Circuit Court allows war crimes trials to begin
on May 31, 2007 at 4:29 pm
In the wake of the Supreme Court’s refusal on April 30 to hear the appeals of two Guantanamo Bay detainees now facing war crimes trials, the D.C. Circuit Court has ruled that it has no authority to stop those trials from opening next Monday. In a brief order on Wednesday, a three-judge panel denied a plea to postpone the trial of a young Canadian detainee. “This court is without jurisdiction to grant the requested relief,” the order read.
The order, issued in Khadr v. Gates (07-1156), accepted in full the Bush Administration’s argument that Congress has taken away the power of the federal courts to take any action involving the war crimes “military commissions,” at least until after a trial is over and a guilty verdict reached on the charges. Attorneys for Omar Khadr, a 20-year-old who has been held by the U.S. military since he was 15, had argued that the Circuit Court clearly had the power to put off a commission trial until it could rule on whether a detainee had been validly classified as an “enemy combatant.” Only a prisoner given that designation by the military can be tried for war crimes, under federal law.
The Circuit Court’s only explanation of its finding that it had no jurisdiction to delay a war crimes proceeding was a citation to 10 U.S.C. 950-j-b. That is the provision in the new Military Commissions Act passed by Congress last fall specifying that no federal court (including the Supreme Court) may consider any claim about “the prosecution, trial, or judgment of a military commission” — with the one exception that the D.C. Circuit may review an actual conviction that results.
Khadr was one of two detainees facing war crimes trials who had asked the Supreme Court to allow them to continue with their habeas challenge to the commission process. The other was Salim Ahmed Hamdan. The Supreme Court, over three Justices’ dissents, declined to hear that case (Hamdan/Khadr v. Gates, 06-1169).
Hamdan’s case is returning to the D.C. Circuit, with the two sides ordered to file briefs there by June 9 on what should happen next with that case. Khadr’s attorneys on May 23 filed a petition for review in the D.C. Circuit, under the Detainee Treatment Act of 2005, seeking to challenge the military panel (Combatant Status Review Tribunal) that found him to be an “enemy combatant.” Simultaneously, his attorneys asked the Circuit Court to postpone his war crimes trial until the Circuit Court concluded whether he was properly classified as a “combatant.” That is the request the three judges denied Wednesday.
Both Khadr and Hamdan are scheduled to be arraigned — that is, given a chance to offer a plea — before military commissions at Guantanamo Bay, the U.S. military prison in Cuba, on Monday. An American Civil Liberties Union observer, Jameel Jaffer, will be relating what he sees and hears at those proceedings on a blog — http://blog.aclu.org. Hamdan is charged with a terrorist conspiracy and with providing support to terrorist activity. Khadr is charged with murder, attempted murder, conspiracy, material support of terrorism, and espionage. He is accused of killing an American soldier with a grenade in Afghanistan in 2002, when he was 15.
Khadr’s stay motion can be found here. The government’s opposition to the stay is here, and Khadr’s reply is here.
