[00:00:02] Speaker 00: Case number 17-1156, Enri Khalid Sheikh Mohammed Petitioner. [00:00:08] Speaker 00: Mr. Nevin for the petitioner, Ms. [00:00:09] Speaker 00: Taryn for the respondent. [00:00:12] Speaker 01: Good morning. [00:00:13] Speaker 01: We are a special panel of three judges, Judge Tatel, Judge Griffith, and myself. [00:00:20] Speaker 01: Judge Griffith is unable to be with us. [00:00:22] Speaker 01: He will listen to the transcript. [00:00:26] Speaker 01: tape of the oral argument. [00:00:28] Speaker 01: All three of us have read the pleadings and determined that it would be appropriate for us to have an oral argument. [00:00:36] Speaker 01: So we're here today. [00:00:41] Speaker 04: Judge Rogers, Judge Tatel, may it please the court. [00:00:45] Speaker 04: I'm David Nevin, here on behalf of Mr. Muhammad. [00:00:50] Speaker 04: And I thought that I would begin with the court's order yesterday, directing that we discuss one particular aspect of Rule 902, 902B3, and also Judge Silliman's remarks at The World Today. [00:01:07] Speaker 04: And it will just say two things about it. [00:01:12] Speaker 04: First, as you all understand, from my point of view, he clearly is within rule 902B3 as a result of those remarks, because he says that we have the ringleaders of the 9-11 attacks at Guantanamo. [00:01:27] Speaker 04: He's referring to Mr. Muhammad. [00:01:29] Speaker 04: If there were any question about that, he goes on to say, [00:01:32] Speaker 04: a little later, comparing Mr. Mohamed to Mr. Gailani, another case that's, I think was pending at that time, I believe, in the Southern District. [00:01:44] Speaker 04: He said that what they did, those two, what they did is very different. [00:01:49] Speaker 04: And it seems to me, just taken on its face, that that is expressing an opinion about the guilt of the accused, and it comes within 902B3. [00:02:00] Speaker 02: What about the government's argument that, well, the judge was a professor of law at the time and he was simply reflecting publicly available facts and any reasonable person would understand that he could now behave objectively, judge objectively? [00:02:20] Speaker 04: Right, and we were talking among ourselves about RIPPO, the United States Supreme Court opinion from earlier this summer, sorry, earlier this spring, that is, yes, it's a due process case, but it says that what the court spoke of was the risk of bias being too high to be constitutionally tolerable. [00:02:43] Speaker 04: I don't mean to say that I think what you're proposing, Judge Taylor, would be... I wasn't proposing anything. [00:02:51] Speaker 02: Yes, sir, I'm sorry. [00:02:51] Speaker 02: I'm just asking you a question. [00:02:52] Speaker 04: That's a question, right. [00:02:53] Speaker 04: I think when you look at it on his face, you have to say words have meanings. [00:03:00] Speaker 04: And the words that then Professor Silliman chose have to be taken as having meaning. [00:03:08] Speaker 04: He's a sophisticated man, no question about that. [00:03:11] Speaker 04: intelligent and schooled and well-spoken, no doubt about any of that. [00:03:14] Speaker 04: And I think his words have to be taken at face value. [00:03:19] Speaker 04: And I guess to the extent, and I apologize for characterizing it as a suggestion, but to the extent that one were to argue that it didn't have those actual meaning, [00:03:30] Speaker 04: the meanings that are clear on the face in my view. [00:03:34] Speaker 04: If you circle back to the idea of the court standing and looking at this and saying, is the risk intolerable? [00:03:44] Speaker 04: And when the person uses this actual language, it seems to me that there is a high risk that he meant what he said and that he should be held to account for the actual words that were used. [00:04:01] Speaker 04: So I also recognize that the implication of [00:04:07] Speaker 04: the court's order yesterday might be to say, should the court or would it be appropriate to decide this case just on that narrow issue on the violation of 902b3? [00:04:23] Speaker 04: And I say it because I am mindful that we have argued throughout that the court needs to look at the totality of the circumstances. [00:04:32] Speaker 04: And I think that there are other statements that contribute to the mix. [00:04:39] Speaker 04: And it would be. [00:04:40] Speaker 01: Well, let me just stick with today's statement for a moment. [00:04:45] Speaker 01: I assume the government may argue that if you read the totality of that statement directly after the first statement about we have conspirators, [00:05:01] Speaker 01: The professor refers to the fact that the administration has to decide whether to bring this before a military commission or into an Article III court. [00:05:18] Speaker 01: Arguably, read in that context, the statement is made in the context of acknowledging that a trial has to occur. [00:05:33] Speaker 04: Yes, but it would be a trial where the defendant, including Mr. Muhammad, would be presumed innocent. [00:05:40] Speaker 04: And I would think that if you were, as then Professor Silliman was, a sophisticated commentator on the legal scene, that you would have been careful to make that [00:05:51] Speaker 04: distinction, that the charges were only alleged, that you would not have spoken that way if that was not reflecting a judgment that you had made internally. [00:06:05] Speaker 01: So do we distinguish, you know, then Justice Rehnquist's opinion in terms of [00:06:20] Speaker 01: At the time, the judge was a professor of law and had no client as such, such that he could divorce himself from his own academic remarks. [00:06:39] Speaker 01: I'm just trying to fit