Amicus Curiae Brief — Ali Hamza Ahmad Suliman al Bahlul, Petitioner v. United States

No. 23-1072

In the Supreme Court of the

United States

ALI HAMZA AL BAHLUL, PETITIONER,

V.

UNITED STATES, RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE

CENTER FOR ETHICS AND THE RULE

OF LAW (CERL) AT THE UNIVERSITY OF

PENNSYLVANIA & THE NATIONAL

INSTITUTE OF MILITARY JUSTICE IN

SUPPORT OF PETITIONER

ALBERTO MORA

U. Penn. CERL

Exec. Board

8322 Woodlea

Mill Road

McLean, VA 22102

May 2, 2024

BRENNER M. FISSELL

Counsel of Record

FRANKLIN D. ROSENBLATT

Nat. Inst. of Mil. Justice

408 Saint David’s Ave

Wayne, PA 19087

(518) 231-8532

brenner.fissell@gmail.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................... ii

INTEREST OF AMICUS CURIAE..................... 1

SUMMARY OF THE ARGUMENT .................... 2

ARGUMENT........................................................ 5

I.

THIS PETITION TURNS ON

FUNDAMENTAL MATTERS OF JUDICIAL

ETHICS NEVER BEFORE CONSIDERED BY

THIS COURT ....................................................... 5

II. MILITARY PROSECUTIONS REQUIRE

SCRUPULOUS ATTENTION TO JUDICIAL

IMPARTIALITY ................................................12

III.

PROSECUTIONS OF WARTIME

ENEMIES PRESENT HEIGHTENED RISKS

OF BIAS …………………………………………..18

CONCLUSION ..................................................23

ii

TABLE OF AUTHORITIES

Cases

Bergdahl v. United States, No. CV 21-418

(RBW), 2023 WL 4743707 .............................13

Commodity Futures Trading Commn. v. Schor,

478 U.S. 833 ................................................... 14

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ...... 20

Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012) ...13

In re Al-Nashiri, 921 F.3d 224, 226 (D.C. Cir.

2019) ........................................................10, 13

In re Mohammad, 866 F.3d 473 (D.C. Cir. 2017)

.........................................................................13

In re Sofaer, 728 A.2d 625 (D.C. 1999) .............10

Jayfi v. Bush, No. 05-2104, Supplemental Pet.

for a Writ of Habeas Corpus (D.D.C., Dec. 14,

2005) ............................................................. 5, 8

Koki Hirota v. Gen. of the Army MacArthur, 335

U.S. 876, 879 (1948) ....................................... 23

Law Reports of the Trials of War Criminals,

UNITED NATIONS WAR CRIMES COMMISSION

VOL. V 1-22 (1948) ..........................................22

Opinion of Katsas, J. On Motion to Disqualify,

Bahlul v. United States, No. 22-1097 (D.C.

Cir., Mar. 10, 2023) ......................................5, 8

U.S. v. Husayn, aka Abu Zubaydah, et. al., 595

U.S. 195 (2022) .........................................17, 18

Williams v. Pennsylvania, 579 U.S. 1 (2016) ...11

Statutes

18 U.S.C. §207 ............................................. 10-11

18 U.S.C. §216 ................................................... 11

28 U.S.C. §455 .................................... 3-4, 6-8, 11

iii

Article 3 of the Geneva Convention (III)

Relative to the Treatment of Prisoners of

War, Aug. 12, 1949, [1955] 6 U.S.T. 3316,

3318, T.I.A.S. No. 3364 ..................................21

INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS, Dec. 9, 1966, 999 U.N.T.S.

171 (ratified June 8, 1992)................................ 15

NATIONAL DEFENSE AUTHORIZATION ACT FOR

FISCAL YEAR 2024, PL 118-31 § 533, December

22, 2023, 137 Stat 136 ...................................14

Protocol Additional to the Geneva Conventions

of 12 August 1949, and Relating to the

Protection of Victims of International Armed

Conflicts art. 75, June 8, 1977, 1125 U.N.T.S.

3....................................................................... 20

Other Authorities

152 Cong. Rec. S10309-02, 2006 WL 2771452 . 14

A. TUSA, THE NUREMBERG TRIAL 155 (1st Am.

Ed.1984)..........................................................19

BEYOND GUANTANAMO: RESTORING THE RULE OF

LAW TO THE LAW OF WAR, CERL Report, 2022.

