In re: Khalid Shaikh Mohammad
2017 U.S. App. LEXIS 14638
| D.C. Cir. | 2017Background
- Petitioner Khalid Shaikh Mohammad, a Guantanamo detainee, is tried by military commission for planning the 9/11 attacks and sought a writ of mandamus to recuse Judge Scott L. Silliman from the CMCR proceedings.
- Petitioner identified multiple public statements (interviews, speeches, academic writing) by Silliman that allegedly show bias, including a 2010 interview calling Mohammad one of the "major conspirators in the 9/11 attacks."
- The petition sought both recusal and vacatur of a June 29, 2017 CMCR opinion that included Judge Silliman.
- The court invoked the All Writs Act as authority to consider mandamus now to protect its appellate jurisdiction over future final judgments.
- The sole dispositive legal question was whether Silliman’s prior statements required mandatory recusal under R.M.C. 902(b)(3) (expressing an opinion on the guilt or innocence of the accused).
Issues
| Issue | Petitioner’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Jurisdiction to entertain mandamus | All Writs Act authorizes mandamus to protect appellate jurisdiction now | Government did not contest jurisdiction | Court accepted All Writs Act jurisdiction to consider the petition |
| Availability of mandamus for recusal | Mandamus is appropriate because ordinary appeal would not cure actual or apparent bias | No contest to mandamus as vehicle | Mandamus is an appropriate remedy pending final judgment |
| Whether Silliman’s statements require recusal under R.M.C. 902(b)(3) | Silliman publicly called Mohammad a "major conspirator" and said what he "did," expressing opinion on guilt; mandatory disqualification follows | Statements predated judicial appointment; were based on public reporting/confession; nothing shows he cannot set aside prior views | R.M.C. 902(b)(3) plainly requires disqualification for prior expressions of opinion on guilt; recusal required and CMCR decision vacated |
| Government’s defenses to Rule 902(b)(3) application | N/A (responded to lower-court analysis) | Argues temporal limitation, public-source basis, ability to be impartial, and that statements were not personal views | Court rejected all four defenses as inconsistent with the plain text and scope of R.M.C. 902(b)(3) |
Key Cases Cited
- In re Khadr, 823 F.3d 92 (D.C. Cir.) (All Writs Act jurisdiction over military commission appeals)
- In re al-Nashiri, 791 F.3d 71 (D.C. Cir.) (mandamus available to address recusal to protect appellate jurisdiction)
- Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (U.S. 2004) (three-part mandamus test)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (U.S. 1988) (appearance-of-partiality standard and recusal principles)
- United States v. Norfleet, 53 M.J. 262 (C.A.A.F.) (discussion of Rule origins and relation to 28 U.S.C. § 455)