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On Wednesday, May 23, the U.S. Court of Military Commission Review (CMCR), the intermediate military appellate court responsible for reviewing military commission proceedings, announced that it currently lacks a quorum to decide contested motions in United States v. Khalid Shaikh Mohammad, et al, commonly known as the “9/11 case.”
Pending before the CMCR was a motion from codefendant Ammar al-Baluchi seeking a writ of mandamus requesting that the CMCR “prevent the further destruction of material evidence crucial to the guilt-innocence and sentencing phases of the pending military commission trial” by staying the government’s further destruction of a CIA “black site” that al-Baluchi asserts he was held in and is evidence material to his defense. Al-Baluchi also filed a motion for a 90-day extension of trial judge Col. James Pohl’s Apr. 20 stay pending the CMCR’s review of the mandamus petition, and a motion requesting that Pohl release relevant classified documents to the CMCR. The current stay in the trial court extends until June 19.
The CMCR is unable to resolve contested motions in the 9/11 case, like al-Baluchi’s request for mandamus, due to the recusal from the case of three of five judges currently appointed to the CMCR. Deputy Chief Judge Scott Silliman is disqualified from hearing all matters related to al-Baluchi’s co-defendant Khalid Shaikh Mohammad due to a finding of apparent bias and accordingly recused himself from the 9/11 case. Chief Judge Paulette V. Burton and Judge James W. Herring, Jr. were on the panel that heard the appeal that led to Silliman’s disqualification and on that basis recused themselves as well. CMCR Judges William B. Pollard, III and Larss G. Celtnieks remain available to consider contested motions in the 9/11 case, but by statute CMCR panels must be “composed of not less than three judges on the Court.” Additionally, only the Chief Judge and the Deputy Chief Judge, both of whom are recused, have the authority to designate CMCR panels. Consequently, the CMCR determined that it “cannot act in contested matters related to Khalid Shaikh Mohammad, which includes the present appeal, until more judges are added to this Court and an Acting Chief Judge is appointed who can designate a panel.”
The Department of Defense has several nominees for the CMCR currently under consideration. Until at least one more judge is confirmed, appellate review in the CMCR of contested matters in the 9/11 case is on hold. Parties may still be able to seek writs of mandamus from the CMCR’s superior court—the U.S. Court of Appeals for the D.C. Circuit—but the extent to which this option is available is, at present, unclear.