that in with the notion that, as the government argues, you take an oath as a judge and it's not that you wipe your mind clean of everything you ever knew, but you come to the cases with an open mind to decide them on the basis of the evidence and the arguments that are presented, not something you've done beforehand. [00:07:06] Speaker 04: Well, there are a number of cases, including Williams v. Pennsylvania, for example, where the judge had taken the oath to be an appellate judge after the events in question, which had occurred 30 years previous. [00:07:25] Speaker 04: And the court said no. [00:07:26] Speaker 04: And I recognize it's a different factual context. [00:07:29] Speaker 04: But it seems to me that if [00:07:32] Speaker 04: The rule were that simply by taking an oath, you reset all of your prior opinions and comments and remarks, and there would never be, well, there would have been many fewer recusals of judges for remarks or actions taken previously. [00:07:54] Speaker 02: Well, what is the answer to the question you asked yourself there? [00:07:58] Speaker 02: Do you think that this rule by itself requires the recusal of the judge? [00:08:05] Speaker 02: I do, Your Honor. [00:08:11] Speaker 02: I have a procedural question. [00:08:16] Speaker 02: Judge Silliman [00:08:17] Speaker 02: rejected your petition's recusal motion. [00:08:26] Speaker 02: Does the military have any procedure to remove a judge it thinks is violated, has said things that are inconsistent with these rules? [00:08:37] Speaker 02: In other words, could it have removed the judge itself? [00:08:42] Speaker 04: I don't know the answer to that question, Your Honor. [00:08:44] Speaker 04: I'm sorry. [00:08:46] Speaker 04: I know it by the time rebuttal. [00:08:52] Speaker 04: I'm sorry. [00:08:55] Speaker 01: Did you want to make another point? [00:08:58] Speaker 01: Well, when you were talking about the implication of the court's order, I thought you were about to go beyond just [00:09:06] Speaker 01: the rule itself. [00:09:07] Speaker 04: Thank you, Your Honor. [00:09:08] Speaker 04: And I was, and I can do it simply. [00:09:11] Speaker 04: It was just to say that our argument has been pointed not only at statements that Judge Silliman has made, but also actions. [00:09:20] Speaker 04: Because we know that, as we argued in our materials after some 10 years, I think actually it's 11 years of serving as a commentator, and really I think you can say fairly touting military commissions [00:09:35] Speaker 04: as a purpose-built forum for prosecuting, really sometimes literally by name, Mr. Muhammad. [00:09:44] Speaker 04: Judge Shulman becomes a judge on the Court of Military Commission's review and assigns himself to Mr. Muhammad's case. [00:09:51] Speaker 04: And at this time, he fails to... Why does that make a difference? [00:09:55] Speaker 04: Well, I don't think it would make a difference, but for everything else that has happened in the case. [00:10:01] Speaker 02: Because I'm looking again at- Just by the way, doesn't the government argue, and it's brief, that you didn't make that argument before Judge Silliman? [00:10:11] Speaker 04: I believe we, in reply, we indicated that we had made that- Okay, but setting that aside, what difference does that make? [00:10:23] Speaker 02: Suppose his statement weren't quite as clear as it is. [00:10:31] Speaker 02: Would it make it worse that he had assigned himself to the case? [00:10:35] Speaker 04: Why is that? [00:10:37] Speaker 04: I think it is because we're asking you to look at the totality of the circumstances. [00:10:44] Speaker 04: And this was what I saw in the implication of the order yesterday, that perhaps you [00:10:49] Speaker 04: saw that question differently, but we had asked you to look at the totality of the circumstances and what was innocuous in one case, in another case might have meaning. [00:10:59] Speaker 02: And I think here when you combine all the- See, remember, sorry to interrupt, but remember, your ability to get relief here, it requires it to be clear and indisputable. [00:11:08] Speaker 02: Yes. [00:11:08] Speaker 02: Your right to it. [00:11:09] Speaker 02: Clear and indisputable. [00:11:10] Speaker 02: Right. [00:11:11] Speaker 02: The way you're arguing now sounds a little less clear and indisputable. [00:11:19] Speaker 04: It doesn't grab me as... I don't want to convey that impression. [00:11:25] Speaker 04: As a person who does some technical rock climbing from time to time, sometimes you put in more than one [00:11:36] Speaker 04: type of protection because you know that if you fall you want to be sure that you're not going to go all the way to the ground and similarly I don't want to walk by any basis or grounds upon which this court might decide that that our petition should be granted but I think whether you look at and as I said I think 902b3 by itself requires recusal but whether you look at it [00:12:01] Speaker 04: alone or in combination with other remarks that we refer to, such as the remarks about the method of execution and testimony on the matters that are involved in this appeal before the Senate. [00:12:20] Speaker 04: Whether you look at them individually or cumulatively, I believe it is clear and indisputable. [00:12:24] Speaker 04: I think that it's clear [00:12:26] Speaker 04: and indisputable that mandamus is an appropriate vehicle for addressing these issues, bias of a judge, and that this is a situation where recusal is required. [00:12:47] Speaker 04: So I just want to draw the Court's attention not only to [00:12:51] Speaker 04: of the case, but his failure to disclose this background to the parties. [00:13:00] Speaker 04: And I have