 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 10, 2020                Decided March 13, 2020

                         No. 19-1146

  IN RE: AMMAR AL BALUCHI, A/K/A ALI ABDUL AZIZ ALI,
                     PETITIONER


         On Petition for a Writ of Mandamus to the
     United States Court of Military Commission Review


    Alka Pradhan, Counsel, Office of Military Commissions,
argued the cause for petitioner. With her on the petition for a
writ of mandamus and reply was Benjamin R. Farley, Trial
Attorney.

    Danielle S. Tarin, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the opposition to
the petition for writ of mandamus was Joseph F. Palmer,
Attorney.

   Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge TATEL.

     TATEL, Circuit Judge: Guantanamo detainee Ammar al
Baluchi is one of five co-defendants facing capital charges
related to the planning of the September 11 attacks. Al Baluchi
alleges that prior to his transfer to Guantanamo Bay and his
                               2
prosecution before a military commission, he was “detained
incommunicado, and tortured for [three and a half] years in
black sites [run] by [the] CIA.” Pet’r’s Br. 10. In defending
against the capital charges, al Baluchi contends that his torture
renders certain incriminating statements key to the
government’s case inadmissible. According to al Baluchi, in
order to make that defense, he needs evidence from one
particular detention center, so-called “Site A,” which the
government plans to “decommission”—i.e., destroy—in the
near future. He therefore seeks a writ of mandamus, asking us
to prevent the government from proceeding with the site’s
destruction. The government, however, has produced digital
and photographic representations of Site A and al Baluchi
cannot show, as he must, that it is clear and indisputable that
those representations are so insufficient as to warrant the
extraordinary remedy of mandamus.

                               I.

     As relevant here, al Baluchi was apprehended in Pakistan
in early 2003. Al Baluchi alleges that from his arrest in 2003
until his transfer to Guantanamo Bay in 2006, he was held at
one or several CIA “black sites,” where he claims the United
States held him “incommunicado” and subjected him to
prolonged torture. Pet’r’s Br. 10. In hand-written notes, al
Baluchi describes being “suspended . . . naked” for long
periods of time in a darkened cell and restrained by handcuffs
for “120 days straight” that became “so rusted” they required
removal “by bolt cutters.” United States v. Mohammad,
Military Commission Appellate Exhibit (“AE”) 524NN
(Aug. 22, 2018), Attach. C at 1, 3. He further recalls having his
head “smashed. . . against the wall repeatedly” and “harsh
music” continuously “blast[ed] . . . for weeks” to deprive him
of sleep. Id. at 1, 5. The government concedes that “CIA
                               3
personnel subjected [al Baluchi] to Enhanced Interrogation
Techniques,” Resp’t’s Br. 10 n.6.

     Al Baluchi alleges that immediately prior to his transfer to
Guantanamo Bay, CIA personnel held him at one particular
detention facility: Site A. Although our court has had no
occasion to address Site A, it has been the subject of litigation
in the district court. In 2011, in response to habeas corpus
petitions filed by al Baluchi and nine other detainees—all
unrelated to this case—the government filed a classified, ex
parte motion asking the district court for authority “to
substitute digital, photographic, and physical preservation
methods for preservation in situ of [a particular] physical
overseas detention site that was formerly used to detain at least
one of the ten habeas petitioners.” Resp’t’s Br. 7 (internal
quotation marks omitted). The government confirms that the
site at issue in that proceeding was Site A, the same facility
used to detain al Baluchi.

     In lieu of preserving the physical site, the government
proposed creating a “digital and photographic record” and
sought a finding from the Court that such a digital record would
“satisf[y] discovery and preservation orders . . . in some or all
of the underlying habeas cases.” Al-Shibh v. Obama, No. 06-
1725, slip op. at 2, 5 (D.D.C. filed May 9, 2012). Specifically,
the government proposed to demolish the site after
documenting it using the same techniques employed when it
decommissioned a detention center in Bagram, Afghanistan.
To preserve evidence related to the Bagram site, the
government “generate[d] an interactive digital virtual tour
based on GPS data; laser scanning; total station survey data;
spherical     photography;     still   photography;       manual
measurements; blueprints and source data; and aerial lidar and
imagery.” Id. (internal quotation marks omitted). The
government also preserved “blueprints, official photographs,
                               4
and other records in the Department of Defense’s possession
that reflect the interior of [Bagram] since the United States
assumed control of the facility.” Id. The district court ordered
the government to “take all of the preservation steps outlined
in the stipulation regarding substitute preservation methods at
Bagram,” and granted the government’s substitution request in
May 2012. Id. at 12, 20.

