Published by The Lawfare Institute
in Cooperation With
This Court should reject the government’s proposed inquest into Mr. Bahlul’s relationship with his counsel. Congress set up an appeals process for military commissions that is modeled on the Uniform Code of Military Justice. 10 U.S.C. §§ 801, et seq. Under that process, a criminal defendant has a right of appeal to both the Court of Military Commission Review (“CMCR”) and to this Court. 10 U.S.C. §§ 950f, 950g. A defendant can forfeit his appellate rights by executing a waiver within ten days after the Convening Authority’s action, or withdrawing his appeal anytime thereafter. 10 U.S.C. § 950c(b) & (c). Congress has prescribed rules to ensure that military commission defendants’ relinquishment of their appellate rights is knowing, intelligent and voluntary, and the Secretary of Defense has specified procedures that further reinforce this requirement. There is no provision for an appeal to be deemed withdrawn by implication.
There is no evidence in the record that Mr. Bahlul waived his rights of appeal. By the government’s own admission Mr. Bahlul knows how to terminate his appeal if he so chooses and has declined every opportunity to do so.
Rather than evidence that Mr. Bahlul does not wish his appeal to be pursued, all that the Government has offered this Court are statements he has made to challenge the authority of his military commission and express dissatisfaction with the entire process. Far from being grounds to terminate the appeal, or question it going forward, his objections echo the very grounds on which he now appeals.
Absent a far clearer showing that the process Congress put in place has broken down, this Court should deny the government’s motion so that this case may proceed without further delay.