Attorney successfully convinces panel of Guantanamo judge’s bias

A federal appeals panel threw out two years of decisions in a Guantanamo Bay death penalty case, a result of year-long litigation led by Los Angeles-based Jenner & Block LLP partner Todd C. Toral. Toral's clients argued the military tribunal judge was biased after secretly taking a Department of Justice position.

Toral represented two defense attorneys who attempted to withdraw from the case after they believed their client-attorney confidentiality was infringed, but were impeded by the tribunal judge. The attorneys, Mary E. Spears and Rosa A. Eliades, applied for a writ of mandamus to vacate the judge's rulings over a disqualifying appearance of bias, and the appeals court unanimously agreed. The decision "completely vindicates" his clients, Toral said.

"The egregious nature of the government's conduct here necessitated this forceful opinion by this unanimous panel," he said.

The decision will further drag out the longest-standing death penalty case at Guantanamo Bay, requiring a new military judge to revisit previously settled pretrial questions. In the underlying case, Abd Al-Rahim Hussein Muhammed Al-Nashiri, who is detained at Guantanamo Bay, is accused of plotting Al Qaeda's 2000 bombing of the USS Cole, which killed 17 American sailors, according to court documents.

"In ordering such relief, we fully recognize the burden the writ will place on the government, the public, and Al-Nashiri himself. Despite these costs, however, we cannot permit an appearance of partiality to infect a system of justice that requires the most scrupulous conduct from its adjudicators," Judge David S. Tatel wrote in the Tuesday opinion, joined by Judge Thomas B. Griffith and Judge Judith W. Rogers. In re: Abd Al-Rahim Muhammed Hussein Al-Nashiri, 18-1279 (D.C. Cir., April 16, 2019).

In a statement, Office of Military Commissions spokesperson Ronald E. Flesvig said prosecutors have not yet decided if they will appeal or seek en banc review.

Toral, who was formerly an infantry officer in the U.S. Marine Corps, became aware of the case and brewing conflict through military contacts. He was retained by Spears and Eliades as pro bono counsel at the end of 2017 and brought the case before the Court of Military Commission Review and District of Columbia Circuit. Matthew S. Hellman of Jenner & Block argued the appeal.

Though Al-Nashiri was formally charged in 2011, his case has been stalled in pretrial hearings as a result of major ethical dilemmas.

Al-Nashiri's defense attorneys discovered a hidden microphone in their meeting room at Guantanamo in 2017, according to the appellate opinion. Though the government said the microphone had never been turned on, Spears and Eliades, decided to withdraw due to ongoing confidentiality concerns.

The military tribunal judge, Colonel Vance Spath, ruled the attorneys withdrew without good cause and denied multiple motions for abatement. Last October, the Court of Military Commission Review upheld Spath's decision compelling the defense attorneys to continue representing Al-Nashiri.

At the same time, however, Spath had applied for and secured a position as an immigration judge at the U.S. Department of Justice a year into his assignment to the case, without disclosing it to Al-Nashiri and his lawyers. Records obtained through a Freedom of Information Act request filed by McClatchy revealed the application after the fact, prompting Al-Nashiri and his defense attorneys to seek relief vacating Spath's orders.

"They were under threat of loss of their personal liberty, ... all because they were trying to advance what they thought were their ethical obligations at a time when the Military Commission, Judge Spath and the prosecution were not at any time abiding by theirs," Toral said of his clients.

The appeals panel agreed, saying the circumstances created a "cloud of illegitimacy."

"Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in

this case, save for Al-Nashiri's defense counsel, all elements of the military commission system -- from the prosecution team to the Justice Department to the CMCR to the judge himself -- failed to live up to that responsibility," according to the opinion.

"That to me was the beating heart of the opinion," Toral said.

In the appeal, Al-Nashiri was represented by Michael D. Paradis of the Office of the Chief Defense Counsel. Joseph F. Palmer and Danielle S. Tarin represented the Department of Justice.