........................................................................... 2, 17

Andrew Cockburn, How Donald Rumsfeld

Micromanaged Torture, COUNTERPUNCH (July

2, 2021) ................................................................. 19

Geoff Corn & Claire Finkelstein, Russia is

Threatening to Treat Foreign Fighters as War

Criminals: Can Countries Not Party to

Hostilities Protect Their Citizens?,

Smerconish.com (Mar. 16, 2022) . .................20

Gregory Katsas, Declaration, In re Guantanamo

Bay Detainee Litigation, no. 08-442 (D.D.C.,

August 28, 2008). .................................................. 5

iv

Draft Principles Governing the Administration

of Justice Through Military Tribunals, U.N.

Doc. E/CN.4/2006/58 at 4 (2006) ...................15

JEANNE GUILLEMIN, HIDDEN ATROCITIES

(Columbia UP 2017) ....................................... 21

Kevin T. Hall, Downed American Flyers:

Forgotten Casualties of Axis Atrocities in

World War II,JOURNAL OF PERPETRATOR

RESEARCH 192 (2021) ......................................... 21

Rachel VanLandingham, Courtroom as War

Crime: Ukraine’s Military Justice Struggle, 84

OHIO ST. L. J. 1297 (2024)..............................21

Speech of Bennie G. Thompson of Mississippi,

158 Cong. Rec. E901-03, 158 Cong. Rec. E90103 .................................................................... 13

The Department of Defense Rules for Military

Commissions: Analysis of Procedural Rules

and Comparison with Proposed Legislation

and the Uniform Code of Military Justice,

CONGRESSIONAL RESEARCH SERVICE (Sept. 25,

2006) ...............................................................14

Timothy Lang Francis, "To Dispose of the

Prisoners": The Japanese Executions of

American Aircrew at Fukuoka, 66 PACIFIC

HISTORICAL REVIEW 469 (1997) ..................... 22

United States S. Rep. No. 288, 113th Cong., 2d

Sess. ................................................................17

Rules

ABA MODEL R. OF PROF. RESP. 1.11...... 6-7, 9, 11

Treatises

Eugene Fidell et. al, GUIDE TO THE RULES OF

PRACTICE AND PROCEDURE FOR THE U.S.

COURT OF APPEALS FOR THE ARMED FORCES 1

(2024) ..............................................................19

1

Amici curiae Center for Ethics and the

Rule of Law (CERL) at the University of

Pennsylvania & National Institute of Military

Justice (NIMJ) respectfully submit this brief

pursuant to Supreme Court Rule 37 in support of

Petitioner.1

INTEREST OF AMICUS CURIAE

The Center for Ethics and the Rule of Law

(CERL) seeks to promote ethics and the rule of

law in national security by encouraging

interdisciplinary exchange among expert

academics, policymakers, and practitioners on

pressing national security concerns for the

purpose of advancing the rule of law. CERL

advances this aim by hosting conferences, public

symposia, and lectures, as well as publishing

collected volumes on specialized topics in

national security, along with policy papers, blog

posts and filing periodic amicus briefs. CERL has

particular expertise in the areas of the Law of

Armed Conflict (LOAC), professional ethics,

presidential war powers, and the Guantánamo

Bay detention facility. In 2022, CERL published

a lengthy and highly acclaimed report entitled

1 Notice pursuant to Sup. Ct. R. 37.2 was given to both

parties more than 10 days prior to filing this brief. No

party or counsel for a party helped to draft this brief, and

no party or counsel to a party made a monetary

contribution to fund the filing of this brief. Sup. Ct. R. 37.6.

Counsel for amici also wishes to note that while

Petitioner’s Counsel, Michel Paradis, is also currently the

General Counsel of NIMJ, he was ethically screened from

NIMJ’s decision to support Petitioner as amicus in this

case.

2

Beyond Guantánamo: Restoring the Rule of Law

to the Law of War.2 CERL is led by Prof. Claire

Finkelstein, Algernon Biddle Professor of Law &

Philosophy at the University of Pennsylvania—

an internationally recognized expert on national

security law and ethics. CERL therefore has a

compelling interest in ensuring impartial

adjudication of national security cases such as

this one.

The National Institute of Military Justice

(NIMJ) is a District of Columbia nonprofit

corporation founded in 1991 by Eugene R.

Fidell—the country’s leading expert in military

justice. NIMJ members include law professors,

military law practitioners, former U.S. military

judge advocates, and leaders of think tanks and

non-profits. Its overall purpose is to advance the

fair administration of military justice in the

Armed Forces of the United States, which in turn

contributes to the national security of the United

States. NIMJ takes an active interest in the

entire field of military justice and has frequently

weighed in on issues relating to the military

commissions.

