because the military commissions have refused to take this court's decision and on the sherry seriously there's the issue of the c m c are trying to circumvent this court's clear directions regarding remedy with the acknowledged error in judge waite says application to be an immigration judge but there's also the fact that the c m c are in the military commissions ignored the apparent conflicts that surrounded matthew blackwood a senior member of the trial judiciary who was explicitly responsible for shaping judicial decisions he presided over ex parte sepia like hearings with the prosecution without the military judge present he used a judicial ruling as a writing sample secretly to the national security division which represents the government here and he traded on his position as a senior member in the trial judiciary to get a job with the component of the department of justice that is also part of a military commissions prosecution team no member of the public would consider this to be a fair and impartial judiciary to be clear matthew blackwood was not a law clerk in the sense of a federal judicial law clerk as i mentioned he presided over these ex part like hearings under military commission rule of evidence five o five this is something that a magistrate or a special master would you insist multiple instances the military judges did not even have access to the classified computer systems so matthew blackwood was the only one who did he was a g s fifteen subject matter expert which was the same rank as weights and rubin and he in fact outranks judge libretto the judges were part time on the military commissions maintaining an active court martial docket where as matthew black widow was the only senior member of the trial judiciary that was full time assigned to the hottie commission and he was of course long term he was there or through multiple years as three judges came and went he had a dynamic innovative legal work that would play a major role in shaping case decisions that's a quote from his job description at and ninety nine dollars of the joint appendix so the ethics rules that are limited to law clerks simply don't address what his role is he also testified how important this come if he could then say what are the judicial ethics apply to every member of the modern judicial family the fact that there are some carve outs for other job searches is it just simply doesn't apply to mr blackwo the restrictions on how a magistrate would search for a job is their term comes to an end is far more likeable and truly what what needed to happen is disclosure of his attempts to find a job  with with a party to prosecution and at that point steps could be taken perhaps mr altimeter would have waived apparent conflict by the judges would have been able to then security integrity of the decisions coming out of their chambers we are not suggesting that judges ruben or libretto intentionally shaped rulings to help matthew blackwood the real issue is how did he shape rulings in ways that the child just did not even skew a little bit differently it should not should not concern the court because in fact the cases also say that there is a spectrum of behavior on a law clerks job application and this is the that's the that that was one of judge opinions and that writing sample no bishop a ruling that excluded mr alchemy or from classified sessions of the military commission so he was training on his position there is a spectrum of law clerk behavior if we assume that law clerks are the correct analogy that would raise issues whatever that line might be matthew blackwood with so far on the other side the st arizona bank is probably best courts are the closest chase to look the thing is that most of the trying everyone does this rights and so there's no need to go back and look for exactly where these lines are and that's why the walls are in place we need objective moules so that there is no question here at whatever and it w disqualification you know did not also disqualify you know judges ruben and the bravo so that the only possible scoff acacias based on judge waits i guess why isn't it an adequate remedy to allow reconsideration of judge waits as decisions as the c m c are is you know undertaking or has order to be undertaken why isn't that adequate remedy here at least to see how that  old in which he's the only judge that's ever sat and that universe if the remedy is you get to pick any ruling you want that gets to nova reconsideration by somebody else now why isn't that that seems like something that's equivalent to elena shiri except to the extent it's not it's to your advantage because you get to preserve certain of his rulings otherwise how is it any worse than what happened in elena cheri just guess i think all we're trying to do is isolate the source of the possible possible dispute here and i just as a predicate to that i think it's helpful for all three of us if we just at least deal with the premise that if we're not talking about spillover consequences for rulings by the other judges and we're only talking about what judge waits did then that the remedy that were that's in effect now which is that you get an over reconsideration of any of those rulings that you choose that's no worse than what also void there are of course and here i think they should i don't know is there a dispute about that i would assume that a ruling that it encompasses oral rulings to it just is not the case right now that you can get dino de novo reconsideration of any oral ruling by to participate in a particular hearing once that has been ruled on orally it's our position that everything that follows of course have to be void because assuming that our client had not voluntarily waved to the parents that limited what information mr out near unclassified information mr alchemy or outs we could share with pro bono experts within a couple of months of that he issued a ruling that limited mr else mirrors access to witnesses of course shapes everything that happens after that point all of that five o five substitutions classified evidence shaped discovery litigation including the deposition that just occurred i think my time is up i can ask you one follow question just before we before we hear from mister if just assume for for purposes of the question that that i think that the remedy as to judge waits is is functionally the same as the remedy as was at issue a now machinery except that you get to identify certain orders that you actually don't want to have reconsidered and then the question becomes how would one deal with potential spillover consequences concerning the rulings by the judges who came along later and is there a standard or some approach that you would suggest on identifying that corpus of orders that came along later that are sufficiently bound up in orders that judge waits issued charge weights its decisions impacted later on every decision that he made on a substitution for classified evidence impacted investigations impacted other motions impacted other discovery litigation down the road so there could be ways that a ruling even would in favor of mr else me or early in my case but not rolling in his favor limited what  turned out not to be but we could that could be reviewable but at this point why wouldn't that be enough when you compare it to the alternative of dissolving the commission which we said in elma sherry was  is whether the