Lawyers for the alleged mastermind of the 9/11 attacks are asking a federal court to disqualify a Duke law professor who also serves on a Pentagon appellate panel from hearing a war court challenge.
The 232-page filing in the U.S. Court of Appeals in Washington, D.C., is the latest challenge to the U.S. Court of Military Commissions Review, a combined civilian and military Pentagon panel that reviews Guantánamo war court cases. An earlier challenge brought by lawyers in the USS Cole case prompted President Barack Obama to submit the names of military judges on the panel to Congress for approval, to shore up the constitutionality of the CMCR, as it is known.
In this instance, attorneys for Khalid Sheik Mohammed, who once bragged he ran the Sept. 11, 2001 terrorist attacks “from A to Z,” are asking the civilian appeals court to prevent CMCR Judge Scott Silliman, the Duke law professor, from hearing an appeal brought by the Pentagon’s chief prosecutor, Brig. Gen. Mark Martins.
Martins is asking the Commissions Review panel to reinstate two non-capital charges against Mohammed and four alleged conspirators in the attacks that killed nearly 3,000 people in New York, at the Pentagon and in Pennsylvania. The trial judge, Army Col. James L. Pohl, dismissed the charges of Attacking Civilian Objects and Destruction of Property on April 7. He has decided that he can hear pretrial motions in the case, even as Martins challenges those rulings. The next hearings are scheduled for July 17-21 at Guantánamo.
Mohammed’s lawyers argue Silliman is biased. In the years before he joined the court, Silliman testified at Congress as a proponent of military commissions and said he assumed Mohammed would be executed by lethal injection, according to their brief seeking a writ of mandamus, a federal court order preventing Silliman from hearing the appeal. After he joined the court, Silliman hosted Martins at Duke in a March 2013 Ethics and National Security conference.
The brief also noted that in November 2001, then law professor and retired Air Force colonel Silliman offered the opinion that the War on Terror began after the 9/11 attacks, “on or after the 7th of October” — an opinion that, if a judge ruled today, could disqualify a 9/11 conspiracy prosecution at the Guantánamo war court.
Silliman declined to recuse himself from the case in a June 6 decision. “Neither my statements nor my writings reflect any bias toward Appellee Mohammed or any of his co-defendants,” he wrote in a 15-page ruling that defending his congressional testimony, media appearances and other activities before being sworn into the CMCR on Sept. 12, 2012. He signed the ruling Acting Chief Judge. Earlier, he appointed himself and two Army judges to Martins’ appeal in an order describing his role as Deputy Chief Judge.