More Difficulties with the Military Judges in the Military Commissions

As Carol Rosenberg of the New York Times reported on Friday, Col. Stephen F. Keane, USMC, JAGC, has abruptly recused himself from presiding over the military commission trial of the accused plotters of the September 11th attacks. Col. Keane had only been detailed to preside over the case on 17 September 2020, and had not presided over any of  the cases' long-running series of pre-trial hearings.  His only substantive ruling during his brief tenure was to suspend further pre-trial hearings until 2021 due to risks posed by the COVID-19 pandemic and his own desire to get up to speed with the case.

In his decision explaining his recusal, Col. Keane cited his work for a counter-terrorism unit of the Criminal Investigation Task Force, which worked in direct support of the Office of the Chief Prosecutor, responsible for the prosecution of detainees before military commissions as well as a further deployment to Iraq. He served in this role from 2003-2004 and insisted that he had no recollection of working on any matters relating to the accused September 11th plotters. A native of New York City, Col. Keane also obliquely referred to "significant personal connection to persons who were directly affected by the events of 9/11" that he only learned over of the past few weeks. Cumulatively, Col. Keane concluded that these facts called the appearance of his impartiality into reasonable question.

Finding properly security cleared and qualified military judges to preside over the Guantanamo military commissions, and the September 11th case in particular, has been a recurring source of difficulty and delay in the proceedings. In 2019, the D.C. Circuit retroactively disqualified a military judge from the USS COLE case for judicial misconduct and vacated more than four years of pre-trial proceedings. As CAAFLog readers know, similar issues risk setting another of the military commissions back in a case that is currently before the D.C. Circuit. And Col. Keane was the fifth military judge to preside over the September 11th case in little more than two years.

​No replacement has yet been announced. 

Michel Paradis

LOAC Editor