Appeals court: War crimes trial may start
on Nov 6, 2007 at 4:27 pm
The D.C. Circuit Court rejected a plea by lawyers for a 21-year-old Canadian being held prisoner at Guantanamo Bay, Cuba, to delay the start on Thursday of the first war crimes trial until after the federal civilian courts rule on the power of the U.S. military to try such cases. In a brief order, a three-judge panel of the Circuit Court denied the emergency motion for a stay of military commission proceedings against Omar Ahmed Khadr, finding that he “had not satisfied the stringent standards required for a stay pending court review.” (Khadr v. U.S., Circuit docket 07-1405)
Khadr’s trial is scheduled to start on Thursday, at least for a pre-trial hearing on whether the commission has the authority to go ahead with his trial itself on war crimes charges. Khadr, however, still has a postponement request pending in U.S. District Court, before U.S. District Judge John D. Bates (O.K. v. Bush, District Court docket 04-1136). That request seeks to block the trial until after the Supreme Court rules on pending cases on the legal rights of Guantanamo detainees. Judge Bates had taken no action on that request by mid-afternoon Tuesday. The Justice Department opposed that plea, as well as the stay motion in the Circuit Court; on Tuesday, the Department informed Judge Bates of the Circuit Court’s denial of a stay, saying it supported the government’s opposition to any court-ordered delay.
Khadr is charged with murder of a U.S. serviceman in Afghanistan, attempted murder, and providing support to terrorists. His trial before a commission has been stalled twice before by legal complications. On Thursday, a military judge presiding over the commission that is scheduled to try Khadr is to hold a hearing on whether to designate the detainee as an “unlawful enemy combatant.” If the judge does so, that would give the commission jurisdiction to go ahead with the trial.
Khadr’s lawyers had sought delays both in the Circuit Court and in District Court, because they said the proceedings pending in the two are different. The Circuit Court case is a challenge to the authority of the military judge to weigh Khadr’s legal status, and to the authority of the U.S. Court of Military Commission Review to assign the judge that task. The District Court case is a wider-ranging habeas challenge, both to Khadr’s detention and to the authority of the commission to try him under any circumstances, on the theory that the commission system is constitutionally flawed.
In arguing for a delay in Judge Bates’ Court, the detainee’s lawyers argued that the Supreme Court’s coming decision on whether Guantanamo detainees retain a constitutional right to challenge their detention through habeas petitions (the issue in Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) would directly affect whether Khadr could proceed with his habeas challenge to the commission system. The Justice Department countered that the Supreme Court cases do not involve any issue involving the military commission, and further that Congress in 2006 had explicitly taken away federal courts’ authority to rule on any habeas claims against the commission system.
