Federal Appeals Court Removes Military Judge From Case For Comments Prejudging 9/​11 Detainee’s Guilt

A fed­er­al appeals court in Washington has ordered the recusal of a mil­i­tary judge from hear­ing an appeal in the Guantánamo mil­i­tary com­mis­sion death penal­ty tri­al of five defen­dants accused of direct respon­si­bil­i­ty for the 9/​11 attacks. A unan­i­mous three-judge pan­el of the United States Court of Appeals for the District of Columbia Circuit ruled on August 8 that Judge Scott L. Silliman of the United States Court of Military Commission Review (CMCR) was dis­qual­i­fied from par­tic­i­pat­ing in appeals in the case because of pri­or pub­lic com­ments he had made pre­judg­ing the guilt of accused 9/​11 con­spir­a­tor Khalid Sheikh Mohammad.

Lawyers for Mohammad had peti­tioned the court to have Silliman removed from the case, cit­ing more than a dozen instances in which, they said, Silliman had made com­ments exhibit­ing a con­sti­tu­tion­al­ly intol­er­a­ble risk of bias. Before becom­ing a judge, Silliman gave an inter­view to The World Today in 2010 about the case of Guantánamo Bay detainee Ahmed Khalfan Ghailani. During that inter­view, he said: ​“We’ve got the major con­spir­a­tors in the 9/​11 attacks still at Guantánamo Bay — Khalid Sheikh Mohammed and four oth­ers.” Later in the same inter­view, Silliman com­pared Ghailani’s cul­pa­bil­i­ty to that of Mohammed, call­ing them ​“two total­ly dif­fer­ent types of cas­es” and say­ing ​“the mag­ni­tude of what they did is very different.” 

The judges wrote that ​“the Court can hard­ly per­ceive how call­ing Petitioner one of the ​‘major con­spir­a­tors in the 9/​11 attacks’ and refer­ring to what he ​‘did’ is any­thing oth­er than the expres­sion of an opin­ion con­cern­ing his respon­si­bil­i­ty for those attacks.” Such state­ments, they wrote, required Silliman to dis­qual­i­fy him­self from the case. Because ​“Judge Silliman failed to do so,” the court wrote, Mohammad had pro­vid­ed ​“clear and indis­putable” grounds for his removal. 

Mohammad’s peti­tion also cit­ed remarks made by Silliman in a 2008 inter­view with the Los Angeles Times, where he said that ​“we’re going to have a mil­i­tary com­mis­sion for those the United States believes, and most of the world acknowl­edges, to be ring lead­ers of the 9/​11 attacks.” The peti­tion also said that Silliman was quot­ed in anoth­er media inter­view in 2011 dis­cussing how and where Mohammad ​“will be” executed. 

The rul­ing vacates a June 29 order by the CMCR that had rein­stat­ed two charges against the defen­dants that the tri­al judge had dis­missed. The CMCR will now have to re-hear the gov­ern­men­t’s appeal of that issue before a new panel. 

University of Texas Law Professor Steve Vladeck, who rep­re­sents sev­er­al Guantánamo detainees in peti­tions seek­ing U.S. Supreme Court review of their cas­es, called the deci­sion ​“yet anoth­er sting­ing rebuke” of the CMCR by the Court of Appeals. He said the deci­sion in Mohammad’s case puts off res­o­lu­tion of anoth­er ques­tion raised con­cern­ing the CMCR, ​“whether active-duty mil­i­tary offi­cers (includ­ing the oth­er two judges on the CMCR pan­el that orig­i­nal­ly heard the government’s appeal) may law­ful­ly serve as judges on the CMCR.”