On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

79 M.J. 29 (C.A.A.F. Apr. 2, 2019) (paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition

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