support their affirmance of the no intrusion finding.
The majority also says that the extra-record Wells declaration is
“cumulative of the information presented to the military commission.” CMCR
Order 2 (Oct. 11, 2018). Thus, I fail to see the reason to cite to it, and not
documents in the commission record. Denominating the extra-record evidence
as background information does not permit the majority to point to it as
justification for its holding. Am. Council of the Blind v. Mnuchin, 878 F.3d 360,
365 n.4 (D.C. Cir. 2017), cited by the majority in its October 11, 2018, order is
not to the contrary. That case involved the D.C. Circuit taking judicial notice of
more current information concerning the frequency of downloads of a free
mobile phone “currency-reading” application. Id. at 364-65 & n.4. This
information was but a small part of various facts being weighed to determine
whether the district court abused its discretion in concluding that continued
delay in access to paper currency by the blind remained equitable in light of
“the potential financial burden resulting from granting the plaintiffs’ [request
for currency] modification . . . .” Id. at 371. Council of Blind supplies no
support for the majority’s reliance upon the Wells Declaration, the two-page
unsworn summary and the Status Report as primary support for affirming the
military judge’s factual finding.
For these reason, I respectfully dissent from the majority’s opinion
affirming the military judge’s rulings regarding no good cause and alleged
intrusion and dissent, in part, from the October 11, 2018, order admitting
documents into the appellate record.
V. Defense Counsel Is Required to Return to the Courtroom
The Court has ruled that Mr. Kammen, Ms. Spears and Ms. Eliades remain
counsel of record for Al-Nashiri and are subject to the jurisdiction of the
commission and the orders of the military judge. See Majority Op. supra Part
X. As such, each has a legal and ethical duty to resume representing his or her
client. See Majority Op. supra Parts VII.E, X. They cannot turn their back on
this obligation. Rather, as the D.C. Circuit has told us, “the definition of
‘duty,’ [] is ‘something that one is expected or required to do by moral or legal
obligation.’ The Random House College Dictionary 411 (Revised Ed.1980).”
United States v. Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998).
Thus, Mr. Kammen, Ms. Spears and Ms. Eliades are required to return to
the courtroom and represent Al-Nashiri before the commission. The Court will
55

 not say this because the majority believes that stating what the law requires of
Senior Defense Counsel is tantamount to this Court ordering them to resume
representing Al-Nashiri. Whether as an Article I appellate court we have
inherent power or some other authority, such as under the All Writs Act, 28
U.S.C. § 1651, to issue such an order is a difficult question that the Court
rightly leaves to another day.
Stating plainly the legal consequences of the Court’s holding that Mr.
Kammen, Ms. Spears and Ms. Eliades remain counsel of record is not an order.
Moreover, assuming that we had the power to do so, the Court does not need to
order them to return to the courtroom at this junction. Rather, we “may
rightfully assume that” as officers of the court they will comply with the
Court’s ruling and “will conduct themselves not inconsistent with our opinion.”
Cf. Dellinger v. Mitchell, 442 F.2d 782, 790 (D.C. Cir. 1971). 40
VI. The Abeyance Order
To the extent that the Court’s opinion may be read as reversing the
military judge’s abatement order as an abuse of discretion, I dissent.
The military judge abated Al-Nashiri’s trial because Mr. Kammen, Ms.
Spears and Ms. Eliades’ disobedience obstructed the military judge’s ability to
continue the trial. The trial ground to a halt because of this and LT Piette’s
passive representation of Al-Nashiri. The conduct of the Chief Defense Counsel
contributed to this. Thus, in my view, the military judge did not abuse his
discretion in abating the trial. He had no other choice. The trial could not
continue in the circumstances that the commission faced.
In deciding the government’s appeal, the Court has resolved the disputes
that led to the abatement order. In light of this, the basis for the abatement
order no longer exists. Thus, I concur in vacating the military judge’s
abatement order, remanding this action to the military commission and directing
that the trial resume forthwith. See 28 U.S.C. § 2106.
VII. Conclusion
For these reasons, I concur in the Court’s judgment and concur in part in,
and dissent in part from, the Court’s opinion, as stated above.

40

G iven the d iff icu ltie s th a t th e milita r y judg e fa c ed in enfor c ing h is ord ers to S en ior
D efen s e Coun se l and the Ch ie f D efe ns e Couns el, the Ex ecutiv e and the Congr es s ma y w ish to
c ons id er legis la tion th a t en ab le s milita r y co mmi s s ion judg es to ho ld contu ma c ious pa r tie s in
c iv il and c r imin a l con temp t. S e e a ls o Major ity Op. sup ra no te 25 ; 18 U. S. C § 401.

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 FOR THE COURT:

 
   
 

Mark Harvey
Clerk of C?urt, U13 Hurt 
Commissinn Ravicw

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