Khadr appeal: new test of civilian court powers

By Lyle Denniston
on Oct 11, 2007 at 3:41 pm

The D.C. Circuit Court, already drawn deeply into an increasingly complex and ever-lengthening list of issues over the legal rights of detainees at Guantanamo Bay, is now facing its first test of civilian court review of the war crimes trial regime set up by Congress in 2006 — a case that may move on to the Supreme Court.

U.S. and Canadian lawyers for Omar Ahmed Khadr, a 21-year-old Canadian national now at Guantanamo and likely to face a war crimes proceeding in early November, have filed the first appeal in a military commission case that is ready for trial: Khadr v. U.S. and U.S. Court of Military Commission Review (Circuit docket 07-1405).

Although only two individuals at Guantanamo — Khadr and Salim Ahmed Hamdan, a Yemeni national — are presently facing war crimes trials before commissions, the Pentagon has said it may eventually try as many as 80 prisoners on such charges. (UPDATE Friday a.m.: There is now a third Guantanamo detainee facing war crimes charges: Mohammed Jawad, accused on Tuesday of attempted murder for throwing a hand grenade into a vehicle carrying two American soldiers and their Afghan interpreter with intent to kill them, and with causing “serious bodily injury” to those three men. The incident is alleged to have occurred in Afghanistan on Dec. 17, 2002. The charge sheet can be found here.)

Khadr’s appeal (found here) is a petition for review, seeking to overturn a Sept. 24 decision by the new military appeals court that oversees war crimes cases, clearing the way for Khadr’s commission trial, now set to begin at Guantanamo on Nov. 8.

Up to now, no detainee has had a civilian court hearing on any claims about defects in the regime created by the 2006 law. Hamdan previously won a Supreme Court ruling, striking down the military commission system that President Bush had created on his own. After that, Congress created a new system very much like the previous one. Hamdan’s attempt to challenge prosecution in the wake of the 2006 law has been rejected for jurisdictional reasons by a U.S. District judge, and that jurisdictional dispute is now pending in the D.C. Circuit. Hamdan received no hearing on the merits of his claims that the new commission system, like the old, is unconstitutional. (The Supreme Court this month refused to grant speedy review of Hamdan’s challenge before the Circuit Court proceeds.)

Khadr’s case has moved the furthest toward an actual trial. The charges against him were dismissed June 4 by a military judge presiding over the commission that was to try him, when that judge found the commission lacked jurisdiction because of a defect in the military’s finding that he was an “enemy combatant” subject to trial for war crimes.

The Court of Military Commission Review, however, in its decision last month, ruled that the military judge could supply the needed basis to establish commission jurisdiction to try Khadr.

Khadr’s appeal, filed on Tuesday, challenges the CMCR rulng that a military judge leading a commission has the authority to make findings that an accused individual is an “unlawful enemy combatant.” This case, the appeal papers argue, “raises the fundamental issue of whether a military commission itself can determine” the unlawful status of a detainee subject to trial. “This question,” the appeal adds, “has wide-ranging practical implications, since not a single detainee at Guantanamo Bay has been held to be an ‘unlawul enemy combatant’ ” — the only finding that can give a commission jurisdiction over a detainee.

Under existing military regulations, panels known as Combatant Status Review Tribunals were set up to decide whether a detainee could be held in continuing confinement. CSRTs only determine, however, whether a detainee is an “enemy combatant,” not whether the detainee’s status was that of an “unlawful” combatant. This was the defect the military judge found in Khadr’s case.

It would violate both international and U.S. law, the appeal contends, for trials to proceed in cases in which the commissions themselves have concluded that “unlawful” status should be assigned to a given detianee, the appeal contends. “The question at issue in this appeal is thus central to the mechanics and validity of miltary commission trials,” the appeal asserts.

Besides raising that core question, Khadr’s appeal also argues that the Pentagon did not file a valid appeal from the military judge’s dismissal of the charges against Khadr, that the CMCR is not operating lawfully because its rules were not validly laid down, and that the appointments of judges to the CMCR were invalid.

A significant part of the petition for review is devoted to an argument that Khadr does have a right to appeal now from the CMCR ruling, even though he has not yet gone to trial. The Military Commission Act gives the D.C. Circuit exclusive authority to “determine the validity of a final judgment rendered by a military commission.” Khadr’s lawyers argue that the June 4 order by the military judge dismissing all charges was a “final judgment” subject to appeal, after the CMCR has passed upon that ruling.

The Pentagon in replying to the appeal is expected to argue that, under MCA, no appeal may be taken to the Circuit Court until after a commission trial is over, with a verdict, and an appeal to the CMCR is concluded.

A threshold issue for the Circuit Court thus appears to be its own authority to rule on Khadr’s case.