In re: Khalid Mohammad
OPINION  filed PER CURIAM OPINION (Pages: 7). [17-1156]
USCA Case #17-1156
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued August 2, 2017
Decided August 9, 2017
IN RE: KHALID SHAIKH MOHAMMAD,
On Petition for a Writ of Mandamus and Prohibition to Order
Recusal of Judge Scott L. Silliman from Serving in
Petitioner’s Case in the United States Court of Military
David Z. Nevin, pro hac vice, argued the cause for
petitioner. With him on the petition for writ of mandamus and
the reply were Rita J. Radostitz and Derek A. Poteet.
Amy Brown and Samuel Rosenthal were on the brief for
amicus curiae Ethics Bureau at Yale in support of petitioner.
Danielle S. Tarin, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the opposition to
the petition for writ of mandamus was Joseph F. Palmer,
Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed PER CURIAM.
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PER CURIAM: Petitioner Khalid Shaikh Mohammad is a
detainee at Guantanamo Bay, Cuba, who is currently being
tried by military commission on charges of planning and
bringing about the attacks of September 11, 2001. He asks this
Court to issue a writ of mandamus directing that the Hon. Scott
L. Silliman of the United States Court of Military Commission
Review (CMCR) recuse himself from serving as a judge in
Petitioner’s case on the basis of public statements made by
Judge Silliman prior to and during his service on that court.
Specifically, Petitioner identifies more than a dozen
statements—from press interviews, speeches, and academic
writing—that he says indicate Judge Silliman is biased against
him. In addition, Petitioner asks us to vacate a June 29, 2017,
opinion by a panel of the CMCR that included Judge Silliman.
“The statutes governing military commissions afford this
Court jurisdiction only over ‘a final judgment rendered by a
military commission.’” In re Khadr, 823 F.3d 92, 97 n.2 (D.C.
Cir. 2016) (quoting 10 U.S.C. § 950g(a)). But, as we have
explained, “[t]he All Writs Act allows us to issue ‘all writs
necessary or appropriate in aid of [our] jurisdiction[,]’” such
that we “can issue a writ of mandamus now to protect the
exercise of our appellate jurisdiction later.” In re al-Nashiri,
791 F.3d 71, 75–76 (D.C. Cir. 2015) (quoting 28 U.S.C.
§ 1651). The Government does not contest our jurisdiction to
entertain Petitioner’s writ.
On the merits, issuance of a writ of mandamus is
appropriate only if three conditions are met:
First, the party seeking issuance of the writ must have no
other adequate means to attain the relief he desires . . . .
Second, the petitioner must satisfy the burden of showing
that his right to issuance of the writ is clear and
indisputable. Third, even if the first two prerequisites have
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been met, the issuing court, in the exercise of its discretion,
must be satisfied that the writ is appropriate under the
Cheney v. United States District Court for the District of
Columbia, 542 U.S. 367, 380–81 (2004) (citations, alterations,
and quotation marks omitted). In this case, only the second
condition—clear and indisputable entitlement to the writ—is
disputed. As to the first, whether Petitioner has “no other
adequate means to attain the relief he desires,” id. at 380, this
court has explained that mandamus is an appropriate vehicle
for seeking recusal of a judicial officer during the pendency of
a case, as “ordinary appellate review” following a final
judgment is “insufficient” to cure “the existence of actual or
apparent bias”—“[w]ith actual bias . . . because it is too
difficult to detect all of the ways that bias can influence a
proceeding” and “[w]ith apparent bias” because it “fails to
restore public confidence in the integrity of the judicial
process,” al-Nashiri, 791 F.3d at 79 (citations and quotation
marks omitted). As to the third, whether issuance of the writ
would be “appropriate under the circumstances,” Cheney, 542
U.S. at 381, the Government offers no reason, nor can we detect
one, why we should withhold issuance of the writ if Petitioner
is otherwise entitled to it.
Although Petitioner cites several bases for seeking Judge
Silliman’s recusal, resolution of this case requires discussion
of only one. Under Rule 25 of the CMCR’s Rules of Practice,
“[j]udges must disqualify themselves under circumstances set
forth in 28 U.S.C. § 455, [Rules for Military Commissions
(R.M.C.)] 902, or in accordance with Canon 3C, Code of
Conduct for United States Judges.” In denying the motion for
his recusal, Judge Silliman analyzed his statements and
conduct in light of Rule 25. Insofar as he considered Rule 902,
he focused on subsection (b)(1), which provides that “[a]
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military judge shall . . . disqualify himself . . . [w]here the
military judge has a personal bias or prejudice concerning a
party . . . .” See Silliman Dec. and Order, June 29, 2017, at 6.
We need not decide whether the judge’s comments, viewed
cumulatively, required recusal under subsection (b)(1) because
his recusal was required under subsection (b)(3), 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.” R.M.C. 902(b)(3).