been in front of many judges over the years who have begun the proceedings by telling the parties that [00:13:07] Speaker 04: some remote connection the judge has to the case and just as a matter of full disclosure and an excess of caution. [00:13:14] Speaker 04: And I would have expected that something like that would have happened here. [00:13:18] Speaker 01: Well, but I guess the implication of my colleague's observation, it seems to me, is we're looking at a petition for mandamus. [00:13:28] Speaker 01: Yes. [00:13:29] Speaker 01: And the totality argument sounds very much like a professor who deals in matters of [00:13:36] Speaker 01: national security and discusses it, writes about it, gives interviews about it, could never sit on a military commission. [00:13:52] Speaker 04: And maybe perhaps in our response to the government citation of Laird v. Tatum when we spoke to this, I by no means am here to say that if [00:14:04] Speaker 04: If a person prior to going on the bench has expressed an opinion somewhere, then they can't. [00:14:08] Speaker 04: This is the tabula rasa, and no one claims that, that you have to be a tabula rasa. [00:14:15] Speaker 04: But you have to deal with each situation as it arises in context. [00:14:20] Speaker 04: And I think it is fair to do that with Judge Silliman's comments. [00:14:24] Speaker 01: So you would have expected the judge to have said something along the lines of, I've been a professor of law for a number of years, I've been focused on the area of national security, I've written law review articles that are publicly available, I've given media interviews, when all this is a matter of public record for anyone who wants to find out about the judge. [00:14:46] Speaker 04: Well, I don't know that that's true, Your Honor. [00:14:48] Speaker 04: One of the things I was going to say was that the vice of not revealing this to the parties comprehensively is that we still don't know [00:14:56] Speaker 04: everything that all of the comments that Judge Silliman may have made. [00:15:00] Speaker 04: And I think there are a number of other, maybe on the order of 15 or 20, comments that have been made in the public media that are not included in our papers because they've... Well, we can't rely on any of those. [00:15:17] Speaker 02: We don't know what they are. [00:15:18] Speaker 04: Yes, no, I understand, but I don't know that we have our finger on everything. [00:15:25] Speaker 04: And I just think, take the remark about Mr. Mohammed being guilty, the one that the court cited in his order yesterday. [00:15:37] Speaker 04: I think it would have been appropriate to have said, the party should at least know that I have expressed opinions about Mr. Mohammed's case in the past. [00:15:46] Speaker 04: And I direct you to this case and these remarks for whatever action you may wish to take. [00:15:54] Speaker 04: And Judge Zillman did not do that. [00:15:57] Speaker 02: Wait, wait. [00:15:59] Speaker 02: What would be the consequences of him doing that? [00:16:01] Speaker 02: Then you could move to recuse him? [00:16:03] Speaker 02: Yes, sir. [00:16:04] Speaker 02: You did move to recuse him. [00:16:05] Speaker 04: Yes, sir. [00:16:06] Speaker 04: We did. [00:16:07] Speaker 04: I'm pointing you just to the fact of nondisclosure. [00:16:14] Speaker 04: And I'm saying that that is an action, like the action of the court to enter a judgment after this court had indicated an interest in the recusal argument and a desire to hear it out and deal with it, then getting an opinion out and claiming that that cut off this court's ability to act. [00:16:40] Speaker 04: I think when you, and really I have to emphasize this is all taking place in a capital case as well, in which the Supreme Court has mandated that there be a high degree of reliability in the processes that the court follows to arrive at a guilty judgment and a death sentence. [00:17:01] Speaker 04: And I simply say that when you look at these actions together, [00:17:06] Speaker 04: In addition to the statements, they carry the implication that there is a risk of bias that's too high to be constitutionally tolerable, to put it in the terms that the Supreme Court articulated. [00:17:17] Speaker 01: All right. [00:17:20] Speaker 01: Why don't you save the rest of your time? [00:17:22] Speaker 01: Done. [00:17:22] Speaker 04: Thank you. [00:17:25] Speaker 01: Council for Respondent. [00:17:30] Speaker 00: May it please the court. [00:17:31] Speaker 00: This question denied the petition for rid of mandamus and prohibition because it is not clear and indisputable that a judge may be disqualified on the basis of statements that he made before becoming a judge discussing his understanding of the current state of the law as is relevant to his area of expertise or [00:17:48] Speaker 00: repeating information that was widely reported in the press about a highly publicized event or after becoming a judge making a single statement endorsing another person's compliment of an attorney. [00:17:59] Speaker 00: Although petitioner has made allegations about military issues. [00:18:01] Speaker 02: Could you, I'm sorry to interrupt you, but could you just focus on [00:18:07] Speaker 02: 9023B and the statement we asked you. [00:18:10] Speaker 02: I mean, I agree with you about the opinions of the law. [00:18:12] Speaker 02: I agree with you about all of that. [00:18:15] Speaker 02: Why don't you just focus on this and tell us why, given the clarity of this rule and his statement in World Today, why it isn't clear and indisputable that he's violated this rule. [00:18:30] Speaker 00: Rule of Military Commission 902B3 does not apply here because we know this