USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

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USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#1

Post by Tiredretiredlawyer » Thu Nov 02, 2017 2:16 pm

http://www.miamiherald.com/news/nation- ... 31196.html
Gitmo judge sends Marine general lawyer to 21 days confinement for disobeying orders

GUANTANAMO BAY NAVY BASE, CUBA
The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow the judge’s orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the capital terror case. The lawyers resigned last month over a covert breach of attorney-client privilege involving something so secretive at the terror prison that the public cannot know.

Wednesday evening, with Baker confined to his quarters in a trailer park behind the courthouse, Judge Spath issued another order: Directing the three lawyers — Rick Kammen, Rosa Eliades and Mary Spears — to litigate Friday in the death-penalty case against Abd al Rahim al Nashiri remotely from the Washington D.C., area by video feed to Guantánamo.

Baker is the chief defense counsel for military commissions, and the second highest-ranking lawyer in the Marine Corps. He had excused Kammen, Eliades and Spears from the case on ethical grounds, and refused to rescind the order —prompting the judge to find him in contempt of court. Baker also invoked a privilege stemming from his oversight role and refused Spath’s order to swear an oath and testify in his court.
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#2

Post by Tiredretiredlawyer » Thu Nov 02, 2017 2:24 pm

http://www.mcclatchydc.com/news/nation- ... 85026.html
Judge orders U.S.S. Cole case to continue despite defense attorneys quitting

WASHINGTON
U.S. District Court Judge Royce Lamberth on Thursday denied defense counsel’s request to halt USS Cole hearings at Guantánamo, despite the refusal to participate by three civilian lawyers for the accused.

Within minutes of the denial, lawyers for Brig. Gen. John Baker, the chief defense counsel for military commissions, filed an unlawful detention petition in Lamberth's court. The USS Cole case judge, Air Force Col. Vance Spath, on Wednesday sentenced the Marine general to 21 days confinement in his quarters, in a trailer park behind the Guantanamo courthouse, for refusing to return the civilian counsel to their jobs.
:snippity:
The case against Abd al Rahim al-Nashiri, the alleged mastermind behind al Qaeda’s Oct. 12, 2000 suicide bombing of the ship in Yemen, which killed 17 U.S. sailors, has been thrown into turmoil by the withdrawal of the lawyers, who say they are refusing to “provide unethical legal services to keep the façade of justice that is the military commissions running.” The lawyers resigned over an ethical conflict that has been kept secret.
:snippity:
Lamberth’s decision clears the way for a showdown Friday over whether the three lawyers who quit will report to an office building in Alexandria, Virginia, by 8 a.m. to litigate Nashiri’s case by video-feed to Guantanamo, as the trial judge, Spath, has ordered. Civilian Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears earlier in the week rejected Spath’s order to travel to the remote base for proceedings in the case.
The exercise over who can release an attorney of record is also testing the reach of the war court set up by President George W. Bush after the 9/11 attacks and reformed by President Barack Obama. A year ago, a USS Cole case prosecutor said the war court has no authority to force a reluctant witness to Guantanamo. Instead, Spath sent U.S. marshals to scoop up the witness, Stephen Gill, from his home in Massachusetts, hold him overnight in a Virginia cell and deliver him to the same video-feed site where he has ordered Kammen, Eliades and Spears to appear as Nashiri's counsel of record. In that instance, a federal public defender sent a letter to the Guantanamo courtroom, offering to represent Gill, who was an un-mobilized Navy Reserves lawyer. Spath explicitly ordered that Gill not be told of the offer until after Gill had testified.
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#3

Post by TexasFilly » Thu Nov 02, 2017 2:31 pm

This is so Alice in Wonderland. Good old Royce Lamberth, who just couldn't quit Taitz.
I love the poorly educated!!!

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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#4

Post by Slartibartfast » Thu Nov 02, 2017 2:32 pm

What a wonderful crop we're reaping from what President Bush sowed with his show of no confidence in the United States Judicial (and prison) system after 9/11.
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#5

Post by Maybenaut » Thu Nov 02, 2017 6:39 pm

What few people are talking about, and what is more troubling to me than any squabble about who has the authority to order whom to do what, is what led to the withdrawal in the first place:
The Miami Herald wrote:The lawyers resigned last month over a covert breach of attorney-client privilege...
What. The. Fuck? In what universe is it constitutuionally permissible to intercept attorney-client communications or interfere with the attorney-client relationship?
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#6

Post by Slartibartfast » Thu Nov 02, 2017 7:01 pm

Maybenaut wrote:
Thu Nov 02, 2017 6:39 pm
What few people are talking about, and what is more troubling to me than any squabble about who has the authority to order whom to do what, is what led to the withdrawal in the first place:
The Miami Herald wrote:The lawyers resigned last month over a covert breach of attorney-client privilege...
What. The. Fuck? In what universe is it constitutuionally permissible to intercept attorney-client communications or interfere with the attorney-client relationship?
Me too. also.