     That same month, proceedings against al Baluchi and his
alleged co-conspirators commenced before a military
commission, and the government filed an ex parte, in camera
motion seeking permission to begin destruction of Site A and
to substitute digital documentation for physical preservation.
The government provided defense counsel with an unclassified
version of the filing, which described “the type of information
the government sought to preserve through digital means.”
Resp’t’s Br. 10. In response, defense counsel filed several
motions opposing destruction and seeking discovery related to
Site A.

     In 2013, the military commission ruled that at least some
of the information regarding Site A was discoverable, and,
deferring a ruling on precisely what the government was
required to disclose, ordered the government to “preserve any
existing evidence of any overseas detention facility used to
imprison any of the defendants or potential witnesses in this
case, including maintaining any structure or fixture in its
current state.” United States v. Mohammad, AE 080G at 1
(Dec. 19, 2013).

    In June 2014, however, the military commission issued an
ex parte, in camera classified order granting the government’s
motion to substitute digital and photographic evidence and to
decommission Site A. At that time, the defense’s remaining
motions related to Site A—including a motion to visit the
                                5
detention center and conduct discovery—remained pending.
The government then began decommissioning the site.

     After learning of Site A’s partial decommissioning and
receiving a truncated, summarized version of the government’s
photographic and digital documentation, al Baluchi moved for
a stay of the site’s destruction, which the Commission granted.
Al Baluchi objected to any further destruction of the site and
reiterated his requests to inspect the site first-hand or, at the
least, obtain additional information about the site from the
government.

     In a January 2018 ruling, the military commission denied
al Baluchi’s requests for access to Site A and to pause
proceedings until the government produced additional
information on Site A. Noting that “[c]rime scenes and related
locations wherein relevant physical evidence is collected are
routinely released to their owners after being documented,” the
Commission explained that “[w]hat occurred in this situation is
no different from what takes place in Federal and State courts
across the country, except perhaps that the ‘scene’ in this case
consists of highly classified information.” United States v.
Mohammad, AE 425PP at 15–16 (Jan. 19, 2018). Al Baluchi and
his co-defendants, the Commission concluded, “retain[ed] the
ability to present other comparable evidence” of the detention
center, and “to include testimonial evidence, documentary
evidence, and the Commission-approved summary of the
physical evidence.” Id. at 15. The Commission then denied al
Baluchi’s subsequent motion to compel additional evidence of
Site A. Having ruled on the outstanding discovery motions, the
Commission concluded that “there is no longer a compelling
reason” to stay the implementation of the Commission’s order
approving Site A’s destruction and lifted its earlier stay. United
States v. Mohammad, AE 052SS at 3 (Apr. 20, 2018).
                                6
     Along with several other co-defendants, al Baluchi then
filed a petition for a writ of mandamus with the Court of
Military Commission Review (CMCR) challenging the rulings.
Because of recusals related to one of al Baluchi’s alleged co-
conspirators, the CMCR lacked a quorum. Ultimately hearing
the case in 2019, the CMCR denied the petition. The CMCR
concluded that “the military judge’s orders permitting
substitute evidence for Site A and granting the government
permission to destroy it were not abuses of discretion,”
reasoning that petitioners “failed to adequately explain why the
substitute evidence approved by the military judge is
insufficient” or “why in considering any post-conviction
appeal [a reviewing court] would have a need to visit Site A,
let alone a need that supplants the burden on the government
for keeping the facility as it is for many years to come.”
Resp’t’s Br., Attach. A at 14. At al Baluchi’s urging and with
the government’s consent, the Commission agreed to stay the
destruction order until our Court ruled on the issue. This
petition for a writ of mandamus followed, seeking “to enjoin
the military commission from lifting its stay” of further
destruction of Site A. Pet’r’s Br. 25.

                               II.

     The Military Commissions Act of 2009 vests this court
with jurisdiction to review only “final judgment[s] rendered
by . . . military commission[s].” 10 U.S.C. § 950g(a). And
although the All Writs Act permits us to “issue all writs
necessary or appropriate in aid of [our] . . . jurisdiction[],” 28
U.S.C. § 1651(a)—that is, “we can issue a writ of mandamus
now to protect the exercise of our appellate jurisdiction
later”—mandamus disrupts the “important purpose” served by
the Military Commission’s final judgment rule, In re al-Nashiri
(“Al-Nashiri I”), 791 F.3d 71, 76, 78 (D.C. Cir. 2015).
Accordingly, when addressing mandamus petitions in the
                                7
context of the military commissions, we must “faithfully
enforce the traditional prerequisites for mandamus relief.” Id.
at 78.

