United States v. Khadr

568 F.Supp.3d 1266

UNITED STATES of America

v.Omar Ahmed KHADR

CMCR 13-005

United States Court of Military Commission Review.

October 21, 2021

On briefs and/or motions for Omar Ahmed Khadr were Samuel T. Morison, Captain Justin Swick, U.S. Air Force, Dennis Edney, and Alexandra Link.

On briefs and/or motions for the United States were Brigadier General Mark S. Martins, U.S. Army, Captain Edward S. White, JAGC, U.S. Navy, Danielle S. Tarin, Marc A. Wallenstein, and Bryce G. Poole.

BEFORE THE COURT Pollard, Presiding Judge Burton, Chief Judge, Stephens, Judge

PUBLISHED OPINION OF THE COURT

Opinion for the court Pollard, Presiding Judge:

On November 8, 2013, Appellant Omar Ahmed Khadr filed a brief in this court, in which he stated: "Appellant files this appeal as of right from the Convening Authority's final action approving the judgment and sentence rendered by Appellant's military commission," based upon his plea of guilty to five offenses, including murder in violation of the law of war. See Khadr Br. 1 (Nov. 8. 2013). The convening authority has not referred Khadr's case to us for review. See 10 U.S.C. § 950f(c) (2021) (citing 10 U.S.C. § 950c ). By orders dated November 19 and December 5, 2013, we asked the parties to brief inter alia whether we had jurisdiction to hear the appeal without a referral by the convening authority.

In March 2014, we abated the appeal before reaching the jurisdictional issue. Order (CMCR Mar. 7, 2014). We said that the resolution of a then-pending appeal before the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) sitting en banc, al Bahlul v. United States , No. 11-1324, "concerning the Military Commission's subject-matter jurisdiction[,] may have a material bearing on the disposition of a significant issue that Appellant raises in this Court." Id. at 2. This was so, we said, because:

The principal argument that Appellant raises in his brief is his contention that the military commission below lacked subject matter jurisdiction to convict him of the majority of the offenses set forth in the charging instrument because at the time of his alleged criminal conduct no such crimes existed under the international law of war. Brief for Appellant 18-39.

Id. at 1. The al Bahlul case continues to wind its way through the appellate process,¹ but we ordered the abatement lifted on September 2, 2020,² re-imposed it on November 19, 2020, and then lifted it again on June 21, 2021. In our September 2, 2020, order, we asked the parties to supplement the briefing on whether we had jurisdiction to hear Khadr's appeal. They have done so.

After giving full consideration to the parties’ arguments and the law, we dismiss Khadr's appeal for lack of jurisdiction.

Title 10, section 950f(c) of the United States Code (2021), our jurisdictional statute, calls upon us to review cases that have been "referred to the Court by the convening authority under section 950c of this title with respect to any matter properly raised by the accused." Here, the convening authority has not referred Khadr's case to our court. Until there is such a referral, we have no jurisdiction to hear an appeal because referral by the convening authority is jurisdictional for our court.

In dismissing Khadr's appeal for lack of jurisdiction, we remand the case to the convening authority with instructions that the parties and the convening authority address the referral matter within forty-five (45) days of the date of this opinion. See infra Part III.

I. FACTS

We set forth only the facts necessary to resolve the jurisdictional issue.

Appellant was convicted, on his plea of guilty before a military commission, of murder in violation of the law of war, in violation of 10 U.S.C. § 950t(15) (2009) (Charge I); attempted murder in violation of the law of war, in violation of 10 U.S.C. § 950t(28) (2009) (Charge II); conspiracy to attack civilians, to attack civilian objects, to commit murder in violation of the law of war, to destroy property in violation of the law of war, and to commit terrorism, in violation of 10 U.S.C. § 950t(29) (2009) (Charge III); providing material support for terrorism, in violation of 10 U.S.C. § 950t(25) (2009) (Charge IV); and spying in violation of the law of war, in violation of 10 U.S.C. § 950t(27) (2009) (Charge V). App. Ex. 1, Vol. 19, at pp. 179–85; App. Ex. 217-B, Vol. 36, at p. 324.³

On October 31, 2010, the military commission sentenced Khadr to forty years’ confinement. Tr. 4890, Vol. 18, at p. 341. However, the pretrial agreement (PTA) between the convening authority and Khadr limited his sentence to eight years’ confinement. PTA ¶ 6.a, App. Ex. 341, Vol. 42, at p. 143. In the PTA, Khadr agreed to waive his appellate rights, which required him to sign and file a waiver (Military Commission Form 2330) with the convening authority. PTA ¶ 2.f, App. Ex. 341, Vol. 42, at p. 139 (citing Rule for Military Commissions (R.M.C.) 1110, Manual for Military Commissions, United States); see 10 U.S.C. § 950c(b) (2021). Khadr agreed to file his waiver within ten days after he or his counsel was served with the convening authority's action on the commission's findings and his sentence. PTA ¶ 2.f, App. Ex. 341, Vol. 42, at p. 139; see R.M.C. 1110(f)(1) (2010); 10 U.S.C. § 950c(b)(3) (2021).

