Wednesday, August 9, 2017
A decision from the United States Court of Appeals for the District of Columbia Circuit granted the recusal of a judge in the case arising from the September 11 attacks
Petitioner Khalid Shaikh Mohammad is a detainee at Guantanamo Bay, Cuba, who is currently being tried by military commission on charges of planning and bringing about the attacks of September 11, 2001. He asks this Court to issue a writ of mandamus directing that the Hon. Scott L. Silliman of the United States Court of Military Commission Review (CMCR) recuse himself from serving as a judge in Petitioner’s case on the basis of public statements made by Judge Silliman prior to and during his service on that court. Specifically, Petitioner identifies more than a dozen statements—from press interviews, speeches, and academic writing—that he says indicate Judge Silliman is biased against him. In addition, Petitioner asks us to vacate a June 29, 2017, opinion by a panel of the CMCR that included Judge Silliman.
Recusal is required in light of the judge's expressed views on the case
As Petitioner explains, Judge Silliman has done just that: expressed an opinion that Petitioner is guilty of the very crimes of which he is accused. Specifically, he points to an interview that then-professor Silliman gave to The World Today in 2010, prior to his appointment to the CMCR. Pet. App. 148–50. In that interview, which concerned the trial of Guantanamo Bay detainee Ahmed Khalfan Ghailani, Silliman stated that: “We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others.” Id. at 149. Later in the interview, Silliman said that “[t]o compare Ghailani to Khalid Sheikh Mohammed, they’re two totally different types of cases. And the magnitude of what they did is very different.” Id. (emphasis added).
Those statements represent the “express[ion] [of] an opinion concerning the guilt or innocence” of Petitioner within the plain meaning of Rule 902(b)(3). While the Rule contains an exception for statements made “in the performance of duties as military judge in a previous trial of the same or a related case,” that has no application here, as Judge Silliman’s statements were not made “in the performance of duties as military judge” but before he was ever appointed to the CMCR. R.M.C. 902(b)(3). Because the Rule prescribes that a military judge who has expressed such an opinion “shall . . . disqualify himself,” R.M.C. 902(b)(3), and Judge Silliman failed to do so, Petitioner has adequately demonstrated that his “right to issuance of the writ is clear and indisputable.” Cheney, 542 U.S. at 381 (citation and internal quotation marks omitted).
The court rejected the Government's contentions that it mattered that the statements were made prior to the judicial appointment. The court further rejected the contention that the judge had not expressed his personal views concerning guilt.
Because Petitioner has satisfied all three conditions for its issuance, we grant the petition for a writ of mandamus recusing Judge Silliman and vacate the June 29, 2017, decision of the CMCR.
Judge Silliman's biography is linked here.
Circuit Judges Rogers, Tatel and Griffith joined the per curiam opinion. (Mike Frisch)