SUMMARY OF THE ARGUMENT

The rule of law in the United States

depends critically on the impartiality of the

judges that preside over both state and federal

2 BEYOND GUANTÁNAMO: RESTORING THE RULE OF LAW TO

THE LAW OF WAR, available at

<https://www.penncerl.org/files/beyond-Guantánamorestoring-the-rule-of-law-to-the-law-of-war/>.

3

courts, as well as confidence on the part of all

participants in the process that this impartiality

will be defended and maintained at the highest

levels of the justice system. Where Article III

judges are concerned, this impartiality is largely

self-enforcing: federal judges determine on their

own whether their prior contacts with the case or

with participants in the case render them unable

to carry out their roles with the impartiality and

neutrality the law requires.

Judges making that determination in a

given case, however, are obligated to apply 28

U.S.C. § 455, which sets forth the conditions

under which federal judges must recuse due to

conflicts of interest. In this brief, Amici argue

that Petitioner was deprived of a fair hearing on

his substantive claim due to the failure of Judge

Katsas to recuse himself, despite the fact that

Judge Katsas was a government attorney on the

side of the prosecution in a closely related matter

pertaining to the legality of the government’s

case against Petitioner and the legality of his

detention by the U.S. government at

Guantánamo Bay. Amici argue that particularly

in the case of the review of a military commission

ruling, it is critical for the Article III reviewing

court to be punctilious in its professional ethics

in order to attempt to overcome the profound

distrust and skepticism parties to the case as

well as members of the public possess with

regard to the commission system. Plagued by

doubts abouts about its fundamental fairness

and legitimacy, the military commission system

in Guantánamo struggles to resolve fundamental

points of process such as whether confessions

4

that arguably constitute “fruit of the poisonous

tree” are admissible as evidence of guilt at a

commissions trial or whether the defendants in

the military commissions have a right to due

process of law. And because in many cases there

is no clearly established procedure or rules of

evidence, the commission judges must make

their own evidentiary rules at the same time that

they judge the evidence presented.

Any failure to live up to the highest

standards of integrity and fidelity to the law in

the case of a reviewing judge will further cast the

possibly tenuous status of the legal rulings in the

commission and will undermine faith in the

outcome of the commissions.

Amici also urge this Court to grant

Petitioner’s request for certiorari to consider the

novel questions regarding 28 U.S.C. §455 that no

court has squarely attempted to resolve. Section

455(a) suggestions that a judge must recuse at

any time at which the impartiality of his or her

judgment “could be reasonably questioned.” This

standard is easily met in this case. What is less

clear is the suggestion that Judge Katsas’ earlier

participation in Petitioner Bahlul’s case

constituted an entirely separate proceeding and

that therefore Judge Katsas need not recuse on

the bases §455(b). We reject this line of thought.

Amici further reject the suggestion that

invoking §455(a) as a more generalized conflict of

interest provision would implicate the

interpretation of §455(b) such that the latter,

more specific provision would no longer apply.

5

Amici maintain that both subsections (a) and (b)

can apply independently to a given case and that

the applicability of the former does not detract

from the applicability of the latter.

ARGUMENT

I.

THIS PETITION TURNS ON

FUNDAMENTAL MATTERS OF

JUDICIAL ETHICS NEVER BEFORE

CONSIDERED BY THIS COURT

As is well known to this Court, Judge

Katsas served as a high-ranking DOJ official

tasked with miliary commission litigation

between 2001 and 2009. Opinion of Katsas, J. On

Motion to Disqualify, Bahlul v. United States,

No. 22-1097 (D.C. Cir., Mar. 10, 2023). Among

other matters, he was counsel for the

government in the case of this very Petitioner

with regard to a habeas petition relating to

Petitioner’s current confinement and process

before the military commission. Gregory Katsas,

Declaration, In re Guantánamo Bay Detainee

Litigation, No. 08-442 (D.D.C., August 28, 2008).

That earlier petition was filed by Petitioner in

2005, Petition for Writs of Habeas Corpus,

Supplemental Petition of Ali Hamza Ahmad

Suliman Bahlool for Writ of Habeas Corpus and

Complaint for Injunctive, Declaratory and Other

Relief, Al Jayfi v. Bush, No. 05-cv-2104 (D.D.C.

Dec. 14, 2005), ECF No. 12, on the ground that

Petitioner had been the subject of “continued,

intensive, and enhanced interrogation . . .” Pet’s

6

Br. at 12. As detailed by Petitioner, Judge Katsas

has been a vocal supporter of the sort of

“enhanced interrogation” techniques Petitioner

claims were used on him and which have now

generally come to be associated with torture. Id.

