WASHINGTON (CN) – The D.C. Circuit ruled unanimously Wednesday that a military judge must recuse himself from hearing the government’s appeal to reinstate charges against the accused mastermind of the 9/11 attacks.
David Nevin, arguing for Khalid Sheikh Mohammad, had asked the court last week to force U.S. Court of Military Commission Review Chief Deputy Judge Scott Silliman, who was appointed by President Barack Obama, to step aside.
Nevin argued that public statements Silliman made in media interviews, at academic events and during congressional testimony reflected bias against Mohammad.
Pointing to some of Silliman’s media interviews, the D.C. Circuit concurred with Mohammad.
“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,” the seven-page ruling states.
The per curium opinion notes a 2010 interview Silliman did with The World Today, in which he was asked about Ahmed Khalfan Ghailani, another Guantanamo Bay detainee.
Silliman is quoted as saying: “We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others.” Later, Silliman added: “[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.” (Emphasis added by the D.C. Circuit.)
A three-judge D.C. Circuit panel found that the language of the Rule for Military Commissions 902 in the Manual for Military Commissions calls for disqualification when a judge has expressed an opinion about a defendant’s guilt or innocence, except during their duties as a military judge in the same or related case.
Though the government had argued Silliman’s comments did not express his personal view, the appeals court found otherwise.
“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,” the opinion states.
Silliman, a former law professor at Duke University, had assigned himself to serve on a panel that will hear the government’s appeal of a ruling by Army Col. Judge James Pohl, who oversees the 9/11 case.
In April, Pohl tossed out charges of property destruction and attacking civilian objects against the 9/11 defendants on the basis that the statute of limitations had run out.
But chief Guantanamo prosecutor Army Brig. Gen. Mark Martins asked the court to reinstate the charges. In responding to a motion for recusal by Mohammad, Silliman refused to step down, arguing that his prior statements did not reflect bias toward Mohammad or the other accused 9/11 conspirators.
The government had argued that Silliman’s comments merely reflected what had been commonly reported at the time about Mohammad and the other four accused 9/11conspirators, including that he had previously admitted guilt.
But this argument failed to persuade the panel, which noted that Mohammad has claimed such statements were made because of extensive exposure to torture.
“Even those who have made confessions are entitled to the presumption of innocence,” the opinion states.
The short ruling also dismantled another key argument the government put forth during oral arguments on Aug. 2. The government had said that the rule governing recusal only requires a judge to step aside for comments made before a judge’s appointment.
The D.C. Circuit panel had struggled with this position last week. When the judges pointed out that the government’s position contradicted the plain language of the rule, Department of Justice attorney Danielle Sue Tarin said the rule did not apply. She then redirected the panel to 28 U.S.C. § 455.
Tarin put forth two cases to support her application of the other law, but Mohammad’s attorney Nevin said during rebuttal last week that was the first he had heard of them.
The D.C. Circuit panel took note of that in its opinion Wednesday.
“At oral argument, government counsel cited two cases in support of its peculiar reading, but neither has anything to do with nor even cites Rule for Military Commissions 902, or its analogue, Rule for Court Martial 902,” the ruling states.
“In short, the government has shown this court no authority that supports reading Rule 902(b)(3) contrary to its plain terms,” it continues.
Department of Defense spokesman Maj. Ben Sakrisson said the appeals court’s decision speaks for itself.
“The U.S. Court of Appeals remanded the case to the United States Court of Military Commission Review, the matter is currently with the United States Court of Military Commission Review, and the dismissal of the charges at the trial level remains stayed pending completion of the appellate activity,” he said.
Chief Guantanamo defense counsel Gen. John Baker said in a statement, “This decision is an important victory for the rule of law as the D.C. Circuit recognized that judges must be unbiased. While I certainly am pleased to see the court take this important step, there remains much work to bring the commissions within the other hallmarks of American justice.”