In re Al-Nashiri

Abd Al-Rahim Hussein Muhammed Al-Nashiri (defendant) was detained by the United States military at Guantanamo Bay for allegedly masterminding several ship-bombing attempts, including the completed bombings of the U.S.S. Cole and the M/V Limburg that had killed and injured crewmembers. A military commission was convened to try the charges against Al-Nashiri. These charges included the possibility of receiving the death penalty. Air Force Colonel Vance Spath was presiding over Al-Nashiri’s commission when Spath applied for a job with the Department of Justice (DOJ) as an immigration judge. The DOJ, through the attorney general, had helped establish the rules for military commissions and was involved in appeals from commission proceedings, including any future appeal from Al-Nashiri’s commission. In addition, the prosecution team (plaintiff) for Al-Nashiri’s commission included a DOJ attorney. In his employment application, Spath highlighted his work on the Al-Nashiri case. However, Spath did not disclose the existence of his job application in the commission proceedings or otherwise inform Al-Nashiri about the application. The DOJ offered Spath a job as an immigration judge, but Spath and the DOJ negotiated for over a year before settling on a start date. The next day, Spath indefinitely abated, i.e., paused, the commission proceedings, allegedly for case-related reasons, and disclosed only that he was considering retiring from the military during the abatement. Al-Nashiri’s attorneys later learned about Spath’s new position and believed that Spath’s application for employment with an entity related to the prosecution had tainted all of Spath’s rulings with possible bias. Because the commission was still abated, Al-Nashiri filed a motion to vacate Spath’s rulings in the United States Court of Military Commission Review. This appellate court declined to hear the motion, finding that the motion needed to be first brought in the commission proceedings, where a factual record could be developed. Al-Nashiri filed a petition for a writ of mandamus in the United States Court of Appeals for the District of Columbia Circuit, seeking to vacate Spath’s allegedly tainted orders.