     “[T]hree conditions must be satisfied before [a writ of
mandamus] may issue.” Cheney v. United States District Court
for District of Columbia, 542 U.S. 367, 380 (2004). “First, ‘the
party seeking issuance of the writ [must] have no other
adequate means to attain the relief he desires’—a condition
designed to ensure that the writ will not be used as a substitute
for the regular appeals process.” Id. at 380–81 (alteration in
original) (citation omitted) (quoting Kerr v. United States
District Court for Northern District of California, 426 U.S.
394, 403 (1976)). “Second, the petitioner must satisfy the
burden of showing that [his] right to issuance of the writ is clear
and indisputable.” Id. at 381 (internal quotations omitted).
“Third, even if the first two prerequisites have been met, the
issuing court, in the exercise of its discretion, must be satisfied
that the writ is appropriate under the circumstances.” Id.

                                A.

     Al Baluchi argues that he has no other adequate means to
seek the evidence he needs because the government’s digital
and photographic documentation of Site A is an inadequate
substitute for the original evidence contained at the site itself.
In other words, this is a discovery dispute. In the “normal
course, . . . mandamus is not available to review a discovery
order,” In re: Executive Office of President, 215 F.3d 20, 23
(D.C. Cir. 2000), because “[m]andamus is inappropriate in the
presence of an obvious means of review: direct appeal from
final judgment,” Al-Nashiri I, 791 F.3d at 78. Mandamus is
appropriate, however, where review of an order “after final
judgment is obviously not adequate.” In re: Executive Office of
President, 215 F.3d at 23. So, for example, if a lower court’s
                                8
order risks disclosing highly privileged information,
mandamus may be the only way to ensure the issue is subject
to appellate review; in such cases, by the time of a direct appeal
of a final judgment, the issue would be moot. See, e.g., In re
Papandreou, 139 F.3d 247, 251 (D.C. Cir. 1998) (explaining
how “[d]isclosure followed by appeal after final judgment is
obviously not adequate in such cases”).

     So too with the destruction of pertinent evidence at Site A.
If the commission erred in approving the decommissioning of
Site A and allowing digital and photographic documentation to
serve as a substitute, then any review of that decision would be
impossible by the time of direct appeal because, simply put,
Site A would no longer exist. The physical destruction of
evidence is a quintessential type of “irreparable” injury that
makes mandamus appropriate; it is an irreversible injury that
frustrates later appellate review. See Al-Nashiri I, 791 F.3d at
78. Mandamus is therefore a proper vehicle for seeking a stay
of Site A’s destruction.

     The government counters that al Baluchi “could seek . . .
relief for lost or destroyed evidence that he claims was material
to his defense . . . from the military commission, or from
USCMCR or this Court on appeal.” Resp’t’s Br. 32. But that
potential relief is very much second-best; indeed, that is the
entire basis of al Baluchi’s claim. Following Site A’s
destruction, al Baluchi would be reduced to seeking adverse
inferences or other, alternative forms of relief that would
potentially compensate him for the lost ability to obtain
favorable evidence. Such relief would not provide al Baluchi
with the same benefits as access to that evidence in the first
instance. Moreover, it is far from clear that al Baluchi could
even seek the relief the government imagines because, as the
government readily admits, “[i]t is unclear whether the
spoliation doctrine applies in the criminal context.” Id. at 34
                               9
n.9. The government’s suggested alternatives, in short, fail to
show that al Baluchi has “other adequate means” to attain the
relief he seeks. Cheney, 542 U.S. at 380 (emphasis added).

     This conclusion, however, does not apply to al Baluchi’s
claim that mandamus is necessary not only because the digital
and photographic documentation of Site A is inadequate, but
also because the government’s unclassified summary of that
documentation is deficient. Unlike his claim to evidence of Site
A itself, a challenge to the “summary” of the digital and
photographic record is available on direct appeal, as “the
original detailed video and photographic representations of the
physical evidence have been sealed and incorporated into the
record.” United States v. Mohammad, AE 425PP at 14 (Jan. 19,
2018). A writ of mandamus based on the summary,
accordingly, cannot be “in aid of [our] appellate jurisdiction,”
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943),
because the complete digital and photographic documentation
of Site A will be in the record regardless of whether we review
the adequacy of the summary now or later.

                               B.

