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Limit on review of war crimes issues

The D.C. Circuit Court, giving the Pentagon a significant victory as it prepares war crimes trials, ruled on Friday that the Court has no authority to hear challenges to those trials until after there is a final conviction or a not-guilty verdict that is then upheld by a top Pentagon official and, for a conviction, is then upheld by a military appeals court.

The ruling by a three-judge panel came in the case of Omar Ahmed Khadr, a young Canadian who was seeking to challenge the authority of a “military commission” to go forward with his trial on terrorism charges, including a charge that he killed an American soldier during a skirmish in Afghanistan six years ago.

The ruling in Khadr v. U.S. (Circuit docket 07-1405) marked the first time that the Circuit Court had spelled out the authority Congress gave it as the first line of civilian court review of military commission trials.  The opinion can be read here.  Under the Military Commissions Act of 2006, Khadr has a right to ask the Supreme Court to rule on his challenge.

NOTE TO READERS: The Circuit Court held a hearing in this case on April 15 and the opinion very likely was prepared before the Supreme Court on June 12 ruled that Guantanamo detainees have a constitutional right to file habeas petitions challenging their detention.  Habeas rights were not immediately at issue in Khadr’s case at this point. While the Supreme Court decision did not deal directly with habeas challenges to war crimes charges or trials, defense lawyers for detainees like Khadr who face such charges are expected to attempt to use the Justices’ June 12 decision to mount challenges to the commission process, including the jurisdiction of those commissions — the issue that was before the Circuit Court in Friday’s ruling.

Khadr is pursuing a number of challenges to the military commission process and to his own impending war crimes trial. The Circuit Court dealt with one of the challenges Friday: his claim that a military commission has no authority to try him because he has not been found, by a proper process, to be an illegal “enemy combatant.”  Under federal law, no detainee can be tried on war crimes charges unless he has first been designated an unlawful enemy.

The appeals court that Congress set up within the military commission system — the U.S. Court of Military Commission Review — rejected this challenge last September, concluding that the commission that is to try Khadr has the authority on its own to decide if he is an unlawful combatant.  The military judge at Guantanamo Bay has been moving the case toward a trial. Friday’s Circuit Court ruling rejected Khadr’s appeal from the CMCR decision.

The Circuit Court’s Chief Judge, David B. Sentelle, wrote the new decision, joined by Circuit Judges Janice Rogers Brown and Judith W. Rogers.  The Court ruled that it had no jurisdiction because there was no “final judgment” to review

The panel rejected all of the arguments by Khadr’s counsel on the Circuit Court’s authority to step in now.

First, it turned his aside his claim that, because a military judge had dismissed all charges but then the CMCR revived them in response to a government appeal, there was now a final judgment — the judge’s order of dismissal.  Since the military judge’s dismissal order had now been overturned by CMCR, the Circuit Court said, the dismissal ruling “lost all legal effect.”

Second, it concluded that the CMCR decision was not a final judgment open for review by the Circuit Court.  The CMCR simply had remanded the case to the commission judge to determine whether Khadr was an unlawful enemy, the panel said.  The judge has decisions to make on remand, it noted.

Third, it ruled that the now-overturned dismissal order was not, and could not have been, reviewed by Pentagon officials, specifically the convening authority in charge of war crimes proceedings.  The convening authority’s power of review must await a guilty verdict and a sentencing by a military commission, the Circuit Court said.

In the final section of the ruling, the Circuit Court declined to rule on the government argument that a federal court rule allowing some pretrial decisions to be appealed before trial does not apply to military commissions cases. But, it added, even if that notion applied to commissions, Khadr could not take advantage of it. What is at stake here, it said, is only a pretrial jurisdictional decision — not the kind that can be appealed immediately.

The panel said it did not share Khadr’s overall argument that there was a public interest in ensuring that the commission process was legal and legitimate. Any such public interest, it commented, “does not warrant our interruption of this criminal proceeding just because it is a military commission.”  It will have an opportunity to do so after the process has run its course, the panel said.