Although this isn't really an unexpected consequence of secret military tribunals, is it?
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#7

Post by tek » Thu Nov 02, 2017 7:10 pm

from wonkette:
Until 2008, Guantanamo’s Echo II facility was controlled by the FBI, which installed monitoring systems in the interrogation rooms. Everyone pinky swore that the listening devices were disabled when the CIA took over, so defense counsel could use those rooms for confidential client meetings. Only someone had his fingers crossed, because a cursory examination revealed that those “smoke detectors” on the ceiling were actually listening devices.
...
Explanations from the supervising warden went from there are no devices, to we disconnected the devices, to we only monitor visually for safety reasons, to we only listen when it’s not privileged, to I’m not authorized to discuss classified information. Which was oddly NOT reassuring to lawyers who spent their whole careers protecting the sanctity of attorney-client privilege. So then they had A PROBLEM.
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#8

Post by Mikedunford » Thu Nov 02, 2017 7:15 pm

Caaflog has some stuff, and will probably have more later.

http://www.caaflog.com/2017/11/02/the-n ... more-37627
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#9

Post by Maybenaut » Thu Nov 02, 2017 7:31 pm

Slartibartfast wrote:
Thu Nov 02, 2017 7:01 pm
Maybenaut wrote:
Thu Nov 02, 2017 6:39 pm
What few people are talking about, and what is more troubling to me than any squabble about who has the authority to order whom to do what, is what led to the withdrawal in the first place:
The Miami Herald wrote:The lawyers resigned last month over a covert breach of attorney-client privilege...
What. The. Fuck? In what universe is it constitutuionally permissible to intercept attorney-client communications or interfere with the attorney-client relationship?
Me too. also.

Although this isn't really an unexpected consequence of secret military tribunals, is it?
Yes, it is unexpected, for [at least] two reasons.

First, even enemy combatants are entitled to whatever process is due under the Military Commissions Act, which guarantees them the right to counsel. Spying on their communications with their counsel is a denial of that right, I would imagine.

Second, and just as important, intruding on American lawyers’ attorney-client relationship puts those lawyers’ licenses at risk. In order for them to adequately represent the interests of their client, they have to have unfettered, confidential, access. If they don’t, they have to withdraw. Why? Because they can neither discuss strategy nor elicit facts from the client if they know the government is listening.

A lot of the stuff discussed in these tribunals is classified, but the proceedings themselves are open, IIRC. The press is there, if I’m not mistaken, and they’re releasing transcripts. Surveillance of attorney-client communications is beyond the pale, even for these proceedings.
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#10

Post by Slartibartfast » Thu Nov 02, 2017 7:48 pm

Maybenaut wrote:
Thu Nov 02, 2017 7:31 pm
Slartibartfast wrote:
Thu Nov 02, 2017 7:01 pm
Maybenaut wrote:
Thu Nov 02, 2017 6:39 pm
What few people are talking about, and what is more troubling to me than any squabble about who has the authority to order whom to do what, is what led to the withdrawal in the first place:



What. The. Fuck? In what universe is it constitutuionally permissible to intercept attorney-client communications or interfere with the attorney-client relationship?
Me too. also.

Although this isn't really an unexpected consequence of secret military tribunals, is it?
Yes, it is unexpected, for [at least] two reasons.

First, even enemy combatants are entitled to whatever process is due under the Military Commissions Act, which guarantees them the right to counsel. Spying on their communications with their counsel is a denial of that right, I would imagine.

Second, and just as important, intruding on American lawyers’ attorney-client relationship puts those lawyers’ licenses at risk. In order for them to adequately represent the interests of their client, they have to have unfettered, confidential, access. If they don’t, they have to withdraw. Why? Because they can neither discuss strategy nor elicit facts from the client if they know the government is listening.

