Government opposes detainee appeal
on Oct 22, 2007 at 12:57 pm
In a two pronged legal maneuver, the Justice Department has argued that no federal court has authority to hear any war crimes case against a Guantanamo Bay detainee until after a military commission has issued a final ruling — presumably, either a conviction, an acquittal, or a final dismissal of charges. In arguments that appear also to apply to the question of whether any pre-trial appeal may be taken to the Supreme Court, the Justice Department on Friday urged the D.C. Circuit Court to dismiss the first appeal to a civilian court in a war crimes case under the Military Commissions Act of 2006 — the case of Omar Ahmed Khadr (Khadr v. U.S., Circuit docket 07-1405).
Khadr is attempting to appeal to the Circuit Court a ruling last month by the U.S. Court of Military Commission Review that overturned a military judge’s dismissal of murder charges against Khadr, a 21-year-old Canadian who was taken prisoner in Afghanistan when he was 15 years old. The CMCR told the military judge at Guantanamo to consider whether Khadr is to be designated an “unlawful enemy combatant” and thus eligible to be tried for alleged war crimes.
In opposing an appeal at this point (in a brief that can be found here), the Justice Department contended that the MCA itself does not allow any appeal to a civilian court until there is a “final judgment” by a commission, and that has been reviewed by higher Pentagon officials. In a second line of argument, the Department also relied on the general court-stripping provision of the MCA, which denies federal courts at any level the authority to “hear or consider any claim or cause of action whatsoever” about the prosecution, trial, or judgment of a military commission. Both arguments could be invoked against any attempted pre-trial appeal to the Supreme Court, it appears.
Khadr cannot appeal now, the Department contended, because he has not been convicted, and, in fact, the military judge presiding over the commission that is to try him has not yet “conclusively determined” that the commission has jurisdiction to go forward with the trial. The latter point will be explored by the judge at Guantanamo on Nov. 9. All that has happened to this point, the Department argued, was that the military appeals court “has simply remanded the case to the military commission for further proceedings; that order is unquestionably not a final judgment.”
The brief also disputed the argument by Khadr’s lawyer that the military judge’s June 4 order dismissing the charges was not a final judgment. That “borders on the frivolous,” the brief said. The dismissal order has been overturned by the CMCR “and is no longer in force.” Moreover, it added, that ruling was in Khadr’s favor, so he cannot appeal it.
Khadr’s military attorney, Navy Lt. Cmdr. William Kuebler, has issued a press release disputing the government’s arguments. It can be found here.