     Even if mandamus is an appropriate vehicle for seeking
Site A’s preservation, al Baluchi is entitled to the writ only if
he can demonstrate that it is “clear and indisputable” that the
Commission abused its discretion in allowing proceedings to
continue while the government decommissioned Site A. The
“clear and indisputable” standard is demanding. Cheney, 542
U.S. at 381 (internal quotation marks omitted). “An erroneous
[lower] court ruling . . . by itself does not justify mandamus.
The error has to be clear.” In re Kellogg Brown & Root, Inc.,
756 F.3d 754, 762 (D.C. Cir. 2014). As our court has explained,
a petitioner’s right to relief is “clear and indisputable” where
he or she can point to “cases in which a federal court has held
                               10
that” relief is warranted “in a matter involving like issues and
comparable circumstances.” Doe v. Exxon Mobil Corp., 473
F.3d 345, 355 (D.C. Cir. 2007) (internal quotation marks
omitted). Accordingly, we will deny mandamus even if a
petitioner’s argument, though “pack[ing] substantial force,” is
not clearly mandated by statutory authority or case law. In re
Khadr, 823 F.3d 92, 99–100 (D.C. Cir. 2016). Al Baluchi
contends that he has overcome this demanding hurdle because
it is “clear and indisputable” that Site A’s destruction deprives
him of a “meaningful opportunity to present a complete
defense.” Pet’r’s Br. 34.

     It is axiomatic that criminal proceedings must “comport
with prevailing notions of fundamental fairness,” California v.
Trombetta, 467 U.S. 479, 485 (1984), which include “what
might loosely be called the area of constitutionally guaranteed
access to evidence,” United States v. Valenzuela-Bernal, 458
U.S. 858, 867 (1982). In the context of military commissions,
those constitutional safeguards are codified by statute and
regulation. The 2009 Military Commissions Act provides that
“the procedures and rules of evidence” in such proceedings
“shall include, at a minimum . . . [the accused’s right] to
examine and respond to all evidence admitted against the
accused on the issue of guilt or innocence and for sentencing.”
10 U.S.C. § 949a(b)(2)–(b)(2)(A). The Rules for Military
Commissions breathe further life into this directive. Military
Commission Rule 701(e), for example, requires that “the trial
counsel shall . . . disclose to the defense the existence of
evidence known to the trial counsel which reasonably tends
to: (A) Negate the guilt of the accused of an offense
charged; (B) Reduce the degree of guilt of the accused with
respect to an offense charged; or (C) Reduce the punishment,”
R.M.C. 701(e)(1), as well as disclose “evidence . . . that
reasonably may be viewed as mitigation evidence at
sentencing,” id. 701(e)(3). Rule 701(c) further provides that
                                 11
“the Government shall permit the defense counsel to
examine . . . [a]ny . . . tangible objects, buildings, or places . . .
which are material to the preparation of the defense.” R.M.C.
701(c)–(c)(1).

     The Commission concluded that digital and photographic
depictions of Site A would satisfy the government’s burden
under these rules and that al Baluchi’s prosecution could
therefore continue while Site A was destroyed. In so
concluding, the Commission applied Military Commission
Rule 703. That rule mandates that while generally “a party is
not entitled to the production of evidence that is destroyed, lost,
or otherwise not subject to compulsory process,” if “such
evidence is of such central importance to an issue that it is
essential to a fair trial, and if there is no adequate substitute for
such evidence, the military judge may grant a continuance or
other relief in order to attempt to produce the evidence . . . or,”
if that evidence cannot be produced, “shall abate the
proceedings.” R.M.C. 703(f)(2)(A)–(B). Explaining that the
Commission analyzes Rule 703 motions under a three-factor
test drawn from the Court of Appeals for the Armed Forces, the
Commission asked whether (1) the evidence was of such
central importance to an issue that it is essential to a fair trial;
(2) there was no adequate substitute for the evidence; and
(3) the defense was not at fault for the evidence being
destroyed. See United States v. Simmermacher, 74 M.J. 196,
201–02 (C.A.A.F. 2015); United States v. Mohammad, AE
114GG at 8 (Apr. 17, 2018) (applying same). Al Baluchi makes
much of the government’s alleged bad faith in destroying Site
A, but the same three-factor test applies regardless of whether
evidence is unavailable due to inadvertence or malfeasance.
See Simmermacher, 74 M.J. at 201 (“While the due process
standards . . . are still applicable to a constitutional due process
inquiry for lost or destroyed evidence, R.C.M. 703(f)(2) is an
additional protection the President granted to [military
                               12
defendants] whose lost or destroyed evidence fall within the
rule’s criteria.” (emphasis added)); see also United States v.
Wood, No. ARMY 20160465, 2018 WL 4191319, at *3 (A. Ct.
Crim. App. Aug. 28, 2018), review denied, 78 M.J. 245
(C.A.A.F. 2018) (“Constitutional due process protections of
this kind require an appellant to prove bad faith on the part of
the government. The Court of Appeals for the Armed Forces
(CAAF), however, has held that . . . [b]ad faith need not be
proven.” (citations omitted)).

