Judge refuses to stop war crimes trial

Removing what probably is the last potential barrier in civilian courts to the opening of the first war crimes trial at Guantanamo Bay, Cuba, on Thursday morning, a federal District judge in Washington refused on Wednesday to postpone those proceedings. In a three-page order, U.S. District Judge John D. Bates ruled that he had no jurisdiction to hear what he called a request for “substantial judicial action” against a Pentagon-sponsored trial before a military commission.  The trial is of a young Canadian, Omar Ahmed Khadr, on charges that include murder of a U.S. serviceman in Afghanistan when Khadr was 15 years old.  (The judge’s order can be found here.)

In July, relying upon the Supreme Court’s vote in late June to hear a constitutional test of the legal rights of Guantanamo detainees to test their captivity, Judge Bates had refused a government plea to dismiss one of the detainee habeas cases pending before him (Al Maqaleh v. Gates, 06-1699).  On Wednesday, however, the judge drew what he called a “stark contrast” between that order, issued only to “preserve the habeas petition,” and the order that Khadr’s lawyers were now seeking. The habeas petition by Khadr involves a sweeping constitutional challenge to the Pentagon’s authority to try him at all before a military commission. His lawyers wanted the trial delayed until the Supreme Court could rule on detainees’ rights. To grant that relief, the judge remarked in his order Wednesday, “would render a significant change to the status quo.”

The judge also made clear that his lack of jurisdiction to issue the stay order was based upon the D.C. Circuit Court’s ruling in February that Guantanamo detainees have lost all right to file habeas petitions in federal court. That is the very decision the Supreme Court will review this Term, with a hearing now set for Dec. 5.  Judge Bates said that he had to follow the Circuit Court ruling until it either was overruled by an en banc Circuit Court or by the Supreme Court.

Furthermore, the judge said that he also was relying upon the fact that the D.C. Circuit Court had twice before refused Khadr requests to delay his trial before a commission at Guantanamo.  The latest of those denials by the Circuit Court came on Tuesday.  Like the Circuit Court in issuing that latest denial, Judge Bates said that Khadr’s lawyers had not satisfied the legal burden they face for an order to stop the commission proceedings.

At those proceedings on Thursday, the military judge that is to preside over a trial of Khadr is to weigh whether to declare him to be an “unlawful enemy combatant” — a finding necessary to give the commission the authority to proceed to a trial.

News accounts based on pre-trial activities at Guantanamo suggested on Wednesday that the Khadr proceedings could soon be surrounded in a mass of legal complexity. Khadr’s lawyers have been blocked by the presiding judge from making a wide range of legal challenges to the combatant status finding, but military legal sources were quoted as saying that they expected new issues to arise over the so-far-untested trial process.