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Volokh Conspiracy

Military appeals court judge must recuse himself in Khalid Sheikh Mohammed appeal, says D.C. Circuit


Recusal decisions are often quite subjective, especially when the standard is whether a judge's impartiality may reasonably be questioned. But a military rule (902(b)(3)) is quite specific, and in a way that goes beyond what most civilian rules provide; it requires recusal

Where the military judge has …, except in the performance of duties as military judge in a previous trial of the same or a related case, … expressed an opinion concerning the guilt or innocence of the accused.

In 2010, while a professor, Judge Scott L. Silliman, said in an interview,

We've got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others…. To compare Ghailani to Khalid Sheikh Mohammed, they're two totally different types of cases. And the magnitude of what they did is very different.

That, a D.C. Circuit panel just decided today, mandates recusal, because the statement expresses an opinion that Mohammed indeed "did" something. Sounds right to me, whether or not we think Silliman is actually likely to be too biased to judge the case fairly. In the court's words,

[T]he Government contends that nothing in then-professor Silliman's "statements suggest that, if he became a judge, he could not set aside his prior opinions about the attacks and related issues and judge the case based on the law and record evidence before him." Were the Court considering this case under the catchall recusal provision in Rule of Military Commissions 902(a), which requires that a "military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned," then the issue would be whether a "reasonable person, knowing the relevant facts" would perceive "an appearance of partiality."

But Rule 902(b) is a "stricter provision," specifying mandatory disqualification under its enumerated circumstances, including where a military judge has "expressed an opinion concerning the guilt or innocence of the accused." In essence, the Government argues that a reasonable person would disregard Judge Silliman's violation of Rule 902(b)(3), but the Rule itself is not so accommodating.

Note that the violation of Rule 902(b)(3) wasn't the 2010 statement, which then-professor Silliman was entirely free to make, but the 2017 decision by now-Judge Silliman not to recuse himself.

Thanks to Howard Bashman (How Appealing) for the pointer.