problem. [00:18:37] Speaker 00: the fact that the rule for military commissions 902b3 is based on the rule for court martial 902b3 and in that rule for court martial there's an analysis which explains how we interpret that rule and the analysis explains that [00:18:51] Speaker 00: This rule for military commissions and court-martial was based on the federal disqualification statute, 28 U.S.C. [00:18:58] Speaker 00: section 455B3, which provides that a judge may or must disqualify himself in instances where, as a government employee in that capacity, he has made opinions on the merits of the case. [00:19:11] Speaker 01: Or the appearance of partiality. [00:19:13] Speaker 00: And in interpreting that rule, [00:19:15] Speaker 00: The Court of Military Appeals, which was the predecessor to the U.S. [00:19:19] Speaker 00: Court of Appeals for the Armed Forces, explained that this rule is limited to those statements that a judge makes in his capacity as a judge. [00:19:28] Speaker 00: And what are those cases? [00:19:29] Speaker 00: United States v. Bradley, 7, MJ, 332. [00:19:33] Speaker 00: Court of Military Appeals, 1979. [00:19:36] Speaker 00: And the United States versus Cooper, 8, MJ, 5, Court of Military Appeals, 1979, they're both cited in the analysis in the Manual for Courts Marshall on how courts should interpret this rule. [00:19:48] Speaker 00: And so that rule does not apply here, but even if it did, [00:19:53] Speaker 00: Professor Silliman, in his capacity as a professor, wasn't expressing an opinion on the guilt or innocence of the petitioner. [00:20:00] Speaker 00: The court raises the question of the 2010 article in The World Today, and in that article was about the recent conviction of Ahmed Gailani, who had been a Guantanamo Bay detainee and was convicted of a single terrorism offense related to the 1998 embassy bombings. [00:20:15] Speaker 00: in a federal district court, and the question that the reporter was asking, well, what did this mean? [00:20:20] Speaker 00: Did the Obama administration then signal that this meant that it would try more Guantanamo Bay detainees by a federal district court rather than a military commission? [00:20:29] Speaker 00: And being asked this question, Judge Snellman, as a professor, was expressing his opinion that, no, this wasn't necessarily the case because the petitioner [00:20:39] Speaker 00: and his co-accused were still in Guantanamo Bay and no decision had been made about where they would be tried, knowing that there was still room for trial. [00:20:46] Speaker 02: But the sentence says, and this is all based on the assumption that this rule applies, you're right, [00:20:51] Speaker 02: He says, we have the major conspirators still at Guantanamo, Khalid Sheikh Mohammed and four others. [00:20:58] Speaker 02: He says Khalid Sheikh Mohammed is a major conspirator. [00:21:02] Speaker 02: And then he goes on and says, when he's comparing them to Kalani, he says the magnitude of what they did is different. [00:21:11] Speaker 02: So he's clearly saying that [00:21:13] Speaker 02: Khalid Sheikh Mohammed is guilty of the charges. [00:21:17] Speaker 00: We must view the comments in their context and through the lens of a reasonable observer who understands all of the relevant facts and who has examined them on the record. [00:21:25] Speaker 00: And the record at that time demonstrated that in 2007, Petitioner had stated in his combatant status review tribunal quote, I was responsible for the 9-11 attacks from A to Z. That was the statement that was published on the front page of the New York Times. [00:21:38] Speaker 02: If you're viewing this 902b3 through the gloss of the cases you cite, then you have a point if that's what those cases say. [00:21:50] Speaker 02: But the language of the rule itself would not permit such an interpretation, right? [00:21:56] Speaker 02: It doesn't say anything about [00:21:58] Speaker 02: when the statement was made or what the surrounding circumstances is. [00:22:02] Speaker 02: It's a command to recuse if the judge expressed a view about the guilt or innocence. [00:22:08] Speaker 00: Well, military courts have said that we would even look at this rule through the lens of an objective and reasonable standard lens. [00:22:15] Speaker 00: So even looking at that, it is important that the court look at the context and all of the record. [00:22:20] Speaker 00: And the record not only demonstrated that he made this statement in his combatant status review tribunal in 2007, but he followed that up [00:22:26] Speaker 00: in his military commission trial in 2008 and 2009 with the Pellet Exhibit D89, in which he announced to the military commission that he wanted to confess to the charges and plead guilty in full. [00:22:37] Speaker 00: He followed that up with another statement in a pleading in a Pellet Exhibit D101, all available on the military commission's website, that, quote, the accusations against us aren't accusations, but rather badges on it. [00:22:48] Speaker 00: Well, what do you do about his allegations of torture? [00:22:52] Speaker 00: Excuse me? [00:22:54] Speaker 00: In his statement, in his combatant status review tribunal statement, he said that he was making the statement freely and voluntarily, and not as a result of coercion or any post-capture treatment. [00:23:04] Speaker 00: But isn't that yet to be determined? [00:23:06] Speaker 00: He himself said it. [00:23:07] Speaker 00: And so it having been reported. [00:23:09] Speaker 01: I guess you, maybe I'm not clear in the implication of my question. [00:23:14] Speaker 01: If he was tortured and then says, I want to plead, and then [00:23:22] Speaker 01: explains that's what my