Judge Silliman's recusal: two views of the D.C. Circuit's ruling

On August 9, 2017, the United States Court of Appeals for the District of Columbia Circuit ruled in KSM's case that Judge Scott Silliman of the United States Court of Military Commission Review should not have sat on the case because, before being named to the bench, he had expressed a view as to the accused's guilt. Major General (R) Charles J. Dunlap Jr., who teaches at Duke Law School, criticizes the decision here on Lawfire, and Prof. Steve Vladeck of the University of Texas Law School (and Global Military Justice Reform contributor) replies here on Just Security.

As one part of his argument, Charlie writes:

Do we really think there are authentically qualified persons ‘out there’ who have never commented on the guilt of KSM at one point or another – particularly after his own admissions? Think about it: what kind of person active in the national security law space has never commented about the 9/11 conspirators at some point over the years? 

Do we really want to chill the pre-appointment expression of law professors and others who might make ideal jurists? Do we need to stop recording classes out of fear that a student may make a comment in an academic setting that could come back to haunt her or him years later in a completely different context? 

More fundamentally, do we need to make accommodations for especially notorious cases that arise in the context of an ongoing armed conflict? As the late Supreme Court Justice William Rehnquist put it: 

"In wartime, reason and history both suggest that this balance shifts to some degree in favor of order – in favor of the government’s ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail."

In short, not only do I believe the D.C. Circuit’s opinion was legally wrong, it also sets a precedent that does not serve justice. It is a facile and shallow analysis of an issue that has graver implications than the court seemed to have even recognized. It is all well and good for judges to assess what other judges do as judges, but it is wrong for judges to attempt to chill the pre-appointment protected speech of law professors, particularly when doing so intrudes upon the confirmation role the Constitution allocates to the Senate, not the Judiciary.

Steve replies:

Charlie pivots from his problematic recusal analysis to a broader claim—”that this is another example of a court being indifferent to the chilling effect of its ruling on the First Amendment activity at a time when the persons who engaged in it were not government officials.” In essence, Charlie is suggesting that the D.C. Circuit’s analysis will chill law professors (and other members of the pool of putative candidates for future CMCR judgeships) from publicly opining about the military commissions, lest those statements be used to force their recusal in subsequent proceedings—and that this poses grave concerns for academic freedom. 

This claim strikes me as deeply unpersuasive. Academic freedom is not, as Charlie suggests, an immunity from downstream consequences for statements academics make in their academic capacity; it is far more specifically about protecting their ability to remainan academic, without sanction, despite expressing unpopular views or pursuing unpopular lines of scholarly research or other inquiry. If I say something as a law professor that formally or functionally disqualifies me from consideration for some other, non-academic position, them’s the breaks. Otherwise, on Charlie’s view, if I made public statements as a law professor that, for example, would disqualify me from receiving a security clearance, the security clearance rules would therefore raise academic freedom concerns. Not so much, methinks. 

Finally, Charlie closes with an in terrorem argument—asking (rhetorically) whether “we really think there are authentically qualified persons ‘out there’ who have never commented on the guilt of KSM at one point or another—particularly after his own admissions,” and whether “we need to make accommodations for especially notorious cases that arise in the context of an ongoing armed conflict?” Charlie appears to think that the answers are “no” and “yes,” respectively, but this has things entirely backwards. I can think of dozens of leading national security law scholars and practitioners who, I’m willing to bet, have never publicly offered an opinion on the guilt or innocence of the 9/11 defendants. To be sure, I’m not one of them, but it’s not like I’ve been waiting by the phone for my CMCR nomination… 

More importantly, the idea that “we need to make accommodations” for the 9/11 trial (here, in favor of allowing a judge who has publicly taken a position on the guilt of the defendants to hear an appeal in their case) is the very last thing that the 9/11 trial needs. Part of why the military court recusal rules are broader than the civilian court rules on which Charlie hangs so much of his analysis is because the former tribunals don’t have the same structural independence as the latter, and therefore raise far more serious legitimacy and fundamental fairness concerns. After all, recusal is not just about actual impropriety; it’s also about the appearance thereof. Why anyone would want to risk having a conviction in the 9/11 trial tossed (or, worse, not) because of the participation in a pre-trial interlocutory appeal of a judge who expressed such a public opinion is beyond me.