New wrangling over war crimes appeals court
on Jul 27, 2007 at 11:45 pm
Documents disclosed by the Pentagon on Friday brought further into the open a controversy over the authority of the judges on the new military appeals court that is preparing to review its first case in a war crimes prosecution. The Navy captain who has been serving as the “deputy chief judge” of the U.S. Court of Military Commissions Review indicated that he had sought an answer from higher Pentagon officials about the status of his appointment, but had received no answer. (UPDATE: He got an answer on Wednesday, when prosecutors filed a document fully defending the composition of the Court; see below. There is a delay in public access to documents filed in that Court, under a policy adopted by the Court’s clerk.)
Navy Captain John W. Rolph has been facing a challenge from lawyers for Omar Ahmed Khadr, the first detainee involved in a case before the CMCR (U.S. v. Khadr, docket 07-1), who argued on June 19 that Rolph had no authority to make appointments to the Court’s reviewing panels and that his own position as “deputy chief judge” or “acting chief judge” was in legal doubt. (The Khadr challenge was discussed in this earlier post.)
Last Monday, four days after that challenge was filed, Captain Rolph issued a “disclosure” concerning the challenge. (This document can be found here.) He said that, on July 11, he had inquired whether Defense Secretary Robert Gates had approved in writing the appointment of Rolph as deputy chief judge and the other members of the CMCR. He noted that the Military Commissions Act of 2006 required the Secretary to make those appointments — a point that Khadr’s lawyers also had made in their challenge. “If it is not too much trouble,” Rolph said, quoting from an e-mail he had sent, “it would be useful for the CMCR to have that documentation in hand for the Court’s historical record, and in case subsequent validation of our appointments is required.”
Rolph added that he had “received a reply on the same day” from the Pentagon’s Office of General Councel “stating that they were working on the issue.” But, he said, he “did not receive any guidance or further documentation.”
On Wednesday, Khadr’s lawyers sought further disclosures, asking for complete copies of the e-mails Rolph had quoted from or paraphrased in his disclosure document. “Absent complete disclosure, it will be impossible for the parties to have a ‘fair opportunity to explore the impact’ of the communications and to develop an appropriate record for reivew…, including the precise identity of the official with whom the communications occurred.” (The request can be fouund here.)
In challenging Captain Rolph, Khadr’s counsel had argued that, under military regulations, only the CMCR’s Chief Judge could select from among the judges on the Court the ones who will sit on its three-member review panels, but that Rolph, who made the appointments in Khadr’s case as Acting Chief Judge, did not yet have a legal appointment to that post. Rolph included himself on the Khadr panel.. The challenging document also contended that Defense Secretary Gates had not named the 12 Court members and had not legally delegated that task to a subordinate, Deputy Secretary Gordon England, who did name those members.
Meanwhile, on Friday, the prosecution in Khadr’s case answered the challenge. (The brief argung for a denial of the challenge can be found here.) Prosecutors noted that Secretary Gates had issued a general delegation of shared authority to Deputy Secretary England last February. allowing him to exercise all of the authority that the Secretary is given by law. The fact that the Military Commissions Act itself does not specify that the Deputy Secretary is authorized to make the CMCR appointments in place of the Secretary is of no consequence, in view of the general delegation, the prosecutors contended.
“It is well established that the Secretary of Defense may delegate any authority he has under the law, except where the law specifically prohibits such a delegation,” prosecutors added. “The appointment of the CMCR was entirely proper.”
The prosecution document also defended the action of Judge Rolph in assigning the members of the panel — including himself — to review Khadr’s case. He made the appointments in the absence of the Chief Judge, and Rolph’s designation as Acting Chief Judge was validly made by Deputy Secretary England, the prosecutors said. They urged the Court to deny the challenge outright, and to continue with the previously set briefing schedule.
The issue before the CMCR in Khadr’s case is whether a military commission judge was wrong in dismissing war crimes charges against the 20-year-old Canadian who is now being held at Guantanamo Bay, Cuba. The prosecution is appealing; it filed a supplemental brief on the merits on Monday; Khadr’s lawyers are to file a response brief by Aug. 13 and any prosecution reply brief is due Aug. 17. Khadr’s lawyers had asked that the briefing schedule be suspended until the challenge to the CMCR appointments had been resolved.
