The D.C. Circuit Hands Down Opinion in Khadr

Here it is. Judge Brett Kavanaugh's opinion for himself, Judge Thomas Griffith, and Senior Judge A. Raymond Randolph opens as follows:

Omar Ahmed Khadr was a member of al Qaeda. On July 27, 2002, at the age of 15, 2 Khadr took part in a firefight in Afghanistan against U.S. forces. During the battle, Khadr killed a U.S. Army soldier, Sergeant First Class Christopher Speer.

Khadr was captured that day by U.S. forces. He was later transferred to the U.S. Naval Base at Guantanamo Bay, Cuba, for continued detention as an enemy combatant in the U.S. war against al Qaeda.

In 2007, the United States brought war crimes charges against Khadr and sought to try him before a U.S. military commission. The charges included conspiracy to commit murder and material support for terrorism. See 10 U.S.C. § 950t(25), (29). In 2010, the United States and Khadr reached a plea agreement. Pursuant to the deal, Khadr pled guilty and was sentenced to eight years in military prison. Two years later, in 2012, the United States transferred Khadr to Canadian authorities. The Canadian authorities subsequently released Khadr, and he is now apparently free on bail in Canada.

In 2013, more than three years after his guilty plea and about a year after he had been turned over to Canada, Khadr appealed his military commission conviction to the U.S. Court of Military Commission Review. Among other arguments, Khadr contended that conspiracy and material support for terrorism – two of the offenses to which he pled guilty – were not war crimes triable by military commission, at least not back in 2002 when he engaged in the charged conduct. Khadr’s appeal is being held in abeyance by the U.S. Court of Military Commission Review pending our Court’s en banc resolution of Bahlul v. United States, No. 11-1324.

The U.S. Court of Military Commission Review consists of two categories of judges: (i) appellate military judges in the military justice system who are designated by the Secretary of Defense to serve on the Court and (ii) civilians who are appointed by the President with the advice and consent of the Senate to serve as judges on the Court. See 10 U.S.C. § 950f(b).

The U.S. Court of Military Commission Review ordinarily sits in panels of three judges. See id. § 950f(a). Khadr has moved for one of the three judges on his appeal – Judge William B. Pollard III – to disqualify himself. Judge Pollard is a civilian who serves as a part-time judge on the Court. He also maintains a private law practice. Khadr contends that this arrangement is unlawful and requires Judge Pollard’s disqualification. In a written opinion, Judge Pollard denied Khadr’s motion. Judge Pollard ruled that the relevant statutes authorize the civilians who serve as judges on that Court to also maintain a part-time private law practice.

Khadr has now petitioned this Court for a writ of mandamus ordering Judge Pollard’s disqualification. To obtain a writ of mandamus, Khadr must show (among other things) a “clear and indisputable” right to Judge Pollard’s disqualification. Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367, 381 (2004). Although Khadr’s arguments carry some force, he has not shown a “clear and indisputable” right to relief at this time. We therefore deny the petition. If the U.S. Court of Military Commission Review decides against Khadr in his pending appeal, he may renew his arguments about Judge Pollard on direct appeal to this Court. See 10 U.S.C. § 950g.

The opinion concludes:

Applying the traditional “clear and indisputable” standard, we deny Khadr’s petition for a writ of mandamus. If the U.S. Court of Military Commission Review rules against Khadr in his pending appeal, he may renew his arguments about Judge Pollard on direct appeal to this Court. See 10 U.S.C. § 950g. In other words, our denial of mandamus relief does not preclude Khadr from advancing these same arguments in a future appeal where the standard of review will not be so daunting.

Although we deny the writ, we cannot deny that Khadr has raised some significant questions. We encourage Congress and the Executive Branch to promptly attend to those issues and to make clear, one way or the other, whether the civilians who serve as judges on the U.S. Court of Military Commission Review may continue to engage in the part-time practice of law and, if so, the circumstances under which they may do so.