     Applying that test, the Commission found that al Baluchi
“failed to meet two of the three required criteria” and there was
therefore no need to pause or abate proceedings due to Site A’s
destruction. Mohammad, AE 114GG at 8. Specifically, the
Commission concluded that (1) “the evidence [related to Site
A] is not of such central importance to an issue that the
evidence is essential to a fair trial,” and (2) regardless of Site
A’s importance, there were “adequate substitutes for the
evidence” available. Id. at 9. For our purposes, then, the
question is whether al Baluchi has shown that it is “clear and
indisputable” that the Commission abused its discretion in
arriving at those two conclusions. Because al Baluchi cannot
carry his burden with respect to at least the Commission’s
second conclusion, we have no need to address the first.

    Reviewing the digital and photographic evidence collected
on Site A, the Commission concluded that al Baluchi had
access to “adequate substitutes for the evidence.” Id. at 8.
Specifically, the Commission found that al Baluchi
“continue[s] to have the ability to present other comparable
evidence at trial, including, but not limited to” the “ability to
present descriptions of the evidence/locations as contained in
the discovery provided to the Defense” as well as “the
opportunity to call or cross-examine witnesses who viewed the
physical evidence and/or the treatment of the Accused” and
                                13
“the ability to testify themselves about the physical evidence or
the treatment of the Accused.” Id. Al Baluchi cannot show
“clear[ly] and indisputabl[y]” that this conclusion was an abuse
of discretion.

     Quite to the contrary, substituting documentation for
physical evidence is an accepted, even routine, evidentiary
practice. As the Commission and the district court in the habeas
litigation pointed out, courts do not indefinitely preserve
physical locations when they contain relevant evidence.
Instead, they allow documentary materials to stand in for that
evidence. See, e.g., 1 Federal Evidence Practice Guide
§ 2.10(3)(b) (2019) (Bender) (“The simplest and perhaps least
controversial way to preserve a scene or object is by taking
pictures of it. . . . It may be very difficult, particularly when a
case concerns a location relatively remote from the court, to
arrange for the fact-finder to view the premises. A good series
of aerial photographs will enable the lawyer to bring that
remote location to the courthouse.”); Annotated Manual for
Complex Litigation § 11.442 (David F. Herr ed., 4th ed., 2019)
(“[A]lteration or destruction of physical evidence” is permitted,
even “if opposing counsel objects”).

     Such substitutions, moreover, are especially appropriate in
cases implicating national security. The Military Commissions
Act itself authorizes military judges to allow the United States
“to delete or withhold specified items of classified
information” and to, instead, “substitute a summary” or “a
statement admitting relevant facts that the classified
information or material would tend to prove.” 10 U.S.C.
§ 949p-4(b)(1)(A)–(C). It is undisputed that Site A contains
reams of classified material; indeed, the unclassified appendix
contains virtually no information on Site A at all. Given that
the statute contemplates “delet[ion]” of classified information
or its substitution, id. § 949p-4(b)(1)(A), it cannot be that al
                                 14
Baluchi has a “clear and indisputable” right to the original
evidence at Site A if alternative evidence is available. Al
Baluchi contends that this Court or the CMCR may eventually
remand for additional factfinding, but the mere possibility of
later factfinding cannot override this clear statutory directive.
Otherwise, every case would require the preservation of
original classified information until a detainee exhausts his
appeals.

     Having concluded that substituting documentation for
physical evidence is appropriate in most cases, we ask whether
al Baluchi has shown, clearly and indisputably, that the
documentation was inadequate in this case. Prior to the
commencement of al Baluchi’s military commission
proceedings, the district court, relying on the government’s
preservation of evidence related to Bagram, ordered the
government to document Site A using techniques that included
“generat[ing] an interactive digital virtual tour based on GPS
data; laser scanning; total station survey data; spherical
photography; still photography; manual measurements;
blueprints and source data; and aerial lidar and imagery.” Al-
Shibh, No. 06-1725, slip op. at 4. In a classified portion of his
reply brief, al Baluchi contends that the government failed to
preserve certain key aspects of Site A. But he never explains
how, assuming the government complied with the district
court’s order, the existing record limits his ability to adequately
litigate the voluntariness of his statements in light of the totality
of the circumstances of his detention. We have reviewed the
classified record ourselves and can confirm that the
government took steps fully consistent with the district court’s
order. Al Baluchi has failed to show clearly and indisputably
that those steps fall short of providing an adequate substitute
for Site A itself.
                             15
                             III.

    For the foregoing reasons, we deny the petition for a writ
of mandamus.
                                                  So ordered.
