Military prosecutors appeal Khadr case
War crimes prosecutors at the Pentagon have filed an appeal to the new Court of Military Commissions Review, seeking to reinstate charges against a young Canadian detained at Guantanamo Bay, Omar Ahmed Khadr. Various news organizations quoted Pentagon officials as saying the appeal was filed on Wednesday.
A military judge at Guantanamo dismissed the charges against 20-uear-old Khadr on June 4, finding that a military commission had no jurisdiction over the case because Khadr had not been formally determined to be an “unlawful enemy combatant.” The judge has since refused to reconsider that decision, leaving prosecutors to file their appeal.
The review court does not yet exist, but a Pentagon spokesman was quoted as saying that its members would be sworn in next week. There is no timetable for processing the appeal, a Pentagon spokesman told reporters.
Has it never occurred to anyone to enquire where this so-called Court of Review is, when (or if) it was established, and who the persons are appointed to it? And has no one wondered, how an appeal can have been timely filed, when the court to which it was referred does not yet exist, the members have not been appointed, and no rules have been established? What are the requirements for membership? How can impartiality be assured when the judges are selected after the appeal? What are the rules for review?
It seems we are beginning to accept the irregularity of everything the Pentagon does.
Comment by Aussielaw — July 8, 2007 @ 4:42 am
It is hard to imagine a proceeding more ad hoc and irregular than this one.
There are two pending trial court cases. The only appeal pending will resolve both. The prosecution and trial court judges and appellate court judges will all be appointed by the same people who will also draw up the rules. The appellate court rules and staff will be put in place after the only appeal in the entire system is lodged.
Why not just save us all the charade of a system that can’t have any legal credibility anyway, and simply have Secretary of Defense Gates rule in favor of the prosecution now?
The only way that I can imagine that any semblence of credibility could be retained in the appellate system at this point would be to designate an existing appellate body in the courts-martial system as the ex officio appellate body for this tribunal and to retain existing courts-martial appellate rules.
Comment by Andrew Oh-Willeke — July 8, 2007 @ 6:07 pm
Aussielaw and Andrew Oh-Willeke utter their condemnations out of ignorance or predisposition, or both. In fact, the Court of Military Commission Review is not ad hoc; it is a creation of the Military Commissions Act of 2006, it has already issued rules and standards of practice, and the judges for the court have already been identified. Obviously, these are recent developments; since no appeal had been filed until last week, there was hardly any need before then to publicize these formalities. Many of Aussielaw’s questions have already been answered by the MCA and the CMCR’s rules. The Penatagon spokesperson is wrong, by the way: the CMCR has thirty days from the date the appeal was filed with the court (yes, filed with the clerk of that court) on July 4th.
Comment by ronsaathoff — July 9, 2007 @ 8:41 am
Ronsaathoff, I am entirely open to be shown wrong.
At the time the decisions being appealed were rendered, the press and this blog widely reported that there was no appellate body in place, and the press is not known for ignoring press releases to the contrary. Do you have a link showing that the rules and judges were in place before the decisions being appealed were decided? Coverage hear at SCOTUS blog has appeared to indicate that the rules change every time the D.C. Circuit has a new hearing, but I’m always open to being shown otherwise.
I don’t think that anyone seriously disputes or claims that the MCA doesn’t provide for a Court of Military Commission Review. But, the devil is in the details, and if the details are created post hoc, then the Court is ad hoc.
Comment by Andrew Oh-Willeke — July 9, 2007 @ 2:37 pm
AOW: I haven’t seen the CMCR rules posted anywhere, but if you’re interested, you can write or call the court at:
Clerk of Court, Court of Military Commission Review
One Liberty Center
875 N. Randolph Street
Suite 8000
Arlington, VA 22203
703-696-6640
The rules are almost identical to those employed by the various service courts of criminal appeals, so if the rules are “post hoc” (I don’t see how they could be otherwise, since Congress enacted the MCA in 2006), they are certainly not “new” or unique. Post hoc ergo ad hoc — I’m not I understand the logic or force of that argument.
In any event, the CMCR issued its rules with an effective date of June 28, 2007, before the prosecution filed its appeal. Thus the idea that the CMCR is some kind of phantom or nonexistent court is wrong.
Comment by ronsaathoff — July 9, 2007 @ 5:13 pm