A lot of the stuff discussed in these tribunals is classified, but the proceedings themselves are open, IIRC. The press is there, if I’m not mistaken, and they’re releasing transcripts. Surveillance of attorney-client communications is beyond the pale, even for these proceedings.
It was predictable because rights require oversight and enforcement to uphold or, eventually, someone will choose to ignore them because there are no consequences. Which seems to have happened here. If anyone is prosecuted for violations of the Military Commissions Act I will apologize most graciously, but right now, the military has no claim to honor nor integrity in this matter and due to incidents like this and the work of Yoo and Bybee and everything in between, it is hard to deny the accuracy of predictions that there would be abuses of the rights of enemy combatants (which were certainly made at the time).
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#11

Post by Notorial Dissent » Thu Nov 02, 2017 7:56 pm

That whole thing doesn't make a whole lot of sense, and what does I find deeply disturbing. If what Maybenaut is saying is even partly true then it is deeply disturbing.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#12

Post by Maybenaut » Thu Nov 02, 2017 8:04 pm

Well, there is oversight. The Military Commissions Act provides for it. There’s the military judge. Above him is the Court of Military Commission Review. Above that is the Court of Appeals for the Armed Forces, and I’m pretty sure Congress has given the US Supreme Court final review.

The current fight, I believe, is over who gets to decide when counsel can withdraw (for the record, I think the CAAF would ultimately side with the judge).

But underlying all of that is what brought us here in the first place — the surveillance . These reviewing authorities will look at all of that. I’m just saying that, in terms if outrage, I’m much more bothered by that than I am by the pissing contest between the military judge and the General (having read the transcripts, there’s blame and ego on both sides, I think).
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#13

Post by Slartibartfast » Thu Nov 02, 2017 8:24 pm

I do not believe there will be any effective oversight regardless of the Constitution, Federal, or Military law. I would very much like to be wrong, but I doubt that the breach of attorney-client privilege, which I agree is indefensible, will ever be fairly adjudicated.
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#14

Post by Maybenaut » Thu Nov 02, 2017 8:42 pm

Slartibartfast wrote:
Thu Nov 02, 2017 8:24 pm
I do not believe there will be any effective oversight regardless of the Constitution, Federal, or Military law. I would very much like to be wrong, but I doubt that the breach of attorney-client privilege, which I agree is indefensible, will ever be fairly adjudicated.
Oh, I do. My experience with the CAAF has been, on the whole, positive. I don’t always agree with their decisions, but they’re usually reasoned.
"Hey! You know, we left this England place because it was bogus. So if we don't get some cool rules ourselves, pronto, we'll just be bogus too." - Thomas Jefferson

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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#15

Post by Slartibartfast » Thu Nov 02, 2017 9:17 pm

Maybenaut wrote:
Thu Nov 02, 2017 8:42 pm
Slartibartfast wrote:
Thu Nov 02, 2017 8:24 pm
I do not believe there will be any effective oversight regardless of the Constitution, Federal, or Military law. I would very much like to be wrong, but I doubt that the breach of attorney-client privilege, which I agree is indefensible, will ever be fairly adjudicated.
Oh, I do. My experience with the CAAF has been, on the whole, positive. I don’t always agree with their decisions, but they’re usually reasoned.
I'm a rules hawk and believe in regular order, so that would be sufficient to me. Like I said, I hope I'm wrong.
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#16

Post by Maybenaut » Thu Nov 02, 2017 10:05 pm

Slartibartfast wrote:
Thu Nov 02, 2017 9:17 pm
Maybenaut wrote:
Thu Nov 02, 2017 8:42 pm
Slartibartfast wrote:
Thu Nov 02, 2017 8:24 pm
I do not believe there will be any effective oversight regardless of the Constitution, Federal, or Military law. I would very much like to be wrong, but I doubt that the breach of attorney-client privilege, which I agree is indefensible, will ever be fairly adjudicated.
Oh, I do. My experience with the CAAF has been, on the whole, positive. I don’t always agree with their decisions, but they’re usually reasoned.
I'm a rules hawk and believe in regular order, so that would be sufficient to me. Like I said, I hope I'm wrong.
Oh, me too. I’m a Rules hawk, and a Rules nerd (I actually love the arcana, of both Court Rules and Rules of Evidence). Like I said, I don’t always agree with their interpretation, but almost always it’s over things where reasonable minds can differ. I’ve never walked out of CAAF feeling like I wasn’t listened to, nor has it ever appeared to me that they misunderstood my argument.

