United States v. Al-Nashiri (374 F. Supp. 3d 1190, 2018)

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).

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 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 Al-Nashiri. 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 Al-Nashiri; (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 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 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.

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. 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 United States v. Al Qosi , 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 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 9-1a.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.

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 Al-Nashiri met. See Appellant Juris. Br. 5 & n.18 (Mar. 5, 2018). 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 Al-Nashiri 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 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 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. In addition, the Defense Intrusion Allegations, 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, 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.

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.[ ]

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).

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. 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 is good cause to permit counsel to terminate an attorney-client relationship. 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.

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. 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 Al-Nashiri'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.

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 WL 3029140, at *2, 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 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.

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. 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 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 Al-Nashiri?

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) 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, non-binding precedent on interpretation of the provisions of the Military Commissions Act.

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).

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. 1983) ), 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. ; Wright , 75 M.J. at 509. We have jurisdiction under 10 U.S.C. § 950d to decide this appeal. 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, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (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, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (concluding that jurisdiction was proper where matters were "inextricably intertwined" (citation 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 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 WL 3029140, at *1-2, 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 *1, 2018 U.S. Dist. LEXIS 101622, at *3. The CDC also challenged his criminal contempt conviction in a habeas action. Id. at *1, *2-3, 2018 U.S. Dist. LEXIS 101622, at *1, *5-7.

The district court held that the military judge lacked authority to hold BGen Baker in contempt. Id. at *13 & n.4, 2018 U.S. Dist. LEXIS 101622, 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 attachment or warrant for Mr. Kammen's appearance before the military commission, until a hearing on the merits. Id.

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, 95 S.Ct. 1300, 43 L.Ed.2d 591 (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, 91 S.Ct. 746, 27 L.Ed.2d 669 (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.

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. Al-Nashiri'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. R.M.C. 505(d)(2)(B) addresses changes in detailed defense counsel after formation of an attorney-client 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.

(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).

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.

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 attorney-client 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,