Petitions of the week

Canadian formerly held at Guantanamo seeks to erase terrorism conviction

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The vast majority of criminal cases – 98% of those in federal court, and 95% of those in state court – are resolved through plea bargains. As a condition for pursuing a lesser conviction or shorter sentence, prosecutors may also require someone who pleads guilty to a crime to sign away their right to appeal. This week, we highlight petitions that ask the court to consider, among other things, whether a plea deal with an explicit waiver of the right to appeal bars defendants from later asking a court to vacate their conviction if the conduct of which they were accused, it turns out, was not a crime at all.

Omar Khadr was 15 when U.S. military forces in Afghanistan invaded a suspected al Qaeda compound where he lived. During the invasion, Khadr threw a hand grenade that killed a U.S. soldier; Khadr was then shot by U.S. forces. The U.S. military took Khadr into custody, provided him with medical care, and sent him to the U.S. naval base at Guantanamo Bay, Cuba.

Four years into Khadr’s detention, the Bush administration enacted the Military Commissions Act of 2006. The law gave military tribunals the power to try “unlawful enemy combatants” for a list of terrorism-related crimes, and it established a new military review court in Washington to hear appeals.

In 2007, charges against Khadr were referred to a military tribunal. Khadr pleaded guilty to all five of the charges against him, including providing material support for terrorism, in front of a military commission at the Guantanamo naval base. His guilty plea contained an express waiver of his right to appeal. The commission sentenced Khadr to 40 years in prison.

The Obama administration agreed in 2012 to transfer Khadr, who is a Canadian citizen, to Canada to serve the remainder of his sentence there. A Canadian court ultimately released him on bail in 2015 and commuted his sentence in 2019.

The same year that U.S. authorities transferred Khadr to Canada, however, the U.S. Court of Appeals for the District of Columbia Circuit – the federal court of appeals that presides over the Bush administration’s military review court – issued a ruling on the 2006 law under which Khadr was convicted. In an opinion by then-Judge Brett Kavanaugh, the court held that military commissions lacked the power to try individuals for offenses – such as material support for terrorism – that were not designated as war crimes before the law’s enactment.

While still in prison in Canada, Khadr asked the military review court in Washington to wipe his conviction off the books. He argued that because the acts to which he pled guilty occurred in 2002, his conviction violated the U.S. Constitution’s ban on convicting someone of a crime for conduct that was not against the law when it was committed. The military review court dismissed Khadr’s challenge, finding he had waived his right to appeal when he pleaded guilty over a decade before.

A divided panel of the D.C. Circuit agreed with that ruling. The majority reasoned that, when Khadr pleaded guilty, he signed a general waiver agreeing not to appeal for any reason. The court held that challenging a conviction as invalid on its face under the Constitution is not exempt from this waiver, so that Khadr was barred from raising it after the fact.

In Khadr v. United States, Khadr asks the justices to grant review and reverse the D.C. Circuit’s ruling. He argues that the courts of appeals are divided over whether criminal defendants can  ever waive their right to argue that their conviction was legally invalid by pleading guilty. Just as “[p]lea agreements based upon non-criminal conduct cannot” support a conviction, Khadr writes, nor do general waivers of appeal “bar appellants from seeking review of their convictions for conduct that is not criminal.”

A list of this week’s featured petitions is below:

Advocate Christ Medical Center v. Becerra
23-715
Issue: Whether the phrase “entitled … to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.

Khadr v. United States
23-720
Issue: Whether a plea agreement that includes a general appellate waiver forecloses a direct appeal when a defendant has pled guilty to conduct that was not criminal.

Diaz v. Polanco
23-722
Issue: Whether the U.S. Court of Appeals for the 9th Circuit improperly denied qualified immunity to prison officials in these cases by defining the relevant law at a high level of generality and failing to identify any precedent recognizing a constitutional violation on similar facts.

Ahmed v. Securities and Exchange Commission
23-741
Issue: Whether the cross-appeal rule, which prohibits the granting of a remedy in favor of an appellee absent the filing of a cross-appeal, is jurisdictional or otherwise mandatory, or instead admits of any exception, including, among other things, for remands or changes in substantive law.

Consumers’ Research v. Federal Communications Commission
23-743
Issues: (1) Whether 47 U.S.C. § 254 violates the nondelegation doctrine by imposing no limit on the Federal Communications Commission’s power to raise revenue for the Universal Service Fund; and (2) whether the FCC violated the private nondelegation doctrine by transferring its revenue-raising power to a private company run by industry interest groups.