New review of Khadr ruling denied
on Oct 2, 2007 at 5:52 pm
The U.S. Court of Military Commission Review, acting swiftly, turned down on Tuesday a plea to reconsider its decision that cleared the way for the Pentagon to pursue war crimes charges against a 21-year-old detainee at Guantanamo Bay, Cuba — Omar Ahmed Khadr. In a one-paragraph order, the special military appeals court denied a motion for reconsideration of its Sept. 24 decision. The Khadr motion, filed one day earlier, can be found here, and the Court’s order is here.
The CMCR sent Khadr’s case back to the presiding judge of a military commission that was scheduled to try him for alleged war crimes, ordering that judge to gather the evidence to decide whether Khadr is an “unlawful enemy combatant.” Only foreign nationals so designated can be tried before military commissions, under a law passed by Congress last year.
In seeking reconsideration, Khadr’s American and Canadian counsel had argued that the judge at the commission level, Col. Peter Brownback, had informed attorneys that he planned a truncated review of Khadr’s status. The process, Khadr’s lawyers argued, would be “fundamentally unfair.” It added: “Clearly, the military judge desires to establish a basis for jurisdiction as quickly as possible. The manifest result of this Court’s decision is thus an ad hoc and unfair proceeding.”
The motion reported that Judge Brownback had given both sides one week to submit materials about Khadr’s status, with the evidence to be submitted simultaneously, and restricted the legal claims that Khadr’s counsel could raise. The decision about his status would thus be made on the basis of the “thinnest of factual and legal foundations,” the motion argued.
It asked the CMCR to reconsider and rule that the military commission should not be able judge for itself whether it had jurisdiction over Khadr. It also asked the CMCR to provide specific guidance to Judge Brownback on how to proceed on the status determination. Finally, it asked for a 20-day stay for Khadr to seek “appellate review” of the CMCR decision — presumably, to the D.C. Circuit Court.
 In another detainee development, a U.S. District judge in Washington, D.C., asked the Justice Department on Tuesday to respond to a plea that he restore habeas cases involving as many as 40 detainees at Guantanamo Bay. Judge Ricardo M. Urbina had dismissed those cases on Sept. 20, finding his Court had no jurisdiction. The detainees’ counsel argued in their motion filed last week that the Supreme Court’s agreement to hear two detainees cases has put everything on hold, and that the District Court thus lacks jurisdiction to dismiss the cases.
In his order on Tuesday, Judge Urbina told the government to file its response by 3 p.m. Thursday, with the detainees’ reply, if any, due by noon on Friday. The cases are Al Hela v. Bush (District Court docket 05-1048) , Hatim v. Bush (05-1429) and Kiyemba v. Bush (05-1509).
 The judge’s dismissal of the cases led the Justice Department to argue that orders previously issued to assure lawyers that they would have access to their Guantanamo clients,, and to bar the government from moving detainees out of Guantanamo without giving 30 days’ advance notice to the attorneys, had lapsed when the cases were dismissed.  The detainees’ counsel have filed a motion seeking temporary orders to ensure that the client-visit options continue, and that the advance notice requirement be intact while the judge considers whether to reconsider his order of dismissal.
 Judge Urbina has yet to act on that request.
