Government appeal on war crimes goes forward

The Bush Administration’s effort to revive war crimes charges against two Guantanamo Bay detainees remained intact after the new military appeals court refused to dismiss the appeal. The first case before the U.S. Court of Military Commission Review involves a young Canadian, Omar Ahmed Khadr, but the outcome will also affect Salim Ahmed Hamdan. The two are the only prisoners remaining at Guantanamo who have been chargedwith war crimes, but military judges have thrown out both sets of charges for flaws in the charging process. The government is appealing to the CMCR to reinstate the accusations.

Khadr’s case is the first one to reach the CMCR (docket 07-001). His attorneys moved to have the government appeal dismissed, leveling a variety of complaints — that the new Court’s rules were not validly adopted, that the appeal was filed too late, and that the three judges assigned to hear the government appeal were not validly appointed. The first two complaints were included in a motion to dismiss, the third in a motion to abate the appeal proceedings.

In an opinion released on Wednesday, found here, the CMCR denied the motion to dismiss, thus validating that Court’s rules and keeping the government appeal intact. The ruling did not address the merits of the government’s argument for reinstating the war crimes charges.

In the body of that ruling, the Court said that it had made a separate ruling on the motion to abate and had upheld the appointment of the judges to the Court and to the individual panels, including the one hearing Khadr’s case. That separate ruling, however, has not yet become available.

Detainee Khadr is also involved in the pending Supreme Court cases testing whether Guantanamo detainees have a legal right to pursue habeas challenges to their detention and continued confinement. His lawyers have filed a brief in the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). The outcome of those cases could affect his status as a detainee. The issue of the war crimes charges that were leveled against him is not directly a part of those cases, however.

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