I believe there’s adult supervision over the military commissions, and I’m sure all if this stuff will get litigated (now possibly sooner rather than later, which might be the defense’s end game).
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#17

Post by Notorial Dissent » Fri Nov 03, 2017 8:05 am

Maybenaut wrote:
Thu Nov 02, 2017 10:05 pm
Slartibartfast wrote:
Thu Nov 02, 2017 9:17 pm
Maybenaut wrote:
Thu Nov 02, 2017 8:42 pm


Oh, I do. My experience with the CAAF has been, on the whole, positive. I don’t always agree with their decisions, but they’re usually reasoned.
I'm a rules hawk and believe in regular order, so that would be sufficient to me. Like I said, I hope I'm wrong.
Oh, me too. I’m a Rules hawk, and a Rules nerd (I actually love the arcana, of both Court Rules and Rules of Evidence). Like I said, I don’t always agree with their interpretation, but almost always it’s over things where reasonable minds can differ. I’ve never walked out of CAAF feeling like I wasn’t listened to, nor has it ever appeared to me that they misunderstood my argument.

I believe there’s adult supervision over the military commissions, and I’m sure all if this stuff will get litigated (now possibly sooner rather than later, which might be the defense’s end game).
Which might be their only chance at getting a fair trial for their clients, and could well have been the only approach they had with the way things were. I certainly hope you are right.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#18

Post by neeneko » Fri Nov 03, 2017 8:28 am

Maybenaut wrote:
Thu Nov 02, 2017 6:39 pm
What. The. Fuck? In what universe is it constitutuionally permissible to intercept attorney-client communications or interfere with the attorney-client relationship?
I am trying to think of a better term than 'kangaroo court', since all the guns means the courts have real authority.

But these cases have only the thinnest facade of consistent law behind them, and a lot of made up theatrics going on. The appearance and motions of justice, but at the end of the day inferrior people who should have 'known their place' embarrassed the US military by successfully striking a valid military target. It is actually a good example of why terrorists go after so many soft targets, it isn't like going after the harder ones magically makes the opposing force start treating you like peers.

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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#19

Post by Maybenaut » Fri Nov 03, 2017 5:40 pm

CAAFLog is saying that The convening authority has deferred the running of confinement for General Baker until the Convening Authority can decide whether to approve it.

http://www.caaflog.com/2017/11/03/conve ... /#comments

The Daily Beast is saying that in the habeas proceeding Judge Lamberth is going to give the convening suthority reasonable time to decide whether the punishment should stick.

https://www.thedailybeast.com/pentagon- ... tanamo-bay
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#20

Post by ElaineSoCal » Sat Nov 04, 2017 7:34 pm

Federal judge blocks military judge from having U.S. marshals seize defense attorney

NOVEMBER 04, 2017 3:34 PM

GUANTANAMO BAY NAVY BASE, CUBA 

Rick Kammen, the long-serving war court defense attorney who quit the USS Cole case over a secret ethics conflict, has obtained a federal order preventing U.S. Marshals from snatching him in the United States and forcing him to appear at the Guantánamo war court by teleconference.
:snippity:

http://www.miamiherald.com/news/nation- ... 92076.html

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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#21

Post by Maybenaut » Wed Nov 22, 2017 10:31 am

The Office of Military Commissions Convening Authority approved the military judge's contempt findings, disapproved the remaining sentence of a fine and confinement, and forwarded the record for an administrative ethics review.

Here's a link to the presser:
http://www.mc.mil/Portals/0/OMC%20PA%20 ... 2017_1.pdf
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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#22

Post by Addie » Wed Mar 07, 2018 1:39 pm

Miami Herald
Now we know why defense attorneys quit the USS Cole case. They found a microphone.

Lawyers for the alleged USS Cole bombing mastermind quit the capital case after discovering a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it, the Miami Herald has learned.

The narrative, contained in a 15-page prosecution filing obtained by the Herald, is the first authoritative description of the episode that caused three civilian defense attorneys to resign from the death-penalty case of Abd al Rahim al Nashiri on ethical grounds: Rick Kammen, a seasoned death-penalty defender, and Rosa Eliades and Mary Spears. In fact, the prosecution says the listening device lawyers discovered in an early August inspection of their special meeting room was a legacy of past interrogations — and, across 50 days of ostensibly confidential attorney-client meetings, was never turned on.

The description, an eight-paragraph, declassified version of something the public was not allowed to know until this week, was contained in a prosecution filing at the U.S. Court of Military Commissions Review signed by the chief prosecutor for military commissions, Army Brig. Gen. Mark Martins and three appellate lawyers on his staff.