Petitioner timely filed a motion to recuse

with respect to Judge Katsas which the latter

rejected, citing both 28 U.S.C. §455(a) and

§455(b)(3) as grounds for recusal. See Pet. Br. at

18.

The

former

provision

requires

disqualification in any proceeding where the

judge’s “impartiality might reasonably be

questioned.” 28 U.S.C. §455(a). The latter

requires recusal “when [the judge] has served in

governmental employment and in such capacity

participated as counsel, adviser or material

witness concerning the proceeding or expressed

an opinion concerning the merits of the

particular case in controversy.” 28 U.S.C.

§455(b)(3).

It is the position of Amici that the failure

of Judge Katsas to recuse under these

circumstances constitutes a violation of the clear

terms of §455(a) and (b)(3), but, had he been a

private practice attorney instead of a judge,

would have been a violation of the code of

professional ethics for lawyers. Rule 1.11(a)(2) of

the ABA Model Rules of Professional

Responsibility forbids a lawyer who has

previously worked for the government from

representing a client “in connection with a

matter in which the lawyer participated

7

personally and substantially as a public officer or

employee, unless the appropriate government

agency gives its informed consent, confirmed in

writing, to the representation.” According to Rule

1.11(e), the term “matter” is defined broadly to

include “any judicial or other proceeding,

application, request for a ruling or other

determination, contract, claim controversy,

investigation, charge, accusation, arrest or other

particular matter involving a specific party or

parties . . . .” ABA MODEL R. OF PROF. RESP.

1.11(e).

Having served as a lawyer for the

government in any matter connected with Bahlul

arising out of the same set of facts and involving

the same charges, Rule 1.11 bars Judge Katsas

from serving as a private attorney in any regard

whatsoever in the present case. That means that

neither the government nor Petitioner could hire

Judge Katsas to work on its legal team as a

private attorney in connection with this case.

Why should the judge reviewing the case be

permitted to be more conflicted than the

attorneys appearing on behalf of one of the

parties in that case? Surely a neutral arbiter

should be able to provide greater impartiality

and certainty as to his role in a given case than a

partisan advocate for one of the parties.

Yet in his opinion, Judge Katsas rejected

the §455(a) argument out of hand, stating that

“Section 455(a) is a more general ‘catch-all’

provision, so we should not lightly use it to shift

8

the lines specifically drawn in section 455(b).”

Opinion of Katsas, J. On Motion to Disqualify,

Bahlul v. United States, No. 22-1097 (D.C. Cir.,

Mar. 10, 2023). He goes on to say: “At most, that

should occur only in ‘rare and extraordinary

circumstances’ which are not present here.” Id.

at *6.

With regard to the §455(b) claim, Judge

Katsas asserts that the habeas matter in which

he served as prosecutor, namely Al Jayfi v. Bush,

filed on behalf of Bahlul and five other

Guantánamo detainees, was a separate

proceeding from the current case. See Al Jayfi,

No. 05-cv-2104 (D.D.C. Dec. 14, 2005), ECF No.

12. That case, he notes, involved a challenge to

Bahlul’s preventive detention as an enemy

combatant alongside that of other detainees.

This case, Judge Katsas maintains, “involves

detention imposed as punishment for a criminal

conviction,” and is therefore an entirely different

matter under §455(b). Judge Katsas therefore

believes he was not precluded from participation.

Judge Katsas arrived at this surprising

conclusion, despite the fact that the case involved

the same parties with regard to the same

underlying facts and the same incarceration in

Guantánamo based on the same charges.

We respectfully disagree, both with the

characterization of §455(a) and its relationship to

§455(b), especially as it applies to the instant

case.

9

With regard to §455(a), it is not a far

stretch to say that the impartiality of a judge who

has previously represented one of the parties in

a matter connected with the ongoing challenges

to the defendant’s criminal charges, legal process

and incarceration “might reasonably be

questioned.” This would supply an independent

basis for thinking that Judge Katsas must recuse

from the present matter, even if one were to

accept the understanding of §455(b) to the

present matter provided by Judge Katsas,

namely that the habeas petition and the current

application are separate “proceedings.”

By way of comparison, consider the case of

Abraham Sofaer, who served as Legal Advisor to

the U.S. Department of State, and later

undertook to represent the government of Libya

with respect to the bombing of Pan American

Flight 103 over Lockerbie, Scotland. In the State

Department, Sofaer had personally and

substantially taken part in the U.S.

government’s investigation of the bombing as

well as in diplomatic and legal activities related

to that event. The case went to the District of

Columbia based on a Professional Responsibility

report directing bar counsel to issue an

admonishment of Sofaer for activities that

contravened Rule 1.11(a). Most notably, the court

rejected Sofaer's argument that his involvement

was too infrequent or informal to violate the

ethics rule, but the court said:

The “substantially related” test by its

terms, however, is meant to induce a

10

former government lawyer considering a

representation to err well on the side of

caution. Respondent did not do so.

