matthew holman for the petitioners and thank you and they're pleased the court general john baker is the second highest ranking waiter in the marine corps military commission more five o five expressly gives him the authority to excuse assistant defense counsel upon their application for withdrawal the secretary of defense charged the ministry in those rules amended that war to remove the express prior requirement that military judges mus when the military commission overrule the general's determination in this case exercise the power that it did not have and force petitioners to engage in a representation for which the general baker concluded they were entitled to withdraw from know just continue a little bit on judge griffiths question couldn't you the government's argument is the new military clients also taking orders if you're worried about a couple of reasons first of all of the government has suggested it might agree that we are support for us today that i've seen nothing from the government that would suggest that the orders coercion and here because of how the cases come to this court there are collateral consequences that will not go away will not go away we do not have adequate alternative means simply by going back to the commission today and saying today you the to be says who is the decider when counsel seek to withdraw and the answer to that question is the chief defense counsel and the chief defense counsel is not of your functionary in the government this  position created by congress held by a high ranking general whose job is not to be an advocate defense counsel is not like the u s attorney who is a source centrally the lead attorney on any prosecution the government brings the chief defense counsel's job is to supervise facilitate and supervise of facilitate the representation of defendants in that facility in the military commissions system that is the entity that congress chose to have authority in this area is again is not a typical advocate and it makes all the sense in the world that will final five that's that authority with the general but if there were any doubt about that one need only look at the previous version of will five all five which the c m c are inexplicably read as if it had not been amended there was a dispute between the c d c that you defense counsel and the military judge in a case called carter about rejection would have to come from lead counsel that know i've been working so closely with these two assistants that loving him to others will just disrupt my perforation well i don't understand how you see this plaintext structure yes three carter yes a discussion yes i'm just wondering practically what happens and whether that was what the court was concerned about well yes at one point when the presiding judge says you know i have to stop the proceedings oh the lead counsel will have a chance to brief these new assistant counsel on the case if i'm understanding the thrust of your question our position is and the rule says and the secretary of defense amended it to how this outcome that if the c d c determines that a system defense counsel have a  warrant withdraw when they ask for it then that is what happens is a practical matter of understand it correctly there would then be the opportunity to put in newcastle and i think it's important recognize here no role to play whatsoever in service i think it's quite clear emma you know i would understand your honour's talking about this as well you know if you look at what the two thousand and seven version of this rule sad which is that a denim one and event them four of our appendix the clearest thing that will five or five used to say is upon request of the accused or application for withdrawal by counsel user by the military judge upon application for withdrawal so that all will be used to say this one goes in the military the new rule completely removes that in the context in the aftermath of the case in which that was the key question that the government two questions about this number one you know when you read the government's brief one might get the impression that the government's concern here is that the chief defense counsel you know is sort of an advocate for for the detainees and and and jim state seems to have that impression to what and your argument is no he's appointed by the president confirmed by the senate right directly statutorily required to to protect the to ensure that all the detainees illust of this story so there is there any evidence in the record at all that sort of counters the government's government's suggestions that we need to worry about the independence of the defense counsel to threats against them like for example has a chief defense counsel have rejected a motion to withdraw an application to assume i'm not i don't know the answer to that question but i do know that the but the side seems to think that when and this may not be a question we have to decide i'm just curious i'm both sides seem to think that when there is an application for withdrawal which is what happened here that the chief defense counsel has to make a good cause shall write a good cause for it in other words it can only grant for good cause is that your view the rule the rules the i think most accurately read defines the chief the c d c s determination to be good cause when it's when it's what it is made but in this case general baker's excuse order found out it was because now i understand that the need to make that phone under your interpretate only your reading of this rule was it enough that that there was a quote application for w application for withdraw shift defense counsel baker could have granted it without making any finding correct isn't it i think that because of the office and one that we have no quarrel with us to determine whether or not there i know i know that's why i'm asking the question but that's not the way this thing reads it says it says it says little i says per application for withdraw and then i says requirement that the withdrawal be approved by by the military judge and indeed that record of it used to be in the rule for males or him if that's his argument is that wrong yes yes or application for withdrawal that's what this one is right yes application for withdrawal correct yes so how do you get a little too little because of the work the competent