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United States V. Khadr CMCR 07-001 ROLPH, Deputy Chief Judge

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United States V. Khadr CMCR 07-001 ROLPH, Deputy Chief Judge UNITED STATES COURT OF MILITARY COMMISSION REVIEW Before ROLPH, FRANCIS, HOLDEN Appellate Military Judges UNITED STATES OF AMERICA Appellant v. OMAR AHMED KHADR Appellee CMCR 07-001 Military Commission Guantanamo Bay, Cuba Military Judge: Peter E. Brownback, III, JA, U.S. Army. For Appellant: Francis A. Gilligan (argued); Major Jeffrey D. Groharing, JA, U.S. Army (on brief); Captain Keith A. Petty, JA, U.S. Army (on brief); Lieutenant Clay G. Trivett, Jr., JAGC, U.S. Navy (on brief). For Appellee: Lieutenant Commander William C. Kuebler, JAGC, U.S. Navy (on brief; argued); Rebecca S. Snyder (on brief); Dennis Edney (on brief); Nathan Whitling (on brief; argued).1 Amicus Curiae for Appellee: Frank W. Fountain (on brief); Madeline Morris (Professor of Law, Duke University)(on brief); Stephen Bornick (Special Editorial Associate for Professor Morris)(on brief); Landon Zimmer (Special Editorial Associate for Professor Morris)(on brief); Allison Hester-Hadded (law student, Duke University)(on brief). September 24, 2007 --------------------------------------------------- OPINION OF THE COURT AND ACTION ON APPEAL BY THE UNITED STATES FILED PURSUANT TO 10 U.S.C. § 950d ---------------------------------------------------- 1 Mr. Edney and Mr. Whitling are both admitted to the bar in Canada and, upon motion, were authorized to appear as counsel for Mr. Khadr’s appeal to argue pro hac vice pursuant to Rule 8(f) of our Rules of Practice. United States v. Khadr CMCR 07-001 ROLPH, Deputy Chief Judge: In this appeal by the Government (hereinafter Appellant) we are called upon to interpret for the first time the jurisdictional provisions contained in the Military Commissions Act of 2006 (hereinafter M.C.A.)2 as they relate to the trial by military commission of a Canadian citizen, Omar Ahmed Khadr, Appellee (hereinafter Mr. Khadr). Mr. Khadr was captured on the battlefield in Afghanistan in 2002, is currently detained in Guantanamo Bay, Cuba, and was pending trial upon charges that were referred for trial before a military commission. This interlocutory appeal was taken after the military judge presiding over Mr. Khadr’s trial dismissed all charges against him without prejudice on June 4, 2007. The military judge’s ruling was based upon his sua sponte determination that the military commission lacked personal jurisdiction over Mr. Khadr. Where a court has no personal jurisdiction over an accused appearing before it, it is generally powerless to act. See, e.g., Ryder v. United States, 515 U.S. 177, 187 (1995)(Coast Guard Court of Criminal Appeals could not decide appeals because not properly appointed); Solorio v. United States, 483 U.S. 435, 442-451 (1987)(describing history of court-martial jurisdiction); Reid v. Covert, 354 U.S. 1, 32-36 (1957)(no court-martial jurisdiction over civilians accompanying the forces overseas); Toth v. Quarles, 350 U.S. 11, 22-23 (1955)(no court-martial jurisdiction over soldier discharged from service). The basis for the military judge’s ruling was Appellant’s failure to properly determine Mr. Khadr’s status as an “alien unlawful enemy combatant” before his Combatant Status Review Tribunal (C.S.R.T.), which the judge ruled was an indispensable prerequisite to the military commission’s ability to exercise personal jurisdiction under the M.C.A. The military judge further ruled that “the military commission is not the proper authority, under the provisions of the M.C.A., to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr.” See Military Judge’s Order on Jurisdiction of June 4, 2007 at 1-2; Record at 21. Background Appellant charged Mr. Khadr with various offenses arising during the period from on or about June 2002 to on or about July 27, 2002. The allegations include murder of a U.S. Soldier in violation of the law of war; attempted murder of U.S. military or coalition forces by making and planting improvised explosive devices (IEDs) in violation of the law of war; conspiracy with Osama bin Laden, Ayman al Zawahiri and other members of al Qaeda, an international terrorist organization, to attack civilians, destroy property, and commit murder – all in violation of the law of war; providing material or resources in support of al Qaeda and international terrorism; and spying, in violation of 10 U.S.C. §§ 950v(b)(15); 950t; 950v(b)(28); 950v(b)(25); and 950v(b)(27) respectively. Each charge and specification alleged against Mr. Khadr asserts the jurisdictional claim that he is “a person subject to trial 2 Pub. L. No. 109-366, 120 Stat. 2600 (October 17, 2006), codified at 10 U.S.C. §§ 948a-950w. 2 United States v. Khadr CMCR 07-001 by military commission as an alien unlawful enemy combatant.” See Charge Sheet, Charges I-V (Appellate