On May 26, 2011, the convening authority issued his action approving "only so much of the sentence as provides for eight years confinement." Gov. App. 74 (Dec. 19, 2013). The action was served on Khadr's counsel the same day. Id. at 95–102. Khadr, however, did not file an appellate rights waiver with the convening authority within ten days of service of the action, as promised in paragraph 2.f of his PTA. Khadr Opp'n 7 (Oct. 7, 2020); see Gov. Resp. 9 (Nov. 26, 2013); App. Ex. 386 ¶ 7, Vol. 42, at p. 277. A waiver of appellate rights has never been filed with the convening authority.

The convening authority did not refer this case to our court for review. There is nothing in the record that shows Khadr asked the convening authority to refer his case to us. Rather, we can infer from the arguments in his briefs that he has not made any such request. See, e.g. , Khadr Reply 8, 16 (Jan. 10, 2014).

Section 950c(a) of Title 10 of the United States Code (2021) says "the convening authority shall refer ... to the United States Court of Military Commission Review," "each case in which [a] final decision of a military commission" regarding a finding of guilt has been "approved by the convening authority"—except for those cases in which an individual has waived appellate rights. Khadr's opening brief invokes § 950f(c) as the basis for jurisdiction, but does not address the statutory referral requirement in section 950c(a). See Khadr Br. 1–2 (Nov. 8, 2013). Nor does his brief explain why the convening authority has not referred this case to us or why Khadr has not asked that it be to referred to us. See id.

II. DISCUSSION

A. Jurisdiction

The first step of appellate adjudication is to determine whether the court has jurisdiction.

"Because Article III courts are courts of limited jurisdiction, we must examine our authority to hear a case before we can determine the merits." United States v. British Am. Tobacco Australia Servs., Ltd. , 437 F.3d 1235, 1239 (D.C. Cir. 2006) (quoting Wyo. Outdoor Council v. U.S. Forest Serv. , 165 F.3d 43, 47 (D.C. Cir. 1999) ). As the party claiming subject matter jurisdiction, Khadr has the burden to demonstrate that it exists.

Moms Against Mercury v. FDA , 483 F.3d 824, 828 (D.C. Cir. 2007).

Khadr v. United States , 529 F.3d 1112, 1115 (D.C. Cir. 2008) (parallel citations omitted); see also Arbaugh v. Y&H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (All courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party."). The same starting point applies to Article I courts. Here, Khadr has not met his burden of establishing jurisdiction.

We begin with our jurisdictional statute, 10 U.S.C. § 950f(c), which says:

Cases to be reviewed. The Court shall, in accordance with procedures prescribed under regulations of the Secretary, review the record in each case that is referred to the Court by the convening authority under section 950c of this title with respect to any matter properly raised by the accused.

From this language, four things are clear.

1. Congress commands the court "shall ... review the record,"

2. "with respect to any matter properly raised by the accused,"

3. "in each case that is referred to the Court by the convening authority under section 950c," and

4. in accordance with the U. S. Court of Military Commission Review Rules of Practice.

"[T]he word ‘jurisdictional’ is generally reserved for prescriptions delineating the classes of cases a court may entertain...." Fort Bend Cnty. v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1848, 204 L.Ed.2d 116 (2019). The scope of that jurisdiction is defined when there is a "clear jurisdictional grant to the courts" and a "clear limit on that grant." Gonzalez v. Thaler , 565 U.S. 134, 142, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). In construing our jurisdictional statute, "traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences." United States v. Kwai Fun Wong , 575 U.S. 402, 410, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015).

Gonzalez is particularly instructive. It concerned 28 U.S.C. § 2253(c), a provision regarding the requirements for appealing final orders in certain habeas corpus proceedings. Section 2253(c)(1)(A) says, "Unless a circuit justice or judge issues a certificate of appealability [(COA)], an appeal may not be taken to the court of appeals from ... the final order in [certain] habeas corpus proceeding[s] ...." The Supreme Court held that the statutory language requiring issuance of a certificate not only was jurisdictional, but also was " ‘clear’ jurisdictional language." Go...