Plea to block first war crimes trial

Lawyers for a Guantanamo Bay detainee — in a possible prelude to a dispute before the Supreme Court — asked the D.C. Circuit Court on Wednesday to delay the start of the first war crimes trial before a U.S. military commission at the Navy base located in Cuba. That trial, in at least its first stage, is now set to begin next Thursday for Omar Ahmed Khadr, who has been accused of killing a U.S. serviceman in Afghanistan when Khadr was 15 years old.

The emergency motion for a stay (found here) is aimed, first, at a hearing that a military judge will hold to decide whether Khadr is an “unlawful enemy combatant.” The 21-year-old Canadian has filed an appeal to the Circuit Court (docket 07-1405) arguing that the judge has no authority to make that decision. The stay motion also implicates Khadr’s potential trial, because a finding that he is an “unlawful enemy combatant” would set the stage for the commission to go ahead with the trial. Khadr’s lawyers contend that the commission has no authority to try him.

Neither should go forward, the new motion argued, until the Circuit Court rules on the pending appeal. He will be “irreparably injured” if the case moves forward, the motion argued, because he is at risk of being convicted of war crimes by a flawed tribunal. “These are not injuries that can be redressed after the fact,” the motion asserted.

The pending appeal to the Circuit Court tests a ruling in September by the new U.S. Court of Military Commission Review, giving the judge presiding over the commission the authority to decide Khadr’s status. and thus to clear the way for the actual trial.  The appeal also argues that the CMCR was not legally appointed.

Lurking in the background of Khadr’s new legal challenge is a request by the Bush Administration to dismiss Khadr’s appeal, on the theory that the Circuit Court has no jurisdiction over military commission cases until they are over.  (The government’s argument also appears to apply to any jurisdiction for the Supreme Court before a commission trial is completed.)

Besides moving on Thursday to delay the proceedings at Guantanamo, Khadr’s lawyers also filed a response to the government motion to dismiss, arguing that the Pentagon has told Khadr he had a right to appeal and that federal law governing commissions guarantees that right.

In challenging next Thursday’s proceeding, Khadr’s lawyers told the Circuit Court that his status will be determined without his lawyers having any chance to seek information the government has not yet provided, with his lawyers under an obligation to challenge a finding that he is an unlawful combatant before they see any government evidence, and with the judge having ruling that “he will not entertain arguments based on internatiional, constitutional, or criminal law.”

The government, the motion contended, will suffer no harm if the proceedings are delayed.  “There is no time sensitivity,” it argued, since he will remain at Guantanamo. In fact, the government waited three years before charging him, the motion noted.  There should be no “rush to try” him, his lawyers argued, before resolving key legal questions about whether he can be tried at all.

In opposing the government motion to scuttle his appeal to the Circuit Court for lack of jurisdiction, Khadr’s lawyers argued that the maneuver represents “an abrupt and unexplained about-face” by the government, since the Pentagon has assured him personally that he had a right to appeal.  Moreover, the opposition brief said, the Military Commission Act is clear that he had a right to appeal to challenge rulings that may send him into an unlawful trial.