In re Sofaer, 728 A.2d 625, 628 (D.C. 1999).

Consider also the case of Judge Vance

Spath, who was seeking a position as a federal

immigration

judge

while

simultaneously

presiding over the Al-Nashiri case in the military

commissions. In re Al-Nashiri, 921 F.3d 224

(D.C. Cir. 2019). Judge Tatel, writing for a panel

of the D.C. Circuit, observed that “Spath's job

application . . . cast an intolerable cloud of

partiality over his subsequent judicial conduct”

in Al-Nashiri's case. Id. at 238. In identifying

Judge Spath’s serious conflict of interest and

failure to recuse himself from a case in which his

personal

interests

conflicted

with

his

professional duty of impartiality, the D.C. Circuit

ended up vacating two years of pretrial orders

over which Judge Spath had presided. Id. at 240.

Former government employees who leave

the executive branch have a mandatory two-year

waiting period before engaging in knowing

communications relating to particular matters

“in which the person participated personally and

substantially as such officer or employee” before

“any officer or employee of any department,

agency, court, or court-martial of the United

States or the District of Columbia, on behalf of

any other person . . .” 18 U.S.C. § 207. Violations

of this provision are punishable for up to one year

imprisonment, with five years imprisonment for

11

a willful violation. 18 U.S.C. § 216. Judge Katsas

does not fit the circumstances to which 18 U.S.C.

§ 207 applies, given that he is not appearing

before the court as a litigant or a party.

Nevertheless, as with Model Rule of Professional

Responsibility 1.11, it is sensible to assume that

a judge should have at least the impartiality and

commitment to ethical conduct with regard to

potential conflicts of interest that the parties

that appear before him are expected to maintain.

A former prosecutor or defense attorney that had

represented Petitioner before the commissions

would not be permitted to appear as a private

party before Judge Katsas in the instant matter,

on pain of serious criminal sanctions. Why then

should the presiding judge have more leeway

than the partisan advocates who appear before

the court, when he as neutral arbiter must be all

the more above reproach?

The impact of upholding Judge Katsas’s

decision would reverberate far beyond the

military tribunals. His narrow interpretation of

§ 455 would permit former AUSAs—many of

whom become District Judges—to sit on

proceedings that are collateral to those they

participated in while prosecutors. State

prosecutors who become state judges may do the

same, leading to a potential avalanche of Due

Process claims by defendants should the narrow

interpretation Judge Katsas proposes prevail.

See Williams v. Pennsylvania, 579 U.S. 1, 2

(2016)

(“A

constitutionally

intolerable

probability of bias exists when the same person

12

serves as both accuser and adjudicator in a

case.”).

Judge Katsas’ prior role in the military

commissions, along with his enthusiastic

endorsement of illegal and discredited methods

of interrogation create profound concerns about

the propriety of his decision to remain on the

three-judge panel that heard Petitioner’s case.

II.

MILITARY PROSECUTIONS

REQUIRE SCRUPULOUS

ATTENTION TO JUDICIAL

IMPARTIALITY

The foregoing observations should be

placed in the particular context of Petitioner’s

case: a military prosecution. The impartiality of

judges in military justice has long played a

central role in ensuring that Article II courts like

the commissions are governed by the rule of law.

As the U.S. Court of Appeals for the Armed

Forces (CAAF) wrote in the death penalty case of

the Fort Hood Shooter:

In the military justice system, where

charges are necessarily brought by the

commander against subordinates and

where…the convening authority is

responsible for selecting the [jurors],

military judges serve as the independent

check on the integrity of the court-martial

process. The validity of this system

depends on the impartiality of military

judges in fact and in appearance.

13

Hasan v. Gross, 71 M.J. 416, 419 (C.A.A.F. 2012)

(emphasis added).

That independence is equally important

where review by Article III judges of military

proceedings must occur. Just as the military

chain of command is headed by a civilian

commander-in-chief, so too must federal civilian

courts serve as final arbiters for cases in the

military justice system. In the absence of

assurance that judges reviewing military cases

are unconflicted, the benefits of having such

outside review of military decision making by a

neutral arbiter would be forfeit.

