A federal appeals court on Friday rejected a petition by Guantanamo detainee Nashwan al-Tamir to dismiss the charges against him and disqualify the judge presiding over his case over conflicts of interest.
Al-Tamir was apprehended in 2006 in Turkey, taken to a CIA black site and tortured for six months, and then held at Guantanamo for seven years without charges. A commission was formed in 2014 to handle his case and try him for war crimes and conspiring to commit terrorist attacks. Navy Captain named Kirk Waits presided over the commission before becoming the Deputy Director of the Navy Office of the Judge Advocate General Criminal Law Division of the Department of Defense. He had applied to other positions while still in his role overseeing the commission as well.
In 2019, the US Court of Appeals for the District of Columbia Circuit ruled that “a military judge’s application for an immigration judge position created an appearance of bias requiring recusal.” Waits subsequently disclosed his role on the commission and resigned from his position. However, another judge had also presided over the commission and later became a judge, and instead recused himself and cited an intent to retire. Matthew Blackwood, a civilian Supervisory Attorney Advisor for Judge Michael Libretto and another judge that oversaw the commission, continued to serve in this role while applying for outside employment.
In hearing al-Tamir’s petitions regarding Waits, Libretto held that he would reconsider any of Waits’ decisions because Waits should have recused himself. Al-Tamir did not have his charges dismissed. Libretto also held that Blackwood’s applications and acceptance of outside employment did not disqualify the judges for which he was serving from hearing al-Tamir’s case.
With the case now before the DC Circuit, the government has offered to have any of al-Tamir’s court decisions reheard by a different judge. The DC Circuit held that this was an adequate remedy to the improper process that had occurred. Furthermore, the court held that, while Blackwood’s failure to disclose his pursuit of outside employment was “concern[ing],” it could not say that his actions created a conflict warranting recusal of the judges for which he was working. Thus, the court denied the petitions brought by al-Tamir over these conflicts.