Defense Seeks Recusal of New Judge Who Claims Little Memory of His Feelings On Sept. 11, 2001

The military judge decided Tuesday not to recuse himself but said defense teams could raise challenges again based on new evidence. Photo of the Pentagon's Sept. 11 Memorial by Stuart456/Dreamstime.com.

Guantanamo Naval Base, Cuba – The Sept. 11 case at Guantanamo Bay opened a brand new chapter this week as Marine Col. Keith Parrella attempted to take the judicial reins of the long-running and unwieldy proceedings that have dragged on for more than six years without a trial date on the calendar.

But this week’s session – commencing on the eve of the 17th anniversary of the attacks that left 2,976 people dead in New York, Virginia and Pennsylvania – may only heighten the complexity and uncertainty of the historic military commission. On Monday, Parrella sat through extensive voir dire with the five defense teams who probed his relatively slight judicial experience along with his past work for the Justice Department counterterrorism team that has prosecutors assigned to the case now before him.

Among the details to emerge in the occasionally tense exchanges between Parrella and the defense teams was that the judge plans to accept a new Marine Corps command the summer of 2019. With pretrial proceedings scheduled for all of 2019, the trial itself is not expected to start until 2020 or in the years after – which would make Parrella a somewhat brief participant in a judicial relay that has no visible end.

Parrella was more keen to answer questions on any concerns arising from his stint in the Justice Department than on his qualifications as a judge. Though he has never presided over a death penalty case, Parrella repeatedly pointed out that his two years of experience as a military judge meets the minimum requirement set by commission rules.

“This is not a minimum type case,” David Nevin, the lead attorney for accused plot mastermind Khalid Shaikh Mohammad, pushed back in arguing that Parrella should recuse himself.

Nevin also focused on Parrella’s recent inheritance of a massive record that is unlike any in American criminal history, with 20,000 pages of court transcripts and countless thousands of pages of pleadings and evidence, much of which is classified. The soon-to-retire Army Col. James Pohl, who had handled the case since the May 2012 arraignment, only transferred it to Parrella on Aug. 27.

At the very least, Nevin argued, the new judge should abate proceedings until he has reviewed and understood the entirety of the substantive record in the case, instead of getting “up to speed” in real time while moving forward.

“It is not appropriate in a capital case,” Nevin said.

The prosecution, however, had no problem with Parrella's qualifications or schedule, with Clay Trivett, one of the prosecutors, saying the government “sees no grounds under which you are required to recuse yourself.”

He argued that the new judge should not allow the defense teams to continue what he described as a strategy to delay the case whenever possible.

“It is a strategy we’ve seen for the last six years,” Trivett said.

Quite the contrary, Nevin countered: With recent developments, the best way to delay the case in the long-term would be to move forward now and wait for the turmoil that will arise if Parrella really does leave in 10 months.

Cheryl Bormann, the lead attorney for Walid bin Attash, and James Harrington, for Ramzi bin al Shibh, also argued that Parrella should recuse himself. Harrington was particularly dissatisfied with Parrella’s inability or unwillingness to recall in detail his emotional reaction to the Sept. 11 attacks, as the lawyers attempted to probe potential bias. Parrella was in the Marines at the time of the attacks.

“It seems to me to be incredulous,” Harrington said.

The team for Ammar al Baluchi, led by James Connell, requested four weeks to investigate the details of Parrella’s Marine Corps fellowship, from 2014 to 2015, with the counterterrorism section of the Justice Department’s National Security Division, which has contributed lawyers to the large prosecution team led by Army Brig. Gen. Mark Martins.

Parrella said he worked on terrorism cases during his stint at the Justice Department but did not work on the Sept. 11 case. He also said that he has known socially one of the long-serving prosecutors, Jeffrey Groharing, for a number of years though their interactions have been infrequent.

The lead lawyer for Mustafa al Hawsawi, led by Walter Ruiz, also told Parrella he wants time to digest Monday’s proceedings and fully brief any challenges his team chooses to make.

Parrella recessed in the mid-afternoon, telling the parties he would make a decision on Tuesday morning.

The new judge earned his law degree from Arizona State University in 1998 and has held a variety of legal positions with the Marine Corps, including in defense and prosecutorial roles.

Among the vast landscape of issues Parrella has inherited is Pohl’s decision last month to suppress statements the five defendants made to FBI agents at Guantanamo Bay in January 2007, after spending multiple years at CIA black sites. The government has filed a motion to reconsider the ruling; how Parrella decides the issue will have an enormous impact on the course of the litigation. Prosecutors are likely to appeal to the commission’s review court if Parrella keeps the ruling in place.

For now, Parrella is maintaining several of Pohl’s policies, including requiring the defendants to attend the first day of each session but allowing them to voluntarily skip subsequent days. Like Pohl, Parrella plans to schedule court breaks around the defendants’ prayer time and does not want them shackled in court.

On Tuesday morning, the judge rejected the motions for his recusal or disqualification, repeating again that he possessed the “requisite qualifications” set by Congress and the executive branch. Parrella also said that he did not have a bias or lack of impartiality from his time at the Justice Department.

“I have not expressed an opinion about the guilt or innocence of the accused,” Parrella said.

The judge said that defense teams could ask him to reconsider the ruling if they uncover new evidence. Ruiz reminded the judge that his team had not yet asked for his recusal, so that any challenges filed for his client would not be motions for reconsideration.

“We all do have independent positions,” Ruiz said.

Editor’s note: This article was initially published on Sept. 10 and was edited on Sept. 11 to include the judge’s ruling.  

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism. View our staff page.