Khadr v. U.S.

Decision Date20 June 2008
Docket NumberNo. 07-1405.,07-1405.
Citation529 F.3d 1112
PartiesOmar KHADR, Petitioner, v. UNITED STATES of America and United States Court of Military Commission Review, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Karl M. Thompson argued the cause for petitioner. With him on the brief were William C. Kuebler and Rebecca S. Snyder, Counsel, Office of Military Commissions.

John F. De Pue, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the briefs was Kenneth L. Wainstein, Assistant Attorney General.

Before: SENTELLE, Chief Judge, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

Petitioner Omar Ahmed Khadr was captured on a battlefield in 2002, charged by the United States with war crimes, and referred to a military commission for trial. With this petition, Khadr seeks review of a preliminary procedural decision made in the course of the ongoing proceedings before the military commission. We dismiss the petition for lack of jurisdiction. The Military Commissions Act of 2006 limits our jurisdiction to review of "final judgment[s] rendered by a military commission" which have been "approved by the convening authority" and for which "all other appeals under [the Military Commissions Act] have been waived or exhausted." 10 U.S.C. § 950g(a)(1). The preliminary pretrial decision that Khadr contests is not such a "final judgment."

I. Background

Omar Ahmed Khadr is a Canadian citizen who was taken into military custody in 2002 during the hostilities in Afghanistan. He was transported to the United States detention facility at Guantanamo Bay, Cuba, where he has since been detained. In 2004, a three-member Combatant Status Review Tribunal ("CSRT") determined that he was properly classified as an "enemy combatant" and as an individual who was "a member of, or affiliated with al Qaeda."

The United States charged Khadr under the Military Commissions Act of 2006, Pub.L. No. 109-366, 120 Stat. 2600, with murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying. The charge alleges that Khadr murdered U.S. Army Sergeant First Class Christopher Speer on or about July 27, 2002 by throwing a hand grenade at U.S. forces; that Khadr attempted to murder U.S. or coalition troops between June 1 and July 27, 2002 by converting land mines into improvised explosive devices and planting them in the pathway of U.S. and coalition forces; that Khadr conspired with, and provided material support to, al Qaeda between June 1 and July 27, 2002 when he received training, conducted surveillance, and engaged in battle on al Qaeda's behalf; and that Khadr spied for al Qaeda by recording the travel patterns of U.S. forces. Each count charged that Khadr was "a person subject to trial by military commission as an alien unlawful enemy combatant."

On June 4, 2007, the military judge presiding over Khadr's military commission dismissed all charges without prejudice. He found that the commission lacked jurisdiction over Khadr because Khadr's CSRT had not found that he was an "unlawful enemy combatant." The Military Commissions Act links the commission's jurisdiction to an individual's status as an "unlawful enemy combatant" by giving it "jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant," 10 U.S.C. § 948d(a), and denying it "jurisdiction over lawful enemy combatants," id. § 948d(b). Thus, the military judge found that the CSRT's classification of Khadr as an "enemy combatant" was not enough to authorize the commission's exercise of jurisdiction over him.

The military judge further found that the commission lacked authority to make the jurisdictional finding that Khadr was an "unlawful" enemy combatant. Citing language in the Military Commissions Act that makes a CSRT's finding "that a person is an unlawful enemy combatant ... dispositive for purposes of jurisdiction for trial by military commission under this chapter," 10 U.S.C. § 948d(c), the military judge reasoned that only a CSRT could make the "unlawful enemy combatant" finding. Because there was no such finding in this case, the military judge ordered the charges dismissed without prejudice.

The United States appealed the military judge's order to the Court of Military Commission Review ("CMCR"). In a decision issued on September 24, 2007, the CMCR affirmed the decision in part and reversed it in part. The CMCR agreed that the CSRT's "enemy combatant" finding did not satisfy the "unlawful enemy combatant" requirement of the Military Commissions Act, but disagreed with the military judge's conclusion that a military commission was not authorized to make the appropriate jurisdictional finding in the first instance. The Military Commissions Act defines an "unlawful enemy combatant" as either:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

10 U.S.C. § 948a(1)(A). The CMCR reasoned that the use of the word "or" between subsections (i) and (ii) of the statutory definition created alternative approaches for establishing military commission jurisdiction, with the first subsection allowing the commission to determine its jurisdiction and the second subsection applying in those cases where a CSRT has already made a dispositive "unlawful enemy combatant" finding. The CMCR reversed "[t]he military judge's ruling [that] he lacked authority to hear evidence on, and ultimately decide, the matter of Mr. Khadr's `unlawful enemy combatant status' under the provisions of the [Military Commissions Act]" and returned the "record of trial ... to the military judge, who shall, consistent with this opinion, conduct all proceedings necessary to determine the military commission's jurisdiction over Mr. Khadr."

On October 9, 2007, Khadr petitioned this Court for review of the CMCR's decision.

II. Analysis

The government asserts that this petition should be dismissed for lack of 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). He contends that jurisdiction is proper under the Military Commissions Act of 2006 and under the collateral order doctrine. We disagree.

A. Military Commissions Act

The Military Commissions Act provides that "the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter," except that "[t]he Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted." 10 U.S.C. § 950g(a)(1). Khadr contends that this jurisdictional provision has been satisfied because the military judge issued an order dismissing all charges and because all appeals of that order have been exhausted. We do not agree.

The military judge's order is not a "final judgment" as required by 10 U.S.C. § 950g(a)(1)(A). It has long been well established that the reversal of a lower court's decision sets aside that decision, leaves it "without any validity, force, or effect," and requires that it be treated thereafter as though it never existed. Butler v. Eaton, 141 U.S. 240, 244, 11 S.Ct. 985, 35 L.Ed. 713 (1891); see also Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir.1991); Atlantic Coast Line R.R. Co. v. St. Joe Paper Co., 216 F.2d 832, 833 (5th Cir.1954); Keller v. Hall, 111 F.2d 129, 131 (9th Cir.1940); Corpus Juris Secundum, Federal Courts § 712 (2008). Once the military judge's order in this case was reversed by the CMCR, it lost all legal effect. An order that has become a legal nullity could not possibly constitute a "final judgment."*

Further, the "final judgment" must be "approved by the convening authority" to satisfy the statute. See 10 U.S.C. § 950g(a)(1)(A). The military judge's order in this case has not been approved by the convening authority, nor could it be at this juncture. The Military Commissions Act defers convening authority review until after a military commission has found guilt and announced a sentence. See 10 U.S.C. § 950b. In this way, the statute clarifies that the "final judgment" contemplated by the statute is very "final." It is not a pretrial procedural decision like the one at issue here.

Khadr advances three main arguments in an attempt to evade the plain language requirements of 10 U.S.C. § 950g(a)(1)(A). None has merit. First, he argues that his reading of the Military Commissions Act, which would allow review of the military judge's order irrespective of the finality of the CMCR's decision, is not unique. He points to another statute, 38 U.S.C. § 7292(a), which does not explicitly premise appellate review of trial-level decisions on the finality of an intermediate ...

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