It is telling that many of the most

significant federal court opinions regarding the

procedural fairness of military trials have

involved claims regarding the bias of judges. See

Bergdahl v. United States, No. CV 21-418 (RBW),

2023 WL 4743707, at *1 (D.D.C. July 25, 2023)

(court-martial judge applying to be DOJ

immigration judge while using court-martial

rulings as writing sample); In re Al-Nashiri, 921

F.3d 224, 226 (D.C. Cir. 2019) (same); In re

Mohammad, 866 F.3d 473, 474 (D.C. Cir. 2017)

(Guantánamo appellate judge disqualified due to

prior statements regarding accused’s guilt).

In recognition of this, Congress created an

appellate review structure for military

commission cases that ensured they would be

subject to appellate review by an Article III

court, rather than by the proposed alternatively,

namely the CAAF, which is an Article I court.

Compare Speech of Bennie G. Thompson of

14

Mississippi, 158 Cong. Rec. E901-03, 158 Cong.

Rec. E901-03, E902 (“Reformed military

commissions are fully integrated within our

federal framework of criminal justice, are

overseen by our Article III appellate courts, and

are severely confined to their law of war

jurisdiction.”), with The Department of Defense

Rules for Military Commissions: Analysis of

Procedural Rules and Comparison with Proposed

Legislation and the Uniform Code of Military

Justice, CONGRESSIONAL RESEARCH SERVICE

(Sept. 25, 2006), at *38 (proposal for CAAF to

review), and 152 Cong. Rec. S10309-02, S10315,

2006 WL 2771452 (Levin Amendment to 2006

Act) (“An appeal under this section shall be

forwarded, by means specified in regulations

prescribed the Secretary of Defense, directly to

the United States Court of Appeals for the Armed

Forces”).

Similarly, Congress recently extended

certiorari review to all cases of military courtsmartial, providing universal access to Article III

judicial review on direct appeal. NATIONAL

DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR

2024, PL 118-31 § 533, December 22, 2023, 137

Stat 136.

The importance of safeguarding Article III

review and the integrity of the judges who

conduct such review is rooted in the concern for

judicial independence. Article III judges bring a

“guarantee of an impartial and independent

federal adjudication.” Commodity Futures

Trading Commn. v. Schor, 478 U.S. 833, 848

(1986).

15

The value of impartiality is recognized

internationally in the Decaux Principles

regarding military tribunals, adopted by the

U.N. Commission on Human Rights. DRAFT

PRINCIPLES GOVERNING THE ADMINISTRATION OF

JUSTICE THROUGH MILITARY TRIBUNALS, U.N.

Doc. E/CN.4/2006/58 at 4 (2006). Principle No. 13

establishes the “Right to a competent,

independent and impartial tribunal”:

The organization and operation of military

courts should fully ensure the right of

everyone to a competent, independent and

impartial tribunal at every stage of legal

proceedings from initial investigation to

trial.

While this case involves a civilian court

review of a military tribunal, international

human rights law to which the United States is

a party reflects the same requirement of

independence and impartiality. Art. 14,

INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS, Dec. 9, 1966, 999 U.N.T.S. 171

(ratified June 8, 1992) (“In the determination of

any criminal charge against him, or of his rights

and obligations in a suit at law, everyone shall be

entitled to a fair and public hearing by a

competent, independent and impartial tribunal

established by law.”).

The D.C. Circuit panel, of which Judge

Katsas was a member, provided a crucial level of

civilian, Article III review. The benefit of such

review is to inject a structural guarantee of

independence and lack of bias into what is

16

otherwise a military-driven prosecution. The

failure of Judge Katsas to recuse when he has a

duty to do so in light of a manifest conflict of

interest and possible personal subject matter

bias suggests that the Article III appellate

review of the commission system entirely fails to

serve its purpose.

The failure to observe the recusal statute

in a Guantánamo case, moreover, is not a trivial

error or even just an error that affects the

fundamental fairness of the proceedings for

Petitioner. Lack of fundamental justice and a

robust, impartial review of military commission

proceedings is a defect that places the legitimacy

of the entire military commission system at risk.

The history of the military commissions in

Guantánamo Bay suggests a system driven by

results-oriented adjudication, specious legal

reasoning, and lack of a genuine commitment to

the rule of law and fundamental fairness. From

the shameful history of the use of torture, along

with cruel and degrading treatment, in violation

of both domestic and international law, to the

indefinite detention for many years of numerous

defendants without charge, there is a long

history of detainee abuse at Guantánamo and at

other former “black sites” run by the United

States military, in conjunction with the CIA,

around the globe involving conduct that should

shock the conscience of law-respecting member of

the legal community. See BEYOND GUANTÁNAMO:

17

RESTORING THE RULE OF LAW TO THE LAW OF WAR,

UNIV. OF PENN. CERL (2022).

