389 F. Supp. 3d 1001
M.C.2019Background
- Five detainees (including Hawsawi, Ali "al Baluchi," and Khalid Shaikh Mohammad) are tried together by a Guantanamo military commission; some charges are capital. Petitioners seek writs of mandamus directing military judge Col. Keith Parrella to recuse.
- Parrella was detailed in Aug 2018 after serving (~2014–2015) as an NSD (DOJ) Counterterrorism fellow; during that fellowship he worked with FBI/CIA personnel, had security clearance, and reviewed classified material but did not work on 9/11 or commission matters.
- Petitioners alleged three bases for recusal: (1) Parrella’s NSD fellowship made him effectively in the same “firm” as prosecutors; (2) a personal relationship with prosecutor Jeffrey Groharing (former Marine teammate); and (3) continuing obligations/duties to FBI/CIA creating actual or apparent bias.
- Parrella conducted extensive voir dire, denied initial and reconsidered recusal motions, and ordered ex parte classified briefings to orient himself to the case’s classified history. Petitioners filed mandamus petitions in the CMCR; the government opposed.
- The court applied R.M.C. 902, the ABA Model Code commentary, and due process standards for judicial disqualification, treating mandamus as the proper extraordinary vehicle for recusal claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Parrella’s DOJ/NSD fellowship requires recusal as an association with prosecutors | Fellowship made Parrella effectively associated with NSD prosecutors who are involved in the case, creating apparent bias | R.M.C. 902 and related law do not disqualify a judge for prior government work absent personal and substantial participation in the matter | Denied — fellowship alone does not require recusal; no personal, substantial prior participation in these prosecutions |
| Whether Parrella’s past acquaintance with prosecutor Groharing requires recusal | Longstanding personal ties and occasional contacts create an appearance of partiality | Contact was limited, remote in time, not close or ongoing, and voir dire showed no substantive discussions about the case | Denied — acquaintance was too attenuated to raise reasonable question of impartiality |
| Whether Parrella’s contacts/obligations to FBI or CIA create a “continuing duty of loyalty” requiring recusal | Parrella’s work with intelligence and duty to protect classified information bias him toward government positions | Obligations are confidentiality duties, not a loyalty that prevents impartial adjudication; no evidence of personal knowledge of disputed facts | Denied — confidentiality obligations do not create disqualifying bias absent personal involvement |
| Whether mandamus is appropriate relief for recusal claims | Mandamus necessary because ordinary appeal cannot cure bias and public confidence may be harmed | Mandamus is extraordinary; petitioners must show no other adequate means, a clear and indisputable right, and exceptional circumstances | Denied — petitioners failed to show a clear and indisputable right to recusal under mandamus standard |
Key Cases Cited
- Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) (due process violated where judge had personally approved a critical prosecutorial decision in same case)
- In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019) (vacating where military judge sought DOJ employment while presiding; DOJ involvement in commissions acknowledged)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial rulings alone generally do not establish bias)
- Preston v. United States, 923 F.2d 731 (9th Cir. 1991) (recusal required where judge had been of counsel at firm that substantially represented an interested party)
- United States v. Norwood, 854 F.3d 469 (8th Cir. 2017) (prior service as a government attorney does not automatically require recusal absent substantial personal involvement)
The petitions for writs of mandamus were denied; the court found no clear, indisputable right to recusal based on the aggregate facts presented.