UPDATE Tuesday a.m.  The Khadr petition for mandamus has now been docketed as 10-5691.  Filed with it was a motion to expedite, not previously linked; it can  be found here.  The stay application is docketed as 10A134.

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Attorneys for a young Canadian national, Omar Khadr, who has been held by the U.S. military since he was 15 years old, on Monday asked the Supreme Court to block his war crimes trial, scheduled to start Aug. 10 before a military commission at Guantanamo Bay, Cuba.   The new filing sought alternative actions by Chief Justice John G. Roberts, Jr., and by the full Court.  (The document includes a mandamus petition to the full Court, with an attached stay application to the Chief Justice as alternatives.)

The case appears to be the first challenge to reach the Court to the military commission system as it was reconfigured last year.

Khadr has been under a war crimes charge for five years, but delays have put off the trial until the currently scheduled start a week from Tuesday.  The charges of murder, attempted murder and other crimes, based mainly on a firefight with U.S. soldiers in Afghanistan in July 2002;  he was accused of throwing a grenade that killed a U.S. soldier.

More than four months ago, Khadr’s lawyers filed a constitutional to the 2009 commission law, contending that it is beyond Congress’s power to establish a military commission system that would try only non-citizens.  Because of that claimed constitutional defect, his lawyers argued that he should not have to stand trial at all before such a panel.

At that time, his lawyers also sought to block a procedural hearing that was scheduled at Guantanamo.  Since his challenge was fully briefed, by mid-April, the Circuit Court has taken no action at all.  The evidentiary hearing has gone ahead, and the trial is now imminent, so his lawyers decided to try to seek relief from the Supreme Court.

The stay application (filed Monday afternoon but not yet docketed) was submitted to the Chief Justice, as Circuit Justice for the D.C. Circuit.  It asked that the trial be postponed until after the Circuit Court rules on Khadr’s challenge.  To the full Supreme Court, Khadr’s counsel filed a plea to require the Circuit Court to go ahead and rule on the constitutional challenge and, in the meantime, to put the commission trial on hold until that challenge can be decided — either by the Circuit Court, or by a petition to the Supreme Court.

The case, the lawyers told the Chief Justice, “raises issues of the greatest public importance.” If the challenge ultimately succeeded, the application said, all commission trials would be barred, not just Khadr’s.  “There is thus an imperative need to decide this issue as soon as possible, not only to vindicate [Khadr's] position but to avoid the possibility that all intervening military convictions will be overturned in toto when this Court ultimately considers [Khadr's] argument.”  If the trials go forward now, it is likely to be several years, his lawyers contended, that the Supreme Court could reach the cases following convictions and lower court appeals.

Khadr’s underlying constitutional argument is based on the history behind the Constitution’s Define and Punish Clause — a grant of power to Congress “to define and punish…offenses against the law of nations.”  Since the Revolutionary War, his lawyers have contended, military trials both in the regular court-martial system and in military commissions set up under the “laws of war” have tried citizens as well as non-citizens.  Under the current Military Commissions Act of 2009, however, prosecution is limited to non-citizens.

Relying in part on the Geneva Conventions, the challenge contends that military tribunals generally must follow the practices of regular court-martials, and those have never been limited to non-citizens.

In the D.C. Circuit, Khadr’s challenge is docketed as 10-1067.  The request there is for writs of mandamus and prohibition to stop the military trial until after the Circuit Court rules on the constitutional claims.  There is also pending a stay application.  Since briefing was completed on April 19, the Circuit Court panel has taken no action on either plea.

Posted in Detainee Litigation