As a result of this history, it will not

surprise any member of this Court that these

military commissions are regarded by many as

irretrievably tainted. Id.

To this day, the

military commissions at Guantánamo continue

to struggle with fundamental legal questions

that arise as a result of this egregious history—

questions relating to the admissible of certain

kinds of evidence or the fairness of the

proceedings in the absence of robust

constitutional rights for the defendants, once

again made salient because of the history of

torture and abuse. It is a history that is by now

well known, as detailed in the 2014 Senate Select

Intelligence Committee Report. See generally

United States S. Rep. No. 288, 113th Cong., 2d

Sess. As Justice Gorsuch said in his dissent in

the case of U.S. v. Husayn, aka Abu Zubaydah,

et. al., 595 U.S. 195 (2022) in explaining his

reasons for rejecting the government’s invocation

of the State Secret’s privilege:

Zubaydah seeks information about his

torture at the hands of the CIA. The

events in question took place two decades

ago. They have long been declassified.

Official reports have been published,

books written, and movies made about

them. Still, the government seeks to have

this suit dismissed on the ground it

implicates a state secret—and today the

18

Court acquiesces in that request. Ending

this suit may shield the government from

some further modest measure of

embarrassment. But respectfully, we

should not pretend it will safeguard any

secret.

Id. at *1.

Justice Gorsuch, in short, recognized the

profound distortion that could occur when legal

doctrine is driven by the effort to obscure

embarrassing or illegal conduct on the part of the

government–in this case the shameful history of

the CIA-led torture program in the years

immediately following 9/11. With profound and

lingering suspicions about the degree of

governmental coverup relating to that program,

and the motivations behind the legal decisions

summarily made by judges in the commission

system, a thorough, dispassionate review of

major decisions made by judges in the

commission system seems essential if the

commissions can be regarded as possessing any

degree of legitimacy whatsoever.

III.

PROSECUTIONS OF WARTIME

ENEMIES PRESENT HEIGHTENED

RISKS OF BIAS

If the need for independent and impartial

judges is heightened in a military context, that

need is ever more apparent in the context of

military prosecutions of one’s enemies. The

problems of a command-driven adjudication are

complicated

by

the

natural

antipathy

19

prosecutors are likely to feel towards a wartime

enemy alleged to have committed war crimes or

otherwise violated the Law of Armed Conflict

(LOAC). While domestic military jurisprudence

has at times displayed a paternalistic concern for

the rights of the accused U.S. servicemember, see

Eugene Fidell et. al, GUIDE TO THE RULES OF

PRACTICE AND PROCEDURE FOR THE U.S. COURT

OF APPEALS FOR THE ARMED FORCES 1 (2024), the

reverse is true where foreign enemies are

concerned. As Justice Jackson famously observed

in his opening statement at the Nuremburg

trials: “That four great nations, flushed with

victory and stung with injury, stay the hands of

vengeance and voluntarily submit their captive

enemies to the judgement of the law, is one of the

most significant tributes that Power has ever

paid to Reason.” A. TUSA, THE NUREMBERG TRIAL

155 (1st Am. Ed.1984) (emphasis added).

Jackson’s remarks ring particularly true in

application to the early days of the military

commissions after 9/11, when a desire for

vengeance loomed large. Those were the days,

after all, in which Secretary of Defense Donald

Rumsfeld is alleged to have instructed DoD

General Counsel William Haynes to tell

interrogators to “take the gloves off.” Andrew

Cockburn, How Donald Rumsfeld Micromanaged

Torture, COUNTERPUNCH (July 2, 2021).

To combat this impulse to embrace

brutality in the wake of an attack like 9/11, it is

critical that military prosecutions for wartime

20

offenses adhere scrupulously to internationally

recognized standards of accountability and fair

play. Efforts to conduct prosecutions during an

armed conflict or after the cessation of hostilities

are subject to reciprocity, creating a need to base

both the substantive and the procedural norms

for conducting prosecutions on as objective and

impartial a foundation as possible. The best way

for a country to seek to vindicate the law of war,

then, is to model for its enemy how it hopes its

own soldiers will be treated. Otherwise, “No one

should be surprised that when one State 'pushes

the envelope' of international law others will

seek to fill that space in the future.” Geoff Corn

& Claire Finkelstein, Russia is Threatening to

Treat Foreign Fighters as War Criminals: Can

Countries Not Party to Hostilities Protect Their

Citizens?, SMERCONISH.COM (Mar. 16, 2022).

