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D.C. Circuit Holds that 9/11 Appellate Judge Should Have Recused

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In a curt and concise seven-page decision handed down this morning (one week after argument), a three-judge D.C. Circuit panel (Rogers, Tatel, & Griffith, JJ.) unanimously concluded that Court of Military Commission Review (CMCR) Judge Scott Silliman should have recused from hearing the government’s interlocutory appeal in the Guantánamo military commission trial of the “9/11 defendants,” i.e., the five detainees charged with direct responsibility for the 9/11 attacks. In a nutshell, the per curiam opinion holds that statements Judge Silliman made in a 2010 interview suggesting that the 9/11 defendants were indeed responsible for the attacks required his recusal under Rule 902(b)(3) of the Rules for Military Commissions, which provides that “[a] military judge shall . . . disqualify himself . . . [w]here the military 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.”

As a straight-up application of settled recusal doctrine, this strikes me as a no-brainer. What’s more interesting are the broader implications of today’s ruling:

First, and most directly, today’s decision vacates the CMCR’s June 29 order that had sided with the government and reinstated two charges that the trial judge had dismissed. The CMCR will now have to re-hear the government’s interlocutory appeal before a different panel, which, among other things, will serve only to drag this process out further.

Second, there remains the question of 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, an issue currently pending before the Supreme Court in four separate cert. petitions (in which I’m counsel of record). Today’s decision likely moots, for the moment, the other pending mandamus petition in the 9/11 case (which challenged the military-officer judges on the same CMCR panel), but if the CMCR panel that re-hears the government’s interlocutory appeal includes military-officer judges, that issue will once again be ripe (and the specter of a structural error that infects the 9/11 trial will once again present itself).

Third, and perhaps most importantly, today’s decision is yet another stinging rebuke not of the military commissions themselves, but of the CMCR. I’ve written before (at some length) about the CMCR’s abysmal track record on appeal to the D.C. Circuit (including unanimous CMCR decisions that were subsequently reversed by the Court of Appeals under the heavily deferential “plain error” standard). Today’s ruling goes one step further, with the Court of Appeals issuing a writ of mandamus (under a problematic standard that basically requires the lower court to have violated “clearly established” law), in the face of a detailed ruling by the CMCR rejecting the recusal request. With the Supreme Court currently considering cert. petitions in the al-Nashiri and al-Bahlul cases, both of which raise, in different ways, the specter of leaving the significant questions presented to the military commissions in the first instance, such deference is increasingly difficult to justify.

CreditJoe Raedle/Getty Images


About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).