Military appeals court judges challenged
on Jul 20, 2007 at 2:55 pm
Defense lawyers for a young Canadian being detained at Guantanamo Bay, Cuba, have challenged the authority of a military appeals court to hear and decide military prosecutors’ plea to revive war crimes charges in the case. Attorneys for Omar Ahmed Khadr, 20, on Thursday contended that the new Court of Military Commission Review has not been properly appointed, and thus none of its judges may sit. The motion can be found here, and attachments to it are here.
The filing marked a new sign of difficulty, even if only temporary, for the war crimes prosecution process that was intended to try up to 80 “war-on-terrorism” detainees for war crimes. The original “military commission” system set up by President Bush was struck down by the Supreme Court, and the new system created by Congress in 2006 has been plagued by troubles. Military judges have thrown out the charges in the only two prosecutions that presently are being pursued under the new commission system.
Khadr was scheduled to go on trial on charges of killing a U.S. serviceman in Afghanistan in 2002, but the military commission judge in the case dismissed the charges, concluding that Khadr had not been officially determined to be an “unlawful enemy combatant.” Military prosecutors then appealed the case to the special appeals court set up to review war crimes proceedings — the CMCR.
Khadr’s case has been in the briefing stage, with all briefs on the prosecutors’ appeal due by no later than Aug. 17, with a hearing set ten days after the last brief is filed. The defense motion on Thursday, however, asked that the case be put on hold “until such time as the applicable statutory and regulatory requirements are satisfied.”
The case has been assigned to Navy Captain John W. Rolph, Army Colonel Paul Holden and Air Force Colonel David R. Francis. Those judges were named to the Khadr panel on July 11 by Captain Rolph himself, in his capacity as “Acting Chief Judge” of CMCR.
The defense challenge made four separate claims that the appeals court judges have not been lawfully appointed:
First, it argued that the 16 judges selected to sit in three-judge panels on the CMCR were named by the Deputy Defense Secretary, Gordon England, but federal law and regulations specify that only the Defense Secretary, Robert Gates, has the authority to name those judges.
Second, if the military contends that Gates delegated the task to England, no such delegation is allowed under federal law and regulations.
Third, even if the task could be delegated by Gates, that would be a change in federal regulations that cannot take effect until 60 days after notice is given to the Senate and House Armed Services Committees — and, apparently, that was not done.
Fourth, under military regulations, only the Chief Judge of the CMCR can name judges to the three-member review panels, and there is no such thing, yet, as a “Deputy Chief Judge” or “Acting Chief Judge.” While the position of Deputy Chief Judge was created on June 11, and Rolph was named to that post, the defense motion argued that this had to be cleared for 60 days with the congressional committees, and was not. “CAPT Rolph, therefore, has no authority to carry out regulatory functions of the Chief Judge,” the motion contended.
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