The U.S. Court of Military Commission Review reinstated charges against alleged Canadian al Qaeda member Omar Khadr. I’ve previously blogged about the charges against Khadr here.
Charges were previously dismissed by the Military Commission Judge, Colonel Peter Brownback. Colonel Brownback reasoned that he lacked jurisdiction to hear Khadr’s case because the CSRT failed to determine “unlawful enemy combatant” status, it merely made an “enemy combatant” determination.
The Government’s First Point
I attended oral arguments in this case back in August where the government presented two jurisdictional arguments. First, that Colonel Brownback erred by determining that the C.S.R.T. determination of enemy combatant simplicitir did not satisfy the jurisdictional predicate required by the Military Commissions Act. Instead the government argued that the determination should look not only to the classification made by the C.S.R.T. but also to the President’s determination that all members of the Taliban and al Qaeda are “unlawful combatants” and a similar determination by the then Deputy Secretary of Defense. The government also urged at oral argument (transcript here) that the court consider the C.S.R.T. determination in conjunction with the findings of fact made by the C.S.R.T. in attachment R-1.
The Court of Review’s Decision
Regarding the government’s first argument the Court of Review found that Colonel Brownback’s conclusion was correct and that a C.S.R.T. determination alone is insufficient to establish criminal jurisdiction over Khadr. In the words of the court the C.S.R.T. never discusses the “issue of ‘lawful’ or ‘unlawful’ enemy combatant status.”
“Mr. Khadr’s 2004 C.S.R.T. employed a less exacting standard than that contained in the M.C.A. for establishing ‘unlawful enemy combatant’ status. A detainee could be classified as an ‘enemy combatant’ under the C.S.R.T. definition simply by being a ‘part of’ the Taliban or al Qaeda, without ever having engaged in or supported hostilities against the United States or its coalition partners. While such a classification would certainly be appropriate for authorizing continued detention during ongoing hostilities, it does not address in any way the ‘lawful’ or ‘unlawful’ nature of the detained combatant’s belligerency under the M.C.A.”
In an interesting comment the court finds, citing to Protocol I, Art 4(b) “Congress never stated that mere membership in or affiliation with the Taliban, al Qaeda, or associated forces was a sufficient basis for declaring someone to be an ‘unlawful enemy combatant’ for purposes of exercising jurisdiction over that person. In the M.C.A., military commission jurisdiction is limited solely to those who actually ‘engaged in hostilities or who…purposefully and materially supported hostilities…” While Khadr’s C.S.R.T. may have adequate information to make such findings against him, it could not have done so based on a definition which was established two years later.
The Government’s Second Point
The Government futher contended that even if the Court of Review were to find that the C.S.R.T. was insufficient to establish the jurisdictional predicate, Colonel Brownback or any other military commission judge could make such jurisdicitional findings. Lyle Denniston at SCOTUSBlog refers to this as broadened powers . I slightly disagree with this characterization, and perhaps I’m making an overly picky point (it was merely listed in the title of the post) but the government’s argument was that this is a power that the M.C.A. grants to the military commission judge as an “other competent tribunal” and is consistent with procedures found in courts martial, I’m not sure that I’d characterize it as a broadened power (but it has much broader implications which I’ll detail below).
The Court of Review’s Decision
Clearly the government’s arguments are in the alternative, as pointed out by Judge Francis in the transcript record at Page 14, Line 10. The court thus rejected the government’s first point and ruled in favor of the government’s second point. The court found that the government should have been afforded the opportunity to present evidence in support of its position on jurisdicitional issues and that the military commission had the power to consider its own jurisdiction. Making a point of this the court cited to arguments made by Captain Keith Petty at the military commission hearing in Guantanamo. The court stated:
The assistant prosecutor then specifically listed the evidence the Government would present in support of Mr. Khadr’s “unlawful enemy combatant” status, which inter alia, included a videotape of Mr. Khadr ‘engaged in unlawful combat activities including wearing civilian attire and making and planting roadside bombs,’ admissions made by Mr. Khadr, and other statements that implicated him in conducting such unlawful activities.
The points made here by the court, by the government and never contested by the defense are that evidence clearly exists to establish that Mr. Khadr was an unlawful enemy combatant, the question is whether that determination was properly made and who may make that determination. The court finds the determination was not properly made, but the military commission judge may make such a determination.