captors wanted me to say. [00:23:25] Speaker 01: Isn't that a slightly different situation than the one-year positing of a free and voluntary [00:23:33] Speaker 00: No, that would be later for a determination by a court to make. [00:23:39] Speaker 00: But when Professor Sillman was repeating these statements, he was doing it in his capacity as a professor, just reflecting his understanding of the case as it existed at that time, as it was commonly known. [00:23:51] Speaker 01: So as I understand it, your position would be that even if we read [00:23:59] Speaker 01: his statement in world today to be an expression that he thought this petitioner was guilty. [00:24:12] Speaker 01: That would not come within the rule at all. [00:24:19] Speaker 01: would not come within 28 USC 455. [00:24:22] Speaker 00: If you conclude that it's cleared indisputable that he has, in fact, announced his opinion and conclusion that the petitioner is, in fact, guilty as a legal matter, then some courts have said that that is something that the court could conclude that it would disqualify Judge Sillman. [00:24:40] Speaker 00: But that's not what he said. [00:24:41] Speaker 00: He wasn't making a conclusion or writing a conclusion about the guilt or innocence of the petitioner. [00:24:48] Speaker 00: He was just explaining his current understanding of the case of the law as it had been reported in the press. [00:24:54] Speaker 00: So given all the statements the petitioner made, it came as no surprise that in a 2009 article, some of which petitioner includes in his appendix at page A145, the reporter himself [00:25:07] Speaker 00: referring to the petitioners, calls him the self-proclaimed 9-11 mastermind, because that's how he was commonly known. [00:25:13] Speaker 00: And so Professor Sullivan, in his capacity as a professor, was merely just repeating those statements, and was talking about the case in the context of the Gailani case, and whether that meant that the Obama administration was making a policy shift. [00:25:28] Speaker 00: But it wasn't about whether the petitioner was, in fact, guilty or innocent. [00:25:32] Speaker 00: Compare that, then, with the case of Jones versus Tramell. [00:25:35] Speaker 00: And that's the single case that petitioner cites that involves statements that a judge made before coming to the bench. [00:25:42] Speaker 00: And there, Judge Jerome Holmes, in his prior capacity as the Deputy Criminal Chief of the US Attorney's Office, said about the defendant in a case in which he later participated in Haiti's review. [00:25:55] Speaker 00: He said, the evidence was more than enough for the jury to conclude that he should be convicted of murder, and quote, that he deserved to die for his acts, end quote. [00:26:05] Speaker 00: And even then, the court wasn't willing to say that disqualification under de novo standard review was required, but only that it might lead to the appearance of impropriety. [00:26:16] Speaker 00: And so one, courts look at statements that a professor made differently. [00:26:19] Speaker 00: And two, in that statement where he was ultimately disqualified from further participation in the case, that statement [00:26:27] Speaker 00: is what it would take for a judge to be disqualified under discretionary review for statements that he made. [00:26:34] Speaker 01: So let me be clear, the two cases that you have cited us at 7MJ and 8MJ, those are cases that are saying we should apply the standard of Section 455? [00:26:48] Speaker 01: in interpreting this rule? [00:26:50] Speaker 00: But it's, those cases say that when interpreting that rule, you look at the statements that a judge made in his capacity as a judge. [00:27:00] Speaker 00: Applying section 455. [00:27:02] Speaker 00: Applying rule for court-martial 902-B3. [00:27:06] Speaker 00: But it to be- Well, you do what? [00:27:10] Speaker 02: You- Yeah. [00:27:12] Speaker 02: But those- In other words, under those, it only applies to statements [00:27:18] Speaker 02: The rule says that a military judge ought to qualify himself, except in the performance of duty as a military judge. [00:27:27] Speaker 00: Yes. [00:27:28] Speaker 02: In the same or similar case, except. [00:27:31] Speaker 00: Yes, that's what it says. [00:27:32] Speaker 00: In the analysis, though, the analysis explains that this statute or the rule is based on 28 U.S.C. [00:27:40] Speaker 00: section 455b3. [00:27:42] Speaker 00: And that section says that a judge may be disqualified on the basis of statements he made in his government capacity and in that capacity made comments about an opinion [00:27:53] Speaker 00: regarding the guilt or innocence. [00:27:55] Speaker 01: So do those cases say it doesn't matter what the judge said about the guilt or innocence of the person standing before him? [00:28:05] Speaker 01: Before he became a judge, they say that he may still preside [00:28:12] Speaker 00: as an adjudicator in that case? [00:28:15] Speaker 00: No, they look at all of the cases that cite this rule for court martial matter to be three upon which the rule for military commission is based deal only with cases in which a judge has made a statement as a judge. [00:28:30] Speaker 01: I understand you said that twice. [00:28:31] Speaker 01: Now what I'm asking you is do those cases, which I will read, say that as far as the military is concerned, [00:28:41] Speaker 01: its own rule 902b3 doesn't matter. [00:28:47] Speaker 01: Whatever the judge said before he became a judge as to the guilt or innocent of the party before him is not a basis for removing that judge from the case. [00:29:03] Speaker 00: No, it just applies the rule in the context of statements that a judge