A federal appeals court overruled a Pentagon panel’s decision to reinstate two non-capital charges in Guantánamo’s Sept. 11 case, concluding a Duke law professor should have recused himself from hearing the case as a judge on the Court of Military Commissions Review on grounds of bias.
The seven-page decision by the U.S. Court of Appeals in the District of Columbia — granting the alleged 9/11 plotter Khalid Sheik Mohammed a rare Writ of Mandamus in a narrow issue in his death-penalty case — should not cause the cancellation of this month’s pretrial hearing at Camp Justice.
But it was another blow to the hybrid military-civilian court President George W. Bush created for Guantánamo, and President Barack Obama had reformed to permit the prosecution of Mohammed and four alleged plotters in the Sept. 11 attacks
In Wednesday’s decision, the civilian appeals panel ruled that Deputy Chief CMCR judge Scott Silliman, a Duke law professor, should have recused himself from hearing the appeal because of a series of pro-war court statements he made before he joined the court in which he declared Mohammed guilty. In June, Silliman and two military judges overruled the 9/11 trial judge, Army Col. James Pohl, and reinstated charges of attacking civilian objects and destruction of property.
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“The Government offers four reasons to resist this conclusion, none of which has merit,” the appeals panel wrote in what University of Texas law professor Steve Vladeck called “another stinging rebuke” not of the war court itself but of the higher U.S. Court of Military Commission Review, USCMCR.
In arguments before the appellate panel of three judges, an attorney for the 9/11 prosecutor said Silliman described Mohammed as guilty before he was appointed to the USCMCR and based on Mohammed’s boast soon after he got to Guantánamo from CIA custody in 2006 that he oversaw the Sept. 11 attacks “from A to Z.”
To which the panel replied that Silliman still had a duty to exclude himself from hearing a Sept. 11 case review. “Even those who have made confessions are entitled to the presumption of innocence,” the panel wrote, noting that Mohammed’s lawyers claim that “such statements were the ‘sequelae of his subjection to an extensive course of torture’ by the Central Intelligence Agency.”
Now, with Silliman recused and the decision overturned, a new three-member panel of the Pentagon’s USCMCR will need to re-decide whether Pohl was right in April to dismiss the charges. He found a five-year statute of limitations had run out on those two charges in the case against against the five alleged conspirators in the hijackings that killed nearly 3,000 people on Sept. 11, 2001.
At the Pentagon, spokesman Air Force Maj. Ben Sakrisson said: “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.”
But legal experts note there’s a rub: There may not currently be enough judges on the USCMCR who haven’t been disqualified to hear the case if the two military judges who ruled with Sillman are excluded from rehearing it. Silliman and the others decided the issue even as lawyers for Mohammed had asked the civilian appeals court to issue a stay; so now defense lawyers who work on Guantánamo appeals argue the military judges who ruled along with Silliman are contaminated, too.
A left-leaning organization of family members of people killed in the Sept. 11 attacks tweeted that the decision to disqualify Silliman was “a big step forward for the rule of law; nothing but more frustration for 9/11 families.”