9/11 Case: Military Commission Convening Authority to Be Called as a Witness as to His Own Bias

W. Shane Cohen, the current judge presiding over the 9/11 case at Guantánamo Bay, has ordered the compulsion of testimony from the Office of Military Commissions’ convening authority, retired Adm. Christian Reismeier. He will be called as a witness in order to determine whether he can be disqualified from the case on the grounds that he is biased against the defense due to a longstanding relationship with the prosecution and direct prior involvement in the prosecution’s cases.

The dispute over the impartiality of the convening authority (“CA”), who is typically uninvolved in day-to-day litigation, is one of the latest of many disputes in the 9/11 case, which has been in pre-trial litigation in the military commissions since 2011. Judge Cohen is the third judge presiding and will soon decide numerous contentious issues in advance of trial, which he has set for 2021.

The CA is the authority that oversees and manages the military commission process. The CA has a number of unique powers that do not have an equivalent in civilian court. For example, he controls whether charges reach trial; he organizes the trial itself through the creation of a military commission and management of resources; he approves pretrial agreements between the prosecution and the defense; and he may review the findings of the military commission at the end of the process. A structural quirk of the system also indirectly places the CA superior to the defense within the military commission system, although certain structures attempt to protect the defense organization’s independence.

In the past, the appointment of CAs has been uncontroversial, but the past two years have marked a change. Then-Defense Secretary Jim Mattis hired former CA Harvey Rishikof in 2017 and fired him in 2018; then-acting Defense Secretary Patrick Shanahan appointed Reismeier, a retired Navy judge, in May. Less than one month later, Reismeier recused himself from two of the pending Military Commission cases: Al Nashiri and Bahlul, which concern the bombing of the USS Cole in 2000 and conspiracy/material support for al-Qaeda, respectively.

The reason for the recusal was that Reismeier had previously assisted the prosecution in its case strategies and served as amicus curiae for the prosecution before the D.C. Circuit in the case of Bahlul. Once these revelations surfaced in June, along with additional information about repeated interactions between Reismeier and Chief Prosecutor Brig. Gen. Mark Martins that spanned years, the defense teams took notice.

On July 9, one of the five 9/11 defendants, Walid bin Attash (with Khalid Sheikh Mohammad filing a supplement), moved the Commission to disqualify Reismeier as CA in the 9/11 case. The motion alleged that he had “met with, counseled, and assisted the prosecution” at various times since 2014, causing “partiality and the appearance of partiality, his inability to fulfill critical post-trial responsibilities, and his personal interest in the proceeding.”

First, the defense argued that Reismeier’s participation in the Bahlul case as amicus curiae required his disqualification in the 9/11 case as well. The amicus brief had argued that the crime of conspiracy exists under the law of war, which is directly counter to bin Attash’s position. Additionally, bin Attash’s name was mentioned in the Bahlul case repeatedly due to their alleged co-conspiratorial relationship, creating the potential for Reismeier to have already taken a position on his guilt and legal theory. Second, Reismeier’s personal relationship with Martins, the chief prosecutor, was so extensive as to bias him toward the prosecution. Reismeier allegedly consulted with Martins, sat on a moot panel to help Martins prepare for argument, mentored a member of the prosecution team, and “dined, socialized, and celebrated” with Martins’ family.

According to the defense, these activities easily fulfill the disqualification standard of “whether a reasonable person, knowing the relevant facts, would perceive an appearance of partiality” for an official in a quasi-judicial role, which does not require actual bias. Even if that standard did not apply in this case, the defense further argued that Reismeier’s conduct had shown an “inelastic attitude to the fulfillment of post-trial responsibilities” because he had already made up his mind on critical issues of the case, which would also disqualify him. Last, the defense argued that he was an impermissible “type-three accuser” under the Uniform Code of Military Justice, meaning that he had a personal rather than official interest in the prosecution.

The government filed its reply on July 30, and on Aug. 16, bin Attash filed a follow-up motion to compel Reismeier as a witness on the grounds that his testimony was necessary and relevant to Judge Cohen’s determination of his partiality, and that there was no substitute for his testimony.

The first oral arguments on the motions were held on Sept. 11, the 18th anniversary of the 9/11 attacks. The government argued that Reismeier was not subject disqualification for various reasons. In the prosecution’s view, Reismeier was not even required to recuse from the Al Nashiri and Bahlul cases but had done so in an overabundance of caution. The prosecution argued Reismeier was not an “accuser” in any of the cases because he did not have any interest other than an official interest in their prosecution, which would be the only cause for disqualification of a CA. This was the correct standard, according to the prosecution, not those advanced by the defense. Because of Reismeier’s role as executive branch official, he was not subject to the same ethical obligations as judges or those in quasi-judicial roles, the prosecution said. Under this theory, the standard was whether Reismeier was “so closely connected to the offense that a reasonable person would conclude that he has a personal interest in the matter.” Further, if either Congress or the defense secretary had disagreed with the application of this standard, they could have lowered the CA’s disqualification standard. However, the government argued, even if the CA was held to the standard of a judge, he would still not have to recuse himself because Reismeier was impartial and so committed to impartiality and fairness that he had recused himself even where he was not required to do so.

On Nov. 18, Judge Cohen ruled that bin Attash had carried his burden of proving that evidence from Reismeier was relevant and necessary to determining whether to order his disqualification. Although the date of Reismeier’s testimony has not been set, it will no doubt provoke another significant fight between the five defense teams and the prosecution because of the significance of the CA role. It will also serve as another test for Judge Cohen in advance of the 9/11 trial.

Cohen is new to the 9/11 case at a time when other Military Commission judges are facing significant challenges. This spring, the D.C. Circuit vacated three and a half years of decisions in Al Nashiri by Judge Vance Spath because he had been negotiating with the Justice Department (which handles the prosecution) for a job as an immigration judge throughout the litigation. Two formers judges in the Hadi al Iraqi case now face similar allegations, which the Court of Military Commission Review will rule on.

The identity and bias of the convening authority is critical to the defense for two main reasons. First, the CA has significant discretion in Military Commission cases. He can determine whether or not to settle a case and has the authority to review and eliminate the findings and sentences of the Military Commission. Under the previous CA, the 9/11 case appeared close to a settlement where the government would take the death penalty off the table. That does not appear possible under the current CA because he has not thus far indicated willingness to negotiate a plea deal as his predecessor did. Second, the defense must preserve as many grounds for appeal as possible. If the defendants are convicted and sentenced to death, a biased CA will certainly be among the bases of appeal to the Court of Military Commission Review or higher. Fortunately, Judge Cohen has repeatedly signaled his seriousness about moving the litigation toward trial in recognition of the fact that eighteen years have passed since the events of 9/11, while balancing the interests of all the stakeholders involved. 

About the Author(s)

M.E. Bultemeier

JD/Master in Foreign Service Candidate and Global Law Scholar at Georgetown University; Member of the Georgetown Law Journal; Executive Editor of the Georgetown Law Journal's Annual Review of Criminal Procedure; prior experience at the Office of the Legal Adviser at the Department of State, the Office of the Prosecutor at the Special Tribunal for Lebanon, the U.S. Senate, and Geneva Centre for Security Policy