Military Commissions: Government appeals Khadr; Repercussions of the SCOTUS about-face

Some new developments.

1. First off, the Pentagon on Wednesday (July 4th) filed an appeal to reverse the commission judge’s dismissal and denial of reconsideration in the Khadr case, which we previously discussed HERE. I’m somewhat surprised, as most government offices weren’t open on the 4th. Despite the filing of the appeal, apparently the court, called the Court of Military Commissions Review (CMCR), isn’t even truly in existence yet: the members are due to be sworn-in this week.

The Court’s rules are according to one report “almost identical to those employed by the various service courts of criminal appeals.” For an example of one of the service court’s rules, the Navy-Marine Corps Court of Criminal Appeals’ rules are HERE.

The same report suggests that no timetable exists for processing the appeal. If the CMCR follows generally military case law, however, one can look to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), which requires a docketing time with the court of no more than 30 days after conviction, and requires no more than an 18 month time period between docketing of a record of trial and final review. These times are for review of court-martial convictions, but if they serve as any guide and no other considerations are applied, the processing of the appeal could be lengthy.

I suspect an expedited appeal, however, given both the visibility of the Commissions process and the fact that this amounts to an interlocutory appeal. Indications so far also support an expedited appeal (though I speak without a copy of the rules): note the commissions judge dismissed Khadr on June 4th, and denied reconsideration on June 29th. The reconsideration was denied within the standard 30 days for such filings in military courts, and the appeal was filed within 4 days of the reconsideration denial. Generally after a ruling that stops the government’s case in the military court-martial setting, the government would have 72 hours to file notice of appeal with the military judge, then 20 days to docket the case with the service court of criminal appeals. This appeal, apparently, was filed with the CMCR within 4 days of denial–so far under the 23 total days the government would typically have in the court-martial setting.

Taking the analogy further, courts-martial (by service court rules) after docketing with the CCA then have 20 days to file a brief supporting the interlocutory appeal. We’ll see if the analogy continues to hold as the process continues.

In the meantime, contact information for those interested in a copy of the rules is as follows:

Clerk of Court, Court of Military Commission Review

One Liberty Center

875 N. Randolph Street

Suite 8000

Arlington, VA 22203

(703) 696-6640

2. Next, the new self-reversal and grant of cert in Boumediene and Al Odah, which we discussed HERE, is having repercussions already in other pending detainee cases in Federal courts. SCOTUSblog reports that U.S. District Court Judge Ellen S. Huvelle last Thursday refused to dismiss six pending habeas cases in her court, citing to SCOTUS’ reversal and grant of cert.

3. Finally, back on June 22nd, lawyers for detainees in the Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397) cases at the D.C. Circuit Court had filed an affidavit by Army Reserve LTC Stephen Abraham. The affidavit had criticized the Combatant Status Review Tribunal (CSRT) process, which is used to designate detainees as “unlawful enemy combatants.” A copy of the affidavit may be found at the bottom of the Al Odah filing moving to attach the same affidavit, found HERE. The affidavit is generally critical of the process for assembling information into allegations and “cases” for presentation to the CSRTs.

Now the Justice Department has moved the Court to deny admission of the affidavit. The opposition may be found HERE. Justice argued that the Court could adjudge each CSRT case by the evidence in front of it, and that general characterizations of evidence assembly process were irrelevant to the Court’s review of the CSRTs. Justice also asks the Court to deny the detainees’ lawyer’s request to question a high-level Pentagon official about the CSRT process.

Thanks to SCOTUSblog.

Lime out

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Filed under Criminal Law, International, Military Law, Politics, Supreme Court

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