WASHINGTON (CN) - Attorneys for accused 9/11 mastermind Khalid Sheikh Mohammad asked a D.C. Circuit panel Wednesday to disqualify a military court judge from being able to rule on a government appeal in the case.
The judge in question is Scott Silliman, a former law professor at Duke University, who President Barack Obama appointed to the U.S. Court of Military Commission Review in 2011.
In April, Guantanamo chief prosecutor Army Brig. Gen. Mark Martins asked the court to reinstate two charges against Mohammad and the other four accused 9/11 conspirators that Army Col. Judge James Pohl had tossed out.
Pohl, the judge overseeing the 9/11 case, dismissed charges of property destruction and attacking civilian objects in April, ruling that the statute of limitations had run out on them.
Silliman, who became the court’s chief deputy judge in 2014, assigned himself, along with two other judges, to serve on a panel that will hear the government's appeal of that ruling.
Attorneys for Mohammad, however, have called into question public statements Silliman made about the accused conspirators.
Mohammad's attorneys say Silliman's prior statements to the media, at academic events and in congressional testimony, pose a risk of bias too high to be constitutionally tolerable.
According to court documents, in 2008, Silliman told the Los Angeles Times: “The fact is 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."
In 2010, Silliman made another comment that Mohammad's attorneys have said shows he is already convinced of their guilt.
"We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay — Khalid Sheikh Mohammed[sic] and four others[.]," Mohammad's 232-page petition for a writ of mandamus states.
According to Mohammad's petition, Silliman was quoted in the media again in 2011 about how Mohammad "will be" executed.
"He said, referring to Mr. Mohammad and to lethal injection executions carried out in the United States by the military, 'I’m assuming the same pattern will be followed, except for the location," the court documents say.
Silliman responded to the motion in June, arguing against recusal and saying that his prior statements did not reflect bias toward Mohammad or the other accused 9/11 conspirators.
But on Wednesday morning David Nevin, Mohammad's attorney, told the appeals panel that Silliman's past statements to the media should be "taken at face value."
"It seems to me there's a high risk that he meant what he said," Nevin argued, adding that Silliman would not have spoken them without having reached an internal judgment.
The relevant law requires recusal, he argued.
U.S. Circuit Judge Thomas Griffith wasn't present for the oral arguments, but U.S. Circuit Judges Judith Rogers and David Tatel zeroed in on language in the Manual for Military Commissions, which calls for recusal "when the judge, 'except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused.'"
Danielle Sue Tarin, who argued on behalf of the government, said the law governing recusal is limited to statements a judge makes only in their capacity as a judge, and not before.
This posed a problem for both Tatel and Rogers, who told Tarin her assertion runs counter to the plain language of the rule set forth in the Manual for Military Commissions.
Tarin said that law is inapplicable in this case and directed the judges to apply a different law, 28 U.S.C. § 455.
Even if the Military Commissions law did apply, Tarin said, the statements Silliman made did not reflect any conclusion about the guilt of Mohammad and the other alleged conspirators.
Tatel interrupted her, recalling Silliman’s statements.
“He’s clearly saying that Khalid Sheikh Mohammad is guilty of the charges,” he said.
Tarin cited several cases relying on 28 U.S.C. § 455, but Nevin told the court he was unfamiliar with them, asserting during rebuttal that the government had first raised the cases on Wednesday.
Nevin pointed to an order from the court issued on Tuesday, directing the parties to discuss the Military Commissions rule, not 28 U.S.C. § 455.
In closing remarks, Nevin said he found it hard to believe that a rule that does not contain a limitation about disqualifying statements could be reasonably interpreted to mean that.
Tatel noted during the hearing that if Mohammad is convicted, he could raise the issue during appeal. Why would the government want to jeopardize a conviction, Tatel asked Tarin.
Tarin said the government also has an interest in protecting the judiciary from disqualification. According to her understanding, unless a military judge resigns, only the president can remove a military judge from a panel.
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