made. [00:29:08] Speaker 01: So it's an open question before the military courts? [00:29:13] Speaker 00: And if it is, then that is another reason why this case is inappropriate. [00:29:16] Speaker 00: That's a question. [00:29:18] Speaker 01: Is it an open question? [00:29:22] Speaker 01: In other words, have you and your research found any case by a military court of appeals saying that, essentially, it's irrelevant? [00:29:33] Speaker 01: what a judge may have said before he or she became a judge. [00:29:37] Speaker 00: No. [00:29:38] Speaker 00: And if the court concludes that it is an open question as a result, then that's another basis upon which this court should not grant mandamus review because it would not be clear and indisputable that a judge may be disqualified under that rule based on statements he made before becoming a judge. [00:29:53] Speaker 01: So you're asking us to read 902B3 in a particular manner [00:30:02] Speaker 01: that the military courts have never decided. [00:30:07] Speaker 00: Or I'm asking the court to read it in a way that's consistent with the manner in which military courts have read it. [00:30:13] Speaker 00: But you've acknowledged this issue has never been decided. [00:30:16] Speaker 00: And if it hasn't, then the court should not grant mandamus review on that basis because it would be inappropriate where the guidance is unclear. [00:30:25] Speaker 01: So as a non-military court, [00:30:29] Speaker 01: We must ignore the plain language of the rule until the military court of appeals tells us what it means in a context it has not previously addressed. [00:30:43] Speaker 00: No, but the court should take into account how it has been applied by the military courts up until this point. [00:30:48] Speaker 01: We're going around in circles because we're just trying to understand clearly what the government's position is. [00:30:56] Speaker 01: And I understand your argument the rule is inapplicable. [00:30:59] Speaker 01: but you have acknowledged that the military courts have never spoken to the context before this court. [00:31:06] Speaker 01: That's correct. [00:31:07] Speaker 02: All right. [00:31:09] Speaker 02: I just have two questions about the rule. [00:31:12] Speaker 02: So you say this rule only applies to, only would require recusal for statements made while he's a judge, right? [00:31:26] Speaker 02: This rule, yes. [00:31:27] Speaker 02: But the rule says he hasn't expressed an opinion concerning the guilt or innocence. [00:31:34] Speaker 02: It says he shall disqualify himself as a military judge in a previous trial. [00:31:42] Speaker 02: It seems to accept statements made while he was a judge. [00:31:47] Speaker 00: I understand that, that the military courts have applied it, for example, in a case where... No, no, but could you just explain to me how could you... [00:31:57] Speaker 02: How could you interpret a rule that includes an exception for statements made while judge to mean it only applies to statements made by a judge? [00:32:08] Speaker 00: Because it was based on 28 U.S.C. [00:32:10] Speaker 00: section 455b3, which includes this limiting language about how the statements were made in the capacity of the judge when he was a government employee. [00:32:19] Speaker 00: But even if the court [00:32:21] Speaker 00: concludes that this rule applies. [00:32:23] Speaker 00: It still would not lead to the disqualification of Judge Salomon because his statements cannot be fairly raised as ones in which he was announcing the guilt or innocence of the petitioner. [00:32:34] Speaker 02: And that's because he's in the context of a different case? [00:32:38] Speaker 02: Is that why? [00:32:38] Speaker 00: That's because he wasn't talking about the legal guilt or innocence of the petitioner, but rather was just making a comment about whether it was true that the Gauleini conviction, and since he was a Guantanamo Bay detainee, indicated that the Obama administration intended to try [00:32:55] Speaker 00: additional Guantanamo Bay detainees by federal district court rather than military commission to the extent that he was referring to petitioner's case. [00:33:02] Speaker 00: It was within that context and it was just speaking about the case in a way that had been commonly known up until that point. [00:33:09] Speaker 02: So under your interpretation of this rule, suppose the statement in the world today, those that had none of this ambiguity, suppose he had simply said, College Chief Muhammad is guilty of all charges against him while he was a professor. [00:33:27] Speaker 02: This rule still would not require his recusal, right? [00:33:29] Speaker 02: Because those were not said in the capacity of the judge. [00:33:32] Speaker 00: Right, but if the court concludes that it does apply to even statements that [00:33:37] Speaker 00: a judge made before he became a judge, then a statement like that may lead to his disqualification. [00:33:45] Speaker 02: Okay. [00:33:46] Speaker 02: I want to ask you the same question I asked Mr. Madden. [00:33:48] Speaker 01: So can I just be very clear on your response to Judge Tatel's question? [00:33:54] Speaker 00: If it is true that, and if the court interprets the rule as one, applying to statements that a judge made even before becoming a judge, and Professor Solomon made a comment that petitioner is in fact guilty of these offenses and should be sentenced to death, then that is something that would be a basis for disqualification. [00:34:15] Speaker 01: And going back to a question that Judge Tatel asked Petitioner's Council, is there any procedure in the military scheme for removing a judge? [00:34:26] Speaker 00: I don't believe so, but