order that under no review has been reversed affected so for example it suppose suppose the suppose suppose in the dyno though reconsideration  seems to me that it's pretty obvious that that decision is going to have affected later decisions because it means that petitioner would not have had the evidence from that discovery order  in support of his later motions so it's not that the later motion is affected by the bias it's just that it's affected by the fact that the  this is a big it's a big rip off this is a to the notion of voiding the proceedings from the time after and we application i fully understand that that is a big risk but that is unnecessary and the fact that there has been substantial amount of litigation it still haven't gotten to judgment we are still in a better situation than this court having to be a create the verdict and re hundred there's more than that because there are some closed hearings that i don't have transcript page numbers or you know which number of the actual days of hearings were short an hour or less there's also been delays in this you're asking for is fairly extreme on that there's nothing short of that that is workable or acceptable nothing short is workable and even in between what what is on the books now which is pub possibility standard even if the the it was flipped so that it was incumbent upon the government to show why there's no reasonable possibility as opposed to incumbent upon you to show why there is a reasonable possibility that regime still to you is something that's so there was there was a clear delineation of it and changing proceeding here there that simply doesn't exist it was only the arraignment happens and nothing else so in order to basically have and response to your question judge haydel there are one hundred and forty nine submitted decisions of judge rubin and judge libretto and of their its petitioner is able to point to only one that was affected by a decision of judge waits and that was the decision of judge waits denying the defense motion porn order that would prohibit female guards from touching him and when judge ruben was presiding over in court proceedings he had ordered the petitioner to appear in person and the petitioner violated that order refusing to come to court by renewing his objection to being touched by the male guards and judge ruben explained that he was going to overrule that objection and not reconsider the decision of judge waits on the ground that petitioner did not have a legal right to dictate the gender of the guard force but the c m c are explained that to the extent petitioner is able to point to any order including that order  demonstrates that the decision of judge ruben or judge libretto incorporated or otherwise relied upon a decision of judge waits then the new military judge judge zimmerman must consider those decisions to know well as well and so we think so this is very helpful so see if i can articulate it what petition would have to show petition would simply have to say take my hypothetical dish it would file with would list is the rubin orders that he believes are selected by the denial of the discovery order by weights and under the offer  female guards motion that that claim that petitioner raises that this decision of judge ruben was affected by judge awaits his decision should be presented to the military judge and then the military judge provides petitioner an adequate remedy which we believe would include mandatory dunno reconsideration of that decision by the new military judge and so does that mean the even if you don't just to push it a little bit further they identify an order as having been affected by a priority or issue by judge waits that's it it's not that then you come in and say wait a minute they're wrong to say that order was affected by something  contends that mr blackwood is more like a magistrate judge rather than a law clerk because he presided over ex parte meetings with prosecutors but judge waits explained during word dire that mr blackwood was acting under judge weight his direction and supervision and were performing only administrative tasks during this ex parte meeting with the prosecutors so for example judge waits explained that he had instructed mr blackwood to meet with the prosecutors and to ask them whether they had obtained judge weights of guidance on proposed substitutions and some rights reclassified and formation whether they had taken those his guidance into account and when they would be providing to judge wait for his review and decision those revived proposed summaries and substitutions and then he instructed mr blackwood to simply relay that information back to judge waits and so judge waits explained that there was nothing inappropriate about this process and that he would have done it himself except for the fact that he was stationed in italy but that it was appropriate for m blackwood to do as a law clerk because he was performing simply administrative tasks he would not making any judicial decisions and act as judge libretto explained during his war dire mr blackwood was prohibited from making any judicial decisions and petitioners military commission case and as each military judge who has presided over petitioners military commission case has explained either in more dire or testimony or a declaration before the military commission although they relied on their law clerks including mr blackwood for assistance they in each instance it was the military judge rather than the walker who were making the judicial decisions and petitioners military commission case and so because mr blackwood was simply a law clerk the normal recusal rule that applies to law clerks applies here and  must be screened from cases when they accept a position with a party that appears before the court not when they apply and here mr blackwood accepted only one position and that was the position with the u s attorney's office from the western district of missouri mr if we were to reject the analogy of mr blackwood to a term law clerk what would the standard then be for disqualification  as a as a government attorney working on this case the only two standards where or where of is a judge in a law clerk and so we think though that there's no sound reason to depart from the normal rule here where mr blackwood was not making any judicial decisions that was only assisting the judges the titian are pointed out that one of the attorneys from the u s attorney's office from the western district in missouri agreed to serve as a tank attorney in the sherry military prosecution at certain mental health issues arose at sentencing there but that attorney mr jett will lente explained in a sworn declaration that he had no involvement in the prosecution of petitioners no terry commission case and so because the employer and the party are not one in the same hypothetical about a discovery order the new judge takes a look at awaits discovery word says was affected by the tape and i'm going to grant that discovery he gets that discovery and you  t the prophylactic remedy that this court considered in alistair eat it sam even stronger here we see that all machinery was not a case of one bad after we have seen th m c are in the military commission eager to read it down to when that and that and trying to parse finally how exactly to implement the most limited possible remedy show would be impossible half kept trying to scrub