It says that, after the three lawyers quit the case in October, prison workers “removed flooring, walls, and fixtures” in an attorney-client meeting site exclusively used by Nashiri and his lawyers and “confirmed that legacy microphones, which were not connected to any audio listening/recording device nor in an operable condition, were removed.”

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Re: USS Cole Judge at Gitmo Finds Lead Defense Counsel in Contempt

#23

Post by Maybenaut » Wed Apr 17, 2019 4:52 pm

Remember Judge Spath, the military judge who held the defense counsel for Gitmo detainees in contempt? There was a lot of back and forth, the military judge was never able to force the defense counsel to follow his orders, and he ultimately abated the proceedings. The Court of Military Commission Review (made up of appellate judges from the service courts of criminal appeals) ultimately upheld Judge Spath's rulings.

Al-Nashiri and two of his defense counsel filed writs of mandamus with the DC Circuit Court of Appeals. Al-Nashiri wanted the court to vacate all orders issued by Judge Spath. The defense counsel wanted the court to vacate the orders refusing to recognize their withdrawal from representation.

Well. Turns out the military judge had a major conflict of interest. While he was presiding over Al-Nashiri's case, he was actively seeking employment with the justice department as an immigration judge (although it is the DOD and not the DOJ who prosecutes in the military commissions, there is a certain amount of overlap, and one of the lead prosecutors was actually a DOJ attorney). Not only was he seeking employment, he had actually been offered employment and given a start date, and he failed to disclose any of that to the defense.

From the opinion (I deleted the internal citations to make it easier to read):
The fact of Spath’s employment application alone would thus be enough to require his disqualification. But Spath did yet more to undermine his apparent neutrality.

First, in his job application, Spath chose to emphasize his role as the presiding judge over Al-Nashiri’s commission. He boasted that he had been “handpicked by the top lawyer of the Air Force to be the trial judge” on “the military commissions proceedings for the alleged ‘Cole bombing’ mastermind,” and he even supplied an order from Al-Nashiri’s case as his writing sample. Spath thus affirmatively called the Justice Department’s attention to his handling of Al-Nashiri’s case, making his performance as presiding judge a key point in his argument for employment.

Second, while Spath made sure to tell the Justice Department about his assignment to Al-Nashiri’s commission,
he was not so forthcoming with Al-Nashiri. At no point in the two-plus years after submitting his application did Spath disclose his efforts to secure employment with the Executive Office for Immigration Review. Indeed, perhaps most remarkably, less than twenty-four hours after receiving his July 2018 start date, Spath indefinitely abated commission proceedings, musing on the record that “over the next week or two” he would decide whether “it might be time . . . to retire.” Given this lack of candor, a reasonable observer might wonder whether the judge had done something worth concealing.

It is, of course, entirely possible that Spath’s orders were the product of his considered and unbiased judgment, unmotivated by any improper considerations. But that is beside the point: “[a]ppearance may be all there is, but that is enough.” As the Supreme Court has explained, “[t]he problem . . . is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.” Spath’s job application, therefore, cast an intolerable cloud of partiality over his subsequent judicial conduct. Al-Nashiri thus has a clear and indisputable right to relief.
In deciding whether mandamus was an appropriate remedy the Court said,
Although it was Spath who had the ultimate obligation to recuse himself, the judge was hardly alone in his lack of diligence. The Justice Department knew that Spath had applied for an immigration judge job and that he continued to preside over Al-Nashiri’s case while awaiting his start date. The prosecution, upon receiving the defense’s request for discovery into Spath’s employment negotiations, refused to investigate the matter and
instead accused Al-Nashiri’s team of peddling “unsubstantiated assertions.” On the very same day the CMCR denied Al-Nashiri’s motion to compel discovery, citing his failure to “show[] that ‘a reasonable and informed observer would question [Spath’s] impartiality,’” the Justice Department announced Spath’s investiture as an immigration judge. And just a few months ago, the government informed this court that the military judge who replaced Spath—the same judge the CMCR and the government once suggested should hear Al-Nashiri’s disqualification motion in the first instance to “decide whether Judge Spath acted inappropriately,” —was herself engaged in apparently undisclosed employment negotiations with the Justice Department during the pendency of this very case.
The Court granted Al-Nashiri's motion, and found the lawyers' motions moot as a result.

Looks to me like the Al-Nashiri prosecution has to start all over again.
"Hey! You know, we left this England place because it was bogus. So if we don't get some cool rules ourselves, pronto, we'll just be bogus too." - Thomas Jefferson

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