competent to detail such counsel so we're talking about the chief defense counsel this whole thing is about the actions of the chief defense counsel is it now we agree that the chip defense counsel  little eyes on the record not a little like what we think there are other good question on the record connex oh you mean the record says that refers to the judge yes but if the government tell you of the chief defense counsel it would permit the defense counsel to be excused even on the eve of trial or for example immediately before the cross examination of a critical government witness witness before that witness was about to  recognized every circuit court in the united states to first to the trial courts in their interpretation and enforcement of their local rules and petitioners provide no some basis upon which to do that here so even if this quirk concludes that will be to abuse silent with respect to until they attain a stand those orders or until they review a court overturns those orders and that was not what they did here so the military judge considered that she defense counsel's opinion as well as the petitioners reading of the rule and rejected orders every order from the date he applied for a job with that moved this case you know we think that that your c m c hours merits opinion from october eleventh twenty eighteen would punish them for violating the military commission's orders requiring them to continue their representation it's not to file a complaint against them the government's interest with respect to petition is simply to ensure adequate representation of a mystery and as long as it's some defense counsel it matters not to the government whether it's these particular defense counsel or other defense counsel the government could make this could have done this a long time ago the government wasn't in a position to support an application for a trial because of the  are explaining that in his view he would not be competent to represent all machinery and to look at least late june twenty eight thousand because of the press of other obligations that he had to address has been resolved we believe it has because when was it long as he provides that adequate representation the legal leave the military commission could grant an application for withdrawal on the ground that petitioners assistance is no longer need commission team to defend on the sherry and judge that the night that motion in appellate exhibit three forty l explaining that permitting captain mizer at that time to withdraw wouldn't disrupt the military commission proceedings because captain might not happen either but on the show he was represented by at least five additional defense counsel which explains that regardless of whether their belief counsel or not one of the factors that the military commissions consider in deciding whether to release  defense counsel is whether they will have adequate representation and we believe that adequate representation is available in this case and the government respectfully request that this general and the second highest ranking where in the report he serves at the pleasure of the president and can be removed for any reason or no reason as i appreciate my colleague's remark that he has denied requests to withdraw in the past this is a serious office held by a high ranking official that there's always a policy decision to be made about who should do this side of things here congress created an office that is held by someone who's more than cable not ser could and of course if the president would secretary of defense wish to remove general baker they could as well this is not in your government function or a this is a high level highly qualified highly decorated person who called who makes these decisions and who and what your answer to her argument that if you leave it up to him that is the chief defense counsel that you know at the very last minute in a very in opportune moment during the trial he could  position because he could be removed by the executive and that is the check on his power ok and what's your answer to her argument that the phrase is in double i guess for other good show of other good cause shown on the record a four point four and the other rules of court cannot vary the rule that we're talking about a regulation of the secretary of defense versus a rule that is probably good about the condition of the series so not so it can't be five is clear so you can stop right there as a four point four and four point two we laid out in our brief there is a system defense counsel are treated differently just as they are from the statute nine forty eight k and the regulation five zero two af and now the trial court rule on life the other counsel in the military commission rule there is not the requirement that they seek approval from the military just withdraw instead they are functionaries the responsibilities put them wrongly unwarrantedly and justifiably in danger of sanctions either from the state bar either from the bar the military commission or other person the simply going back now and recognizing which is always been the case that they are suppressed with the not necessary for the trial to continue does not remove that does not remove that and so this is only this court can prevent that or this court can prevent that i'll be there arguing that the sanctions are not be issued if this were doesn't it only discord can prevent that from happening as it should by granting us the writ and momentum as is an unusual remedy an extraordinary remedy the supreme court has recognized as appropriate for i'm awful representations and i want to stress again we did not seek to withdraw in this case when the microphones were discovered we did not asked would drop we asked for all together so that really you know it's always the decision maker here the secretary of defense's decision to decide whether something is optional or subject to change or not the right reading rule five or five is this is a war and other rules may be very different other systems the rules may be very different nothing this court says today about five or five has any necessary application to anything else anywhere but for five or five packs and history show that the department of defense which is charged with the mystery and  we are we ask that the court grant the written endianness thank you