Government to oppose Khadr appeal
on Oct 17, 2007 at 12:37 pm
Pentagon prosecutors, revealing the government’s legal view on appeal rights of Guantanamo Bay detainees facing war crimes trials, are opposing civilian court review of those cases until such trials are over. The dispute that is developing over the nature of these appeal rights may also affect the authority of the Supreme Court to review war crimes cases before guilty verdicts are reached.
In arguments made last Friday to a military judge at the U.S. Naval base at Guantanamo, military prosecutors contended that the D.C. Circuit Court has no authority under federal law to hear a pre-trial appeal by a young Canadian, Omar Ahmed Khadr, seeking dismissal of all charges against him.  Khadr’s American and Canadian defense lawyers have filed an appeal in the Circuit Court, arguing that the case has reached a “final judgment” on whether charges have been validly filed against him. (The petition for review is docketed in the Circuit Court as 07-1405, Khadr v. U.S.  A post last week discussing this appeal can be found here.)
The Khadr case is scheduled to resume Nov. 8 before the judge who presides over the military commisson scheduled to try the 21-year-old detainee, captured in Afghanistan at age 15 and now facing charges of killing an American serviceman. The opening activity before the commission will be a proceeding on whether Khadr is an “unlawful enemy combatant” — the status necessary for the commission to have jurisdiction to conduct the trial.
The judge, Army Col. Peter Brownback, is weighing Khadr’s status under orders from the top war crimes appeals court, the U.S. Court of Military Commission Review. The Pentagon’s views on appeal rights of Khadr and other detainees in the war crimes process came in response to a move by Khadr’s lawyers to postpone the Nov. 8 proceeding at Guantanamo while his appeal to the D.C. Circuit unfolds.
Brownback denied the delay request on Monday. In reaction, Khadr’s military lawyer, Lt. Cmdr, William Kuebler, said the Pentagon position indicated that the entire war crimes process is broken, commenting in a public statement: “They write a rule giving Omar a right to appeal, they tell Omar he has a right to appeal, and when he appeals, they claim he doesn’t have a right to appeal — Alice in Wonderland really is the only way to describe it.”
In the prosecutors’ brief to Brownback, they argued that the Military Commissions Act of 2006 allows an appeal to the Circuit Court only if there has been a “final judgment” before a commission, after that has been reviewed by military authorities, and after any appeal to the Court of Military Commission Review is over.
All that the CMCR has done so far in Khadr’s case, the prosecutors contended, is to send the case back to Col. Brownback to weigh Khadr’s status as an alleged combatant subject to war crimes prosecution. “The procedural predicate for an appeal to the D.C. circuit does not exist,” the brief contended.
Khadr’s lawyers have argued that, since Judge Brownback earlier had dismissed the charges against him, and the Pentagon successfully  pursued an appeal of that ruling, there is now a “final judgment” subject to the review by the D.C. Circuit, specifically, on whether the CMCR was right in ruling that Brownback should consider reinstating the charges.
The MCA provides that the Circuit Court has “exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission” with the approval of higher military authorities, and it specifies that the Circuit Court “may not review the final judgment until all other appeals…have been waived or exhausted.”
Interpreting the exact meaning of those provisions will be the Circuit Court’s first task in reaction to Khadr’s petition for review there. With the arguments now on the record by Pentagon prosecutors in Khadr’s case in Guantanamo, it appears certain that the Justice Department will make the same arguments to the Circuit Court in reply to the Khadr petition.
In the meantime, Khadr’s lawyers are free to seek a delay of the Guantanamo proceedings from the Circuit Court itself on the theory that two courts — one military, one civilian — should not be reviewing the case at the same time.
This dispute has implications for the Supreme Court’s review powers in war crimes cases because the MCA, right after outlining the role of the Circuit Court to review a “final judgment,” specifies that “The Supreme Court may review by writ of certiorari the final judgment” reached by the Circuit Court. Thus, if Pentagon lawyers are right that the Circuit Court does not yet have authority to hear Khadr’s appeal because nothing is final yet in the war crimes process, that potentially could affect Supreme Court jurisdiction, too. Only the Supreme Court, however, could clarify its own jurisdiction.