U.S. [00:34:28] Speaker 00: CMCR Rule of Practice 25 provides that as far as a disqualification motion goes, that decision is made solely by a judge and would be within his discretion. [00:34:41] Speaker 02: So in other words, the reason I ask the question is – I ask the question for this reason. [00:34:50] Speaker 02: Your argument – the government's argument here is that this is – is that it's not clear and indisputable. [00:34:56] Speaker 02: That's your argument. [00:34:57] Speaker 02: But if Mr. Mohammed is convicted and he raises this issue in an appeal of his conviction, [00:35:07] Speaker 02: the court will not be limited by the clear and indisputable standard, right? [00:35:12] Speaker 02: Right. [00:35:13] Speaker 02: And the reason I'm asking that is, in other words, this could jeopardize the conviction on appeal. [00:35:21] Speaker 02: And I'm wondering why the government, and the government obviously has an interest in convicting and defending that conviction on appeal. [00:35:31] Speaker 02: Why would the government put itself in a position where it's allowing a vulnerable issue in a case to remain? [00:35:39] Speaker 02: Why is it doing that? [00:35:40] Speaker 00: The government also has an interest in ensuring that [00:35:44] Speaker 00: the court would not adopt a rule that the petitioner is advocating because that would expose the judiciary to disqualification motions if not compelled disqualification even under perhaps a de novo standard of review on the basis that statements that a judge made [00:36:00] Speaker 00: an issue here where he was in his prior capacity as a professor simply discussing his understanding of the current state of the law in an area that was specific to his expertise or repeating information that he had learned about the case from press accounts and was just expressing his familiarity with the case and speaking about it in terms of as it were commonly understood. [00:36:20] Speaker 00: And Petitioner offers no limiting principle for how far back. [00:36:25] Speaker 02: I'm asking you a very different question. [00:36:27] Speaker 02: My question is, [00:36:29] Speaker 02: doesn't, doesn't the military, the military obviously has an interest in ensuring the credibility of the commissions, right? [00:36:35] Speaker 02: Yes. [00:36:36] Speaker 02: And obviously that includes ensuring that the judges on it are unbiased and objective, right? [00:36:40] Speaker 02: Yes. [00:36:42] Speaker 02: But you're telling me the commission has no, the military has no way for ensuring that, right? [00:36:47] Speaker 02: The military judge? [00:36:50] Speaker 02: Having been appointed to the court and confirmed, there's nothing the military can do about a judge who, and I'm not saying this judge did that, about a judge who, prior to getting there, had expressed clear views about whether or not a defendant before him is guilty. [00:37:07] Speaker 00: Well, I'm not sure whether the government's position would be on that. [00:37:11] Speaker 02: No, I wasn't asking you. [00:37:12] Speaker 02: I was asking you, you're telling me there's no way the government could do anything, even if it worried about it, right? [00:37:17] Speaker 02: That there's no way to remove a judge from the panel. [00:37:20] Speaker 00: I understand that he could be removed for good cause, or he could resign. [00:37:24] Speaker 02: No, no, no. [00:37:25] Speaker 02: I know he could resign. [00:37:26] Speaker 02: So he could be removed for good cause? [00:37:28] Speaker 02: Yes. [00:37:28] Speaker 02: Who could do that? [00:37:33] Speaker 00: Suppose the president. [00:37:41] Speaker 00: But in any event, [00:37:43] Speaker 00: This wouldn't jeopardize the integrity of the military commission system because do you mean removal in the sense of impeachment? [00:37:51] Speaker 01: Yes. [00:37:52] Speaker 01: So if you remove from sitting on any case, that's correct. [00:37:56] Speaker 01: No longer be a judge. [00:37:57] Speaker 01: That's correct. [00:37:58] Speaker 01: But we're talking this case and interim standards. [00:38:01] Speaker 00: I understand those are the circumstances under which he was extreme. [00:38:05] Speaker 01: Either the judge decides or the president has to remove. [00:38:09] Speaker 00: That's my current understanding. [00:38:11] Speaker 02: So I understand completely what you think the proper interpretation of this rule is. [00:38:16] Speaker 02: It is that [00:38:18] Speaker 02: Number one, it applies only to judges whose statements occur while they're a judge, right? [00:38:26] Speaker 02: Yes. [00:38:26] Speaker 02: And number two, and I want to ask you if this is right, even with respect to those judgments, those statements, we, the court has to apply, you know, the objective observer standard, right? [00:38:39] Speaker 02: Yes. [00:38:39] Speaker 02: In other words, would, even though he said the defendant was guilty, the question still has to be asked, would a reasonable person, knowing all the facts, [00:38:46] Speaker 00: Right? [00:38:47] Speaker 00: Yes. [00:38:48] Speaker 02: Both of those? [00:38:49] Speaker 00: Yes. [00:38:50] Speaker 02: So then there's no difference between 902B3 and the rest of the rule. [00:38:56] Speaker 02: 902B3 is just totally superfluous, right? [00:39:01] Speaker 02: Well, it's designed to... It adds nothing to 455 or 902A, correct? [00:39:08] Speaker 00: I think it's designed to address the specific situation in which the courts have applied it. [00:39:12] Speaker 00: For example, in Bradley, where the defendant had pleaded guilty, he had provided a factual basis for his guilty plea in detail, and then the judge concluded on the basis of that factual averment that the