The international community widely

recognizes the importance of an unbiased

adjudicator in wartime prosecutions, along with

a prosecutorial process that reflects and is

governed by basic rule of law values. Hamdan v.

Rumsfeld, 548 U.S. 557, 631–32 (2006) (citing

Common Article 3 of the Geneva Conventions,

requiring trial by a “regularly constituted court

affording all the judicial guarantees which are

recognized as indispensable by civilized

peoples”); Protocol Additional to the Geneva

Conventions of 12 August 1949, and Relating to

the Protection of Victims of International Armed

Conflicts art. 75, June 8, 1977, 1125 U.N.T.S. 3

21

(“In no circumstances whatever shall a prisoner

of war be tried by a court of any kind which does

not offer the essential guarantees of

independence and impartiality as generally

recognized.”). Indeed, deprivation of the right to

an impartial adjudicator is itself a so-called

“procedural war crime.” Article 3 of the Geneva

Convention (III) Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T.

3316, 3318, T.I.A.S. No. 3364; Rachel

VanLandingham, Courtroom as War Crime:

Ukraine’s Military Justice Struggle, 84 OHIO ST.

L. J. 1297, 1297 (2024).

War crimes prosecutions in the 20th

century demonstrate well the problems with

biased adjudicators in cases of enemy

combatants. A good example of this comes from

the treatment of downed American pilots and

airmen in Japan. See Kevin T. Hall, Downed

American Flyers: Forgotten Casualties of Axis

Atrocities in World War II, 4 JOURNAL OF

PERPETRATOR RESEARCH 192 (2021).

The most well-known of these were the

Doolittle Raiders. Those that were captured were

subjected to what has been described as a “sham

trial.” JEANNE GUILLEMIN, HIDDEN ATROCITIES

294 (Columbia UP 2017). This trial “allowed no

defense counsel or translation into English and

lasted less than two hours.” Id. The Japanese

judges who conducted these proceedings were

later prosecuted after the war. Law Reports of the

Trials of War Criminals, UNITED NATIONS WAR

22

CRIMES COMMISSION VOL. V 1-22 (1948) (Sawada

Case). The trial court concluded that the two

judges were complicit in a serious deprivation of

due process. Id. at 7. One judge in particular

deserved special condemnation, Yusei Wako,

who “accepted the evidence without question”

and knowingly accepted false confessions as

evidence. Id. Overall, the court held that Wako

presided over a “false and fraudulent”

proceeding. Id.

Another group of downed airmen was

executed in Fukuoka in 1945 after sham legal

process—also involving Yusei Wako. Timothy

Lang Francis, "To Dispose of the Prisoners": The

Japanese Executions of American Aircrew at

Fukuoka, 66 PACIFIC HISTORICAL REVIEW 469

(1997). The crewmembers had participated in

firebombing missions of Japanese cities during

the waning months of the war, but they were shot

down and captured. Id. at 476. The lawyers

deciding the fate of the prisoners suspended a

proposed trial and proceeded with execution. Id.

at 484. The legal officer who made this decision

was none other than Yusei Wako. Id. at 482. At

the Tokyo Trials, the International Military

Tribunal would describe the scrapping of the

trial process as motivated by “local expediency,

revenge, and malice.” Id. at 496.

These examples can be contrasted with

the conduct of Justice Robert Jackson as Chief

Prosecutor of the Nuremberg military tribunal.

When presented with a case from the

International Military Tribunal of the Far East,

23

he chose to recuse himself despite the lack of a

factual nexus, solely on the basis of appearance:

I do not regard myself as under a legal

disqualification in these Japanese cases

under the usages as to disqualification

which prevail in this Court…. I have had

no participation either in the basic

decision to hold war crimes trials in the

Orient or as to the manner in which they

should be conducted. Nevertheless, I have

been so identified with the subject of war

crimes that, if it involved my personal

preferences alone, I should not sit in this

case.

Koki Hirota v. Gen. of the Army MacArthur, 335

U.S. 876, 879 (1948).

CONCLUSION

The writ of certiorari should be granted.

Respectfully submitted,

ALBERTO MORA

U. Penn. CERL Exec.

Board

8322 Woodlea Mill

Road

McLean, VA 22102

BRENNER M. FISSELL

Counsel of Record

Franklin Rosenblatt

Nat. Inst. of Mil. Justice

408 Saint David’s Ave

Wayne, PA 19087

(518) 231-8532

brenner.fissell@gmail.com

Counsel for Amici Curiae