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Judge Bates Rules that Military Comission Trial of Omar Khadr can Continue

From SCOTUSBlog:

In a 19-page ruling, District Judge John D. Bates denied review at this time on part of the claims by Omar Khadr seeking to challenge his military commission trial, and ruled that the court had no authority to consider another challenge.  (The judge’s opinion in Khadr v. Bush, 04-1136, is here; an order to implement it is here.)

Khadr was 15 years old at the time of his capture in Afghanistan in July 2002.  He was taken to Guantanamo Bay later that year. He has been declared an “enemy combatant” and has been charged with war crimes for his role in a firefight in Afghanistan that left an American soldier dead.

His trial has been scheduled to begin Jan. 26 at Guantanamo, and Judge Bates’ decision clears the way for it — provided the ruling withstands any appeal and that President-elect Barack Obama does not take action to close down the military commission system at Guantanamo.

Technically, the judge did not reject outright two of Khadr’s challenges: that his trial by a military commission will be illegal because that tribunal does not have the authority to try juveniles, and that he could not have been designated an “enemy combatant” — the basis for his detention — because a juvenile cannot be a member of an armed group such as al Qaeda.

The judge, instead, simply withheld a ruling on those two claims, deferring to the military trial system that Congress set up in the Military Commissions Act of 2006.  Thus, those issues would not be raised in Bates’ Court, under his ruling, until after Khadr was convicted and any appeals were decided.

The judge held off by relying upon the Supreme Court’s 1975 decision in Schlesinger v. Councilman, holding that federal courts normally should not intrude on military trials until after any remedies in a military system had been tried.  The judge said there is an exception to that ruling, but only if constitutional claims are raised; he ruled that Khadr’s claims were not based on the Constitution even though Khadr’s counsel had said the issues were “substantial.”

Khadr’s third claim — the one that Judge Bates found to be beyond his reach — is that even if it were legal to detain him, it is illegal to hold him as an adult because he was a juvenile when captured.  Khadr thus argued that he should be put into a rehabilation program for “former child soldiers,” either in his home country of Canada, or elsewhere.

In finding no jurisdiction to hear and decide that challenge, the judge ruled that Congress had stripped the federal courts of all jurisdiction to hear and decide habeas cases that involved challenges to “conditions of confinement” in detention.

While the Supreme Court in Boumediene v. Bush last June had struck down a court-stripping provision that Congress had enacted in 2006 to head off any habeas petitions by detainees, Judge Bates concluded that the Court had left intact another court-stripping provision that barred court review of confinement conditions.

That intepretation of Boumediene, the judge noted, had been embraced recently by two of his District Court colleagues — Senior Judge Thomas F. Hogan and Judge Ricardo M. Urbina.

Although Khadr was claiming that his challenge was not to conditions at Guantanamo, but rather was a claim for an entirely different level of custody — rehabilitation instead of punitive restraint — that was similar to a plea for release, the judge ruled otherwise. Basically, he found, Khadr was challenging the identity of those with whom he is detained as well as the purpose of his detention.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.