defendant was in fact guilty. [00:39:33] Speaker 00: He later [00:39:34] Speaker 00: moved to withdraw his guilty plea and the district court, the judge, allowed him to do so. [00:39:40] Speaker 00: And then the judge [00:39:43] Speaker 00: was unable to later sit as the trier of fact in his trial. [00:39:48] Speaker 00: So the way that the courts have interpreted it is to apply to that situation because the judge has now obtained detailed factual knowledge that he wouldn't have obtained otherwise about the background and the basis for the conviction that now he should no longer be permitted to serve as the sole trier of fact. [00:40:13] Speaker 02: Anything else for you? [00:40:14] Speaker 01: No. [00:40:15] Speaker 01: Anything further? [00:40:16] Speaker 01: No. [00:40:16] Speaker 01: Thank you. [00:40:17] Speaker 01: Thank you. [00:40:19] Speaker 01: Council for Petitioner? [00:40:25] Speaker 04: Your Honor, I want to say just several things, and I can do it briefly. [00:40:31] Speaker 02: Well, is one of them going to be responding to government counsel's argument that 902 v. [00:40:36] Speaker 02: 3 has a gloss? [00:40:40] Speaker 02: Yes, sir. [00:40:43] Speaker 04: What I was going to say about that is that it assumes that what is really happening here is that 28 USC 455 is being brought in wholesale. [00:40:53] Speaker 04: And in fact, this language is not in, the language we're focusing on here is not in 455. [00:40:59] Speaker 04: And it has been put into this rule, obviously, as a matter of choice. [00:41:06] Speaker 04: And then to say that it does not mean what it clearly says is, I think, runs counter to, I guess I would say, common sense or a common way of reading. [00:41:16] Speaker 04: Well, what about the two cases government counsel cited? [00:41:20] Speaker 04: And I'm sorry your honor, the government didn't cite those prior to coming here today, to my knowledge, and so I'm not prepared to deal with them directly. [00:41:36] Speaker 04: I think it is important to note, at the very least, that we are talking here about military commissions as opposed to court marshals. [00:41:44] Speaker 04: And there is a separate set of rules that applies in the military commissions that is separate from the rules for court marshal. [00:41:51] Speaker 04: And to the extent that they are different would obviously have a different interpretation. [00:41:57] Speaker 04: And I would request, if the court thinks it's appropriate, the opportunity to address those cases in some sort of subsequent presentation to the court. [00:42:11] Speaker 01: Because what I heard counsel of the government suggesting was there may be a separate set of rules, but that the military courts have said treat both sets of rules sort of [00:42:22] Speaker 01: in tandem that the commission role should be interpreted as the [00:42:31] Speaker 01: the way the court martial rules. [00:42:34] Speaker 04: I understood her to be saying that as well. [00:42:37] Speaker 04: And, uh, and I simply am not in a position to address that because I'm not familiar with the case, not having had it brought to my attention before. [00:42:46] Speaker 04: But, um, but I think use. [00:42:48] Speaker 01: So let's suppose the government counsel is correct in the reading of those cases. [00:42:56] Speaker 01: That was [00:42:57] Speaker 01: presented here today. [00:42:59] Speaker 01: What would your response be? [00:43:01] Speaker 04: Well I guess my response would be. [00:43:03] Speaker 01: I realize this is off the top so I'm not suggesting we wouldn't give you an opportunity to consider this. [00:43:10] Speaker 04: Thank you, Your Honor. [00:43:12] Speaker 04: I think my response would be that we have focused on 902b3, the language in 902b3, as a result of your order from yesterday. [00:43:21] Speaker 04: And I still believe that, you know, the first phrase of 902 says that a judge should be recused in any proceeding in which that military judge's impartiality might reasonably be questioned. [00:43:36] Speaker 04: I understand the due process argument to be now phrased in terms of too great a risk that the judge is actually biased. [00:43:45] Speaker 04: And my suggestion is that when you have a judge who previously stated that the defendant is guilty and he does state he does state that it is not some contextual [00:43:57] Speaker 04: situation, he brings up in this interview, he brings up the conspirators in the 9-11 attacks. [00:44:06] Speaker 04: He's the one who starts that part of the discussion. [00:44:09] Speaker 04: And there are, of course, many other statements that we've pointed to in our moving papers. [00:44:14] Speaker 04: And I submit that there is too great a risk that this judge is impartial for it to be constitutionally tolerable, and that a reasonable person, in the words of Rule 902, that a reasonable person could conclude that the military judge's impartiality might reasonably be questioned. [00:44:35] Speaker 04: So, um, I can't believe, honestly, that a rule that says that that does not say this does not contain the limitation of this type that was not present in 455, um, that does not contain a limitation to statements made while a judge that they could reasonably be read to say that. [00:45:02] Speaker 04: Um, but [00:45:04] Speaker 04: But I guess that would await reviewing the cases specifically and addressing. [00:45:09] Speaker 01: All right. [00:45:09] Speaker 01: Anything further? [00:45:10] Speaker 01: Good. [00:45:10] Speaker 01: Nothing further. [00:45:15] Speaker 02: Why don't we just talk about it first? [00:45:17] Speaker 01: All right. [00:45:18] Speaker 01: Thank you. [00:45:18] Speaker 01: We'll take the case under advisement.