First, the court highlights a question posed by Judge Brownback, which careful readers should also wonder about: Did “anyone [think] about going back and doing new [combatant status] review tribunals.” I am certain that the deficiencies in the C.S.R.T. process were well known to the Defense and Prosecution (but remedying them was not their job), and those deficincies were made clear to political appointees within the administration. The jurisdictional problems we are reading about could have been remedied by creating a panel perhaps named a “Military Commission Jurisdiction Panel” or something similar. This panel would be separate from the C.S.R.T., and would fill the role of an “other competent tribunal” to make jurisdictional decisions as set forth in the M.C.A. Why the administration allowed the military commission process to flounder through appeals like this —especially when military commissions are supposed to be the centerpiece of the President’s counterterrorism policies is anyone’s guess. One can chalk it up to incompetence, hubris, or internal disagreements amongst members of the administration, but no one can argue that they did not see this coming.
In the short term, this issue is certainly headed to the D.C. Circuit, where according to the M.C.A. the government has an appeal as of right and the defense must petition for the right to be heard. Assuming the D.C. Circuit decides to take the case and upholds the Court of Review or if they refuse to hear it we will likely see charges filed against at least 7 more detainees (the remaining 7 originally charged under the defective pre-M.C.A. process.)
More importantly though, in the short term we will see an interesting twist (and one which the government conceded at oral argument) to the process. If, as the Court of Review has held, the military commission can make a jurisdictional determination then Khadr will have a right of jurisdictional discovery, and with that right he also will have the right to dispute findings that he is an unlawful enemy combatant. Thus, those who are, in the government’s eyes MOST culpable (e.g. those worthy of criminal charges) are now extended greater procedural rights than those who are “merely” detained as unlawful enemy combatants. The administration’s failure to act on a known problem has resulted in something of a quandry for them, expanding the rights of “the worst of the worst.”
Second, the easily identified jurisdictional problem is not unique, there were and are other issues the administration could have easily rectified. For example, the Court of Review ruled earlier this week that it was properly constituted (e.g. ruled on its own jurisdiction and composition). The issue was whether the Deputy Secretary of Defense, rather than the Secretary of Defense could establish the panel (the M.C.A. states that the Secretary of Defense must establish the panel). So, if the military commissions process is truly a priority for the administration this seems easily rectifiable, have the Secretary of Defense sign a memorandum establishing the panel or sign a memorandum stating that the Deputy Secretary of Defense was acting on behalf of the Secretary of Defense, instead they let it bounce around in the courts. The fact that the Deputy Secretary of Defense was acting on behalf of the Secretary of Defense may seem obvious to some readers, however as a matter of statutory construction it was not a clear cut issue (clearly, as it had to be briefed and argued and will likely be argued again at the D.C. Circuit). Another issue which was obvious to many and not rectified while the rules were promulgated was the requirement that the panel (the equivalent of the jury) make a sentencing determination. In the abstract this seems to make sense, however when a plea is worked out (as in Hicks) it was a glorious waste of time, effort and military resources to fly a panel of military members down so they could make a sentencing determination, only to have it immediately vacated by the judge in favor of the plea agreement.
Why do all of these issues exist? Who in the administration is responsible for remedying problems and ensuring that the military commission process proceeds without easily fixed obstacles? Don’t look at the JAGs, both the prosecution and the defense JAG teams were cut out of the development of the Manual for Military Commissions (Rules of Procedure and Evidence). As such the prosecution team is wrongly made to look like fools, carrying water for the administration by making arguments on behalf of the commissions and the propriety of their procedures. In my opinion that’s a job for the administration. The JAG prosecutors just want to get to trial and have their evidence heard publicly. Colonel Davis (the Chief Prosecutor) has publicly stated he just wants to get into the courtroom to hold open public trials. He has repeatedly stated that he does not intend to go into closed session unless forced to do so. That sounds to me like the kind of trial the administration would want to have, why they are not clearing the procedural hurdles is a mystery. Moreover, the defense team is suffering through this administration ineptitude. Rather than being able to defend their case in court on the evidence they are instead left to fight their battles in the newspapers in Australia, Canada and here at home.
If the administration really takes the military commission process seriously they should find some trusted appointee to take charge of the procedural issues and keep this process on track. That does not mean find an appointee who will breathe down the neck of the prosecution or defense, that’s clear undue command influence. However, rectifying procedural errors are clearly tasks an administration lawyer could undertake. Why it has not happened is the story behind the story.