have been litigating in pretrial proceedings in guantanamo their capital case for more than seven years and we are here today asking the court to think nine months of judicial decisions arising from colonel specifically he asked for the prosecution who had requests an ex parte a proceeding to expand the notion of that proceeding into a history of the expected litigation in the case so essentially he wanted an ex parte a presentation from the prosecution the same prosecution that he worked for just three years earlier the same some of the same prosecutors that were his colleagues just three years early thirty evidence that he himself worked on this prosecution the best that he was able to give on the record and what do you hear was that he just not to the best of his recollection he did work on the case and to the best of his recollection he didn't get any he wasn't present at any briefings but the record also shows that counterterrorism prosecutors of which there were only forty and we know at least three of those while appearance problem that a reasonable person looking at the record or question his ability to be impartial the question is not whether he actually worked on the case but whether the record shows that he appeared to be impartial and if you're honest is going down to  federal prior federal government work and being on the bench has noticed has no application in the military and the military judges are always with the federal government so that's why in the military and in military justice there not a for branch part of the government and they're the appearance issues for all and there will are therefore paramount and the importance of a judge ensuring that the appearance of impartiality is maintained is therefore so much more important in the military as that will work in the system when his son versus united states which we cite in our papers the court of appeals of the armed forces was clear that in the military justice system the the impartiality of a judge in fact and in appearance is paramount to preservation of the system and this is where where things fail colonel perella in his tenure at the counterterrorism section worked with prosecutors on this case he was a full fledged prosecutor prosecuting counterterrorism cases such as a petition or the section that forms of orders and that's that's where the record shows us that there are approximately forty orders so it's in fact much more loud analogous to the private firms situation and again i don't want to be dragged around charges joins the rd branch as you know and that judge becomes independent and is no longer and will no longer theoretically return to the executive branch that is not the case with the current corella who was sent to the bench assigned to the bench  work in the sections believes you can be assigned to a particular section but that doesn't mean that's exclusively what you do and you certainly sit it on unit meetings of office wide briefings memoranda are distributed throughout the office to everybody and might know later the chief of counterterrorism section himself wrote a letter to the marine corps after colonel promise of time working a c t s saying that's exactly what  well i think one of the relevant factors is that when presented with the questioning of the petitioners during voir dire september th that was the best answer that he could give was to the best of my knowledge i did not work of the chief prosecutor to work on the night of the nine hundred and eleven case he was not that he did not appear in court on behalf of the united states in guantanamo but that is not what's necessary to establish an appearance alongside prosecutors that are prosecuting this capital case there's an appearance problem also one of the factors that the original person have to take into consideration is in december  fourteen the senate select committee on intelligence issued its report on the interrogation and detention program commonly known as the torture report a copy there was only so many copies given to government agencies the senate gave a copy t then you would you concede then that you can become says it says the military judge as acted as counsel which is not true or in the same case general or no it's neither of those would cover your argument that he was on the staff  it's because the government the mill the military judge cruel and to some extent of the court of military commission review didn't take this matter seriously and did not err on the side of more transparency and accountability they didn't the government denied this ruling denying the motion to compel discovery said as far as he could tell there is no right to any discovery at all other disqualification motion which cannot certainly be the case because of the the nature of this proceeding than the need for heightened due process and a liability of its findings because it's a capital case and because the rule for a military commission like the federal rules provides for discovery that is material to the preparation of the case there is nothing more particularly material to the preparation of a motion to disqualify based on his work at c t s then discovery regarding his time at c t s he denied that thousand and eight stayed in contact they had met in the late ninety's and stayed in contact since that is a relevant factor that goes into the question as well his failure to affirmatively disclose and then one follow up questions were attempted other information that has been induced into this record it's only one part of the puzzle in the the bigger puzzle here is or problem that the military commission has is this public confidence problem and if accountability more discovery by this time a c t s than what we what occurred here today and if without that then there is a loss of public confidence in the system and that is why this is an extraordinary case that needs remedy today before us we provided to the court in the supplemental excerpts the entire war dear it was from nine am to three pm we're just prolactin answer questions from the defense counsel and i just like to focus on one recall that none of the cases that i was working on involved anything other than article three courts that had no workings with the o in c that's office of military commissions or the nine hundred and eleven case so he he did specifically recall that he didn't work on this case or any other commission cases or even on any other al qaeda matters and it's not it's going to entirely unsurprising that he didn't work on these cases and that he didn't have any professional interaction with the people who did because  the cases are being prosecuted out of an office in virginia that is headed by military general the c t s attorneys who work for this general on the on the this case go to