As Petitioner explains, Judge Silliman has done just that:
expressed an opinion that Petitioner is guilty of the very crimes
of which he is accused. Specifically, he points to an interview
that then-professor Silliman gave to The World Today in 2010,
prior to his appointment to the CMCR. Pet. App. 148–50. In
that interview, which concerned the trial of Guantanamo Bay
detainee Ahmed Khalfan Ghailani, Silliman stated that:
“We’ve got the major conspirators in the 9/11 attacks still at
Guantanamo Bay—Khalid Sheikh Mohammed and four
others.” Id. at 149. Later in the interview, Silliman said that
“[t]o compare Ghailani to Khalid Sheikh Mohammed, they’re
two totally different types of cases. And the magnitude of what
they did is very different.” Id. (emphasis added).
Those statements represent the “express[ion] [of] an
opinion concerning the guilt or innocence” of Petitioner within
the plain meaning of Rule 902(b)(3). While the Rule contains
an exception for statements made “in the performance of duties
as military judge in a previous trial of the same or a related
case,” that has no application here, as Judge Silliman’s
statements were not made “in the performance of duties as
military judge” but before he was ever appointed to the CMCR.
R.M.C. 902(b)(3). Because the Rule prescribes that a military
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judge who has expressed such an opinion “shall . . . disqualify
himself,” R.M.C. 902(b)(3), and Judge Silliman failed to do so,
Petitioner has adequately demonstrated that his “right to
issuance of the writ is clear and indisputable.” Cheney, 542
U.S. at 381 (citation and internal quotation marks omitted).
The Government offers four reasons to resist this
conclusion, none of which has merit. First, the Government
points out that Judge Silliman made these statements prior to
his appointment as a judge. True enough, but the text of Rule
902(b)(3) contains no such limitation. Rather, by its own terms,
the only exception in the Rule is a carve-out for statements
made “in the performance of duties as military judge.” R.M.C.
902(b)(3). At oral argument, government counsel cited two
cases in support of its peculiar reading, but neither has anything
to do with nor even cites Rule for Military Commissions 902,
or its analogue, Rule for Court Martial 902. See United States
v. Bradley, 7 M.J. 332 (C.M.A. 1979); United States v. Cooper,
8 M.J. 5 (C.M.A. 1979). Government counsel also alluded to
authority for the proposition that Rule for Court Martial 902 “is
based on the statute governing disqualification of federal
civilian judges, 28 U.S.C. § 455[,]” United States v. Norfleet,
53 M.J. 262, 269 (C.A.A.F. 2000), but the text of 902(b)(3)
differs materially from section 455(b)(3), even if the former is
“based on” the latter. Id.; see 28 U.S.C. § 455(b)(3) (“He shall
also disqualify himself . . . [w]here he has served in
governmental employment and in such capacity . . . expressed
an opinion concerning the merits of the particular case in
controversy.”). In short, the Government has shown this Court
no authority that supports reading Rule 902(b)(3) contrary to
its plain terms.
Second, the Government argues that Judge Silliman’s
statements “reflect information that had been widely reported
in the public—including the fact that [P]etitioner had been
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charged for his alleged role in the attacks, admitted
responsibility for his alleged role, and expressed his intent to
plead guilty to the charges.” Government Opp’n at 11. But even
those who have made confessions are entitled to the
presumption of innocence; Petitioner claims that such
statements were the “sequelae of his subjection to an extensive
course of torture” by the Central Intelligence Agency, Pet.
Reply at 18; and—most importantly for our purposes—Rule
902(b)(3)’s text provides no room to conclude that the Rule is
unconcerned with the “express[ion] [of] an opinion concerning
the guilt or innocence of the accused” so long as that opinion
is based on public information, R.M.C. 902(b)(3).
Third, the Government contends that nothing in thenprofessor 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.” Government Opp’n at 11–12.
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,” R.M.C. 902(a)
(emphasis added), then the issue would be whether a
“reasonable person, knowing the relevant facts” would
perceive “an appearance of partiality,” Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 850 (1988)
(discussing the analogous structure of 28 U.S.C. § 455). But
Rule 902(b) is a “stricter provision,” id. at 859 n.8, specifying
circumstances, including where a military judge has “expressed
an opinion concerning the guilt or innocence of the accused,”
R.M.C. 902(b)(3). 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.
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Finally, the Government suggests that “Judge Silliman did
not express a personal view in his statements as a law professor
that [P]etitioner or his co-defendants were guilty of the charged
offenses.” Government Opp’n at 11. But the Court can hardly
perceive how calling Petitioner one of the “major conspirators
in the 9/11 attacks” and referring to what he “did” is anything
other than the expression of an opinion concerning his
responsibility for those attacks. Pet. App. at 148.
Because Petitioner has satisfied all three conditions for its
issuance, we grant the petition for a writ of mandamus recusing
Judge Silliman and vacate the June 29, 2017, decision of the
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