Analysis: The Court and war crimes appeals
on Apr 19, 2008 at 12:34 pm
Analysis
No one doubts that the Supreme Court would have the authority to review a verdict of guilt for war crimes, if the U.S. military commission system at Guantanamo Bay ever produces such a conviction. But there is an open issue whether the Justices could examine the working of that trial system before a trial actually takes place. A preliminary issue over the initial launch of a commission trial lies behind a case the D.C. Circuit Court is pondering right now, and its outcome may well affect the power of pre-trial review not only at the Circuit Court level, but in the Supreme Court, as well.
In Khadr v. U.S. (Circuit docket 07-1405), the Circuit Court has under advisement a claim by a young Canadian who is detained at Guantanamo — Omar Ahmed Khadr — that the Circuit Court should step in now to decide whether he can be tried by a military commission. The government, in response, contends that the Circuit Court has no authority to act until there is a trial and a guilty verdict, and the verdict has been upheld at the military commisson appeal layer.
Three judges of the Circuit Court held a hearing last Tuesday on the government’s motion to dismiss Khadr’s appeal for lack of jurisdiction at the pre-trial stage. The transcript of that hearing is now available, and can be downloaded here. The hearing ran for less than a half-hour, but the exchanges show how complex the jurisdictional issue is. The overall impression from the transcript is that at least some of the judges were skeptical of their authority to act at this juncture. (NOTE: Readers should note that references in the transcript to the Supreme Court’s “Hondon” decision mean Hamdan v. Rumsfeld in 2006, and to the Court’s “Queren” decision mean Ex parte Quirin in 1942.)
Sorting out the issue, and why it arises now, can best be done chronologically.
Khadr was captured on the battlefield in Afghanistan in 2002 when he was 15 years old. He has been at Guantanamo since shortly after his capture. He has been ruled an “enemy combatant,” and has been charged with war crimes for a combat incident in which a U.S. soldier was killed.
More than ten months ago, a military commission judge at Guantanamo dismissed the charges against Khadr, concluding that, while he had been ruled an “enemy combatant” by a Pentagon panel, he had not been found to be an “unlawful enemy combatant” and that, without this finding of illegality, he could not be tried. On an appeal by the government, the U.S. Court of Military Commission Review (CMCR) last September overturned in part the militry judge’s ruling, and told the military judge that he had the authority, himself, to declare whether Khadr’s status was that of an “unlawful” enemy. The judge has since been proceeding with pre-trial matters, but a scheduled trial date of May 5 has now been cancelled..
Khadr is now contesting the CMCR’s ruling in his appeal to the Circuit Court, filed last Oct. 9. He argues that, under the Military Commission Act of 2006, a final ruling has been issued in his case so he is entitled to appeal to the Circuit Court to test whether he can be tried based on a finding of illegal enemy status by the same commission judge due to try him.
The Justice Department then moved to dismiss Khadr’s appeal, arguing that there is no final judgment of conviction in his case, so the Circuit Court has no jurisdiction at this point.
The Circuit Court, in an order in January, said it would hold a hearing on Khadr’s appeal, but confined it to the question of whether it has jurisdiction. That is the hearing that was held last Tuesday. The three judges focused closely on the actual language in the Military Commission Act about appeals jurisdiction. As one judge put it, “So, under sub-A of 905B [in the Military Commission Act], should we not think Congress was contemplating a commission order that had in it the findings and sentence, everything you could possibly have in it before we would be getting it on final review?”
Should the Circut Court wind up deciding that no appeal may be pursued until a military commission has produced “everything you could possibly have in it”, that would not be binding on the Supreme Court’s interpretation of its own jurisdiction under the Act. But it might well persuade the Justices that they, too, must wait.
Since the Act gives the Supreme Court discretion to review any ruling by the Circuit Court on military commission matters, it appears that the government argument over lack of a final commission conviction would also be made to try to block Supreme Court review of pre-trial issues.
There is no deadline for the Circuit Court to rule on the jurisdictional issue.
Meanwhile, the young detainee’s lawyers have pending before the Circuit Court another appeal (docket 07-1156), urging that Court to find that he cannot be tried at all because, as a “child soldier,” a trial would violate international law and treaties. The same “child soldier” argument is also pending as a pre-trial challenge before the military commission judge at Guantanamo.