Exhibit (AE) 1 at 4-7) (emphasis added). The record of trial, pleadings of the parties, and allied documents contain allegations that Mr. Khadr received one-on-one “private al Qaeda basic training” in Afghanistan during June 2002, consisting of instruction in the use of rocket propelled grenades, rifles, pistols, hand grenades, and various other explosives. See AE 1 at 6; AE 17. In July 2002, Mr. Khadr is also alleged to have participated in “land mine training,” which involved the conversion of landmines to IEDs and their strategic placement as weapons to be deployed against U.S. military and coalition forces. Id. On or about July 27, 2002, at a compound near Abu Ykhiel, Afghanistan, Mr. Khadr is alleged to have been a member of a group of al Qaeda members that engaged U.S. military and coalition forces with small arms fire, killing two Afghan Militia Force members, and throwing a hand grenade which killed Sergeant First Class Christopher Speer, U.S. Army. Id. Mr. Khadr, though badly wounded in the engagement, was immediately treated on scene by U.S. military medical personnel. He was thereafter taken into custody, and ultimately transported to the U.S. detention facility located at Guantanamo Bay Naval Base, Cuba, where he presently remains. On September 7, 2004, a three-member C.S.R.T. unanimously determined that Mr. Khadr was properly classified as an “enemy combatant” and an individual who was “a member of, or affiliated with al Qaeda,” as defined by a memorandum issued by the Deputy Secretary of Defense on July 7, 2004. See Report of C.S.R.T. (AE 11 at 6). Appellate Jurisdiction and Standards of Review The military judge’s ruling in this case dismissing all charges without prejudice qualifies for appeal by Appellant under 10 U.S.C. § 950d(a)(A) in that it “terminates proceedings of the military commission with respect to a charge or specification.” See Rule for Military Commission (R.M.C.) 908(a)(1), Manual for Military Commissions (M.M.C.)(2007). Appellant properly gave notice of appeal to the military judge on July 3, 2007,3 and filed the appeal directly with this Court within the time limits established in our Rules of Practice. See Rule 22, Rules of Practice, Court of Military Commission Review (2007). In ruling upon this appeal, we may act only with respect to matters of law. 10 U.S.C. § 950d(c); R.M.C. 908(c)(2). We have reviewed the military judge’s factual determinations applying a highly deferential standard of review mandating that findings of fact not be 3 The military judge’s ruling became final for purposes of the notice provisions of 10 U.S.C. § 950d(a)(2)(b) on June 29, 2007, the day the military judge denied Appellant’s Motion for Reconsideration. See United States v. Ibarra, 502 U.S. 1, 6-7 (1991); see also Court of Military Commission Review Ruling on Appellant’s Motion to Dismiss of September 19, 2007. 3 United States v. Khadr CMCR 07-001 disturbed unless they are “clearly erroneous.” See Amadeo v. Zant, 486 U.S. 214, 223 (1988); United States v. Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007). Regarding all matters of law, we review the military judge’s findings and conclusions de novo. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2001); Pederson v. Louisiana State Univ., 213 F.3d 858, 869 (5th Cir. 2000); United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007). Combatant Status Generally The determination of whether an individual captured on the battlefield is a “lawful” or “unlawful” enemy combatant carries with it significant legal consequences (both international and domestic) relating to the treatment owed that individual upon capture and ultimate criminal liability for participating in war- related activities associated with the armed conflict. The Third Geneva Convention Relative to the Treatment of Prisoners of War (GPW III) -- signed in 1949 and entered into force in 1950 following battlefield atrocities occurring during World War II -- sought to carefully define “lawful combatant” for all signatory nations. Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135, Art. 4. 4 See also Hague Convention No. IV Respecting the Laws and Customs of War on Land, October 18, 1907, 36 Stat. 2277, T.S. No. 539 (Hague Regulations). Article 4, GPW III makes it clear that lawful combatants will generally only include the regular armed forces of a party to the conflict, including “members of militias or volunteer corps forming part of such armed forces.” Also included are members of other militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict so long as they fulfill the following conditions: 1) They are under the command of an individual who is responsible for their subordinates; 2) They wear a fixed distinctive sign or symbol recognizable at a distance; 3) They carry their arms openly; and 4 The United States is a signatory nation to all four Geneva Conventions.
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