work every day in virginia they don't have an t s and his right social events where he didn't discuss the substance of the case geisha and is consistent with everything the judge throw a sad and just fills in details with the i guess what they're asking for them the internal memoranda he wrote the kind of things that the o j doesn't give out when petitioners have never in their papers or in the argument today set forth any legal right they have to discovery in this type of thing and if you compare it to there's quite a few cases that we cite regarding recusal issues none of those cases involve motions for discovery or right to discovery none of them set forth the right to discovery and none of them frankly have anywhere near the level of disclosure of information that judge corella gave in this case if you compare for example or then judge kavanagh's disclosures in bigger and bigger  gives the specific information that they're entitled to and no more trust perla gave extensive background answering the questions again four hours  the rules are exactly the same there are certain differences between the two rules and they stem mainly from the fact that the rules the military rules which are are the same court mar account for the possibility that a judge formerly was in private practice because military judges don't come from private practice their career governments their career military officers family jag officers and so the the difference between the two sections is that military rules are gender inclusive where the federal rule simply uses the masculine pronouns this is a argument that they're making for the st time today it's not in their papers and they didn't make it below and they have they have not elicited any support for that for the pro in order to for prior government service to require disqualification there must be quote rare in extraordinary circumstances arising out of prior government employment but not covered or in vision and by some part b so that is  that is there must be something about the prior employment itself that is different from what one would have anticipated and there is nothing of that sort here  touch is not really accurate in fact while the they were acquainted with each other they met in the late ninety's both being military jag officers in the marines they did not have much international though they were both station in san corellas teammates just brought me to th member for his athletic team and one of his teammates suggested mr go haring and on the basis that mr herring was athletically speaking the best available person just  agreed to have mr go haring on his team or invite him on the team and they did not train together they came together the day of the event they competed they did again the next year and then after that they didn't speak at all for years so there really there's no friendship whatsoever and even if there were a friendship of course is not a basis for a judge refutal trooper chews on i would point you there's a number of cases on this but judge made is opinion for the district court in philip morris explains this in some detail and in that case he and the attorney appearing before him were in fact friends they worked at the same law firm the attorney and host of judge meet and his wife in his in his we have something far below an ordinary friendship well i think if the sunni were under four hundred and fifty five also and we can consider the appearance of partiality  isn't a matter of building on things he's he's in an office with forty lawyers that's one point one of the those lawyers happens to be the prosecutor that's the nd point it isn't it is the appearance it seems to me gets stronger the more points you have but question accurate he's not in the scene office he's in a different state he's in d c the military commissions are being prosecuted out of virginia so that you know that there is contact in the office as i understand it from the record attorneys who work on the military commissions work full time on the military commissions so they're not and they don't have offices in c t s they're just really explained that he saw it was a growth area and again two to three dollars to three dollars times during that period one of which was the marine corps ball  the judges chosen by the chief judge for military commissions and that was judge paul at the time the pool the judge pulled chooses from and this isn't a record and again i don't have a pinpoint cite is that it's nominees of military judges who have to have at least two years of judicial experience and they're nominated by the t j maxx which is that the head of the jack service the jag organization for each of the three services so just probably was nominated by the  know just pro also talk about how he knew general baker who is the head of the military commission defense organization who is also a marine  jack and i was just conclude by noting as we did in our brief that there are numerous cases of prosecutors including u s attorneys leaving their office and hearing cases as district worldwide embassy security that's one piece of what he's the head of security at embassies for the united states so the marines are responsible for security and foreign embassies our embassies abroad is an record of the times th just follow up on questions for from i believe judge table or was just ginsburg that the pool of available judges and there's a footnote in the petition by mr all his salary  that just in the navy or the marine corps alone there are four hundred and fifty dollars plus individuals that would have fit the regulation with two or more years of experience at that time period so it's a very large pool so at the end of the day how do we resolve these lingering questions about what exactly he did and the kind of terrorism section i think the record does establish that odor was a clear and indisputable right to this discovery and although discovery orders are generally not of healable for review mandamus is an extraordinary remedy that can take the place of you know in a discovery or  of discretion by judge pirro in denying that motion to compel the discovery and had the the parties obtained information about his work at c t s and again the deliberative process privilege was not something the government asserted in that dish in response to that discovery request their response was go yes judge parole during voir dire which again takes this whole situation out of the four hundred and fifty five dollars around in forty in federal court obviously you do not board dire a federal judge to determine whether she is going to be an impartial but in the military system in the military commission system you deal and if like judge parole or then there is a motion to compel discover that would be material to