An attempt by Canada's Omar Khadr to have a judge thrown off his appeal panel has raised important legal questions that U.S. President Barack Obama and Congress should deal with quickly, a court in Washington has ruled.
Nevertheless, the D.C. Circuit said it was not prepared at this time to grant the former Guantanamo Bay inmate's request.
"Although we deny the writ, we cannot deny that Khadr has raised some significant questions," the D.C. Circuit said.
"We encourage Congress and the executive branch to promptly attend to those issues."
At issue is Khadr's call to have the court toss presiding Judge William (Bill) Pollard from the panel hearing his appeal of his war crimes conviction. Khadr and his lawyers argue that Pollard's position on the panel is illegal based on federal statutes that prohibit a judge from continuing to work as a lawyer.
Pollard, a partner in a Wall Street law firm, is one of two civilian appointees on the U.S. Court of Military Commission Review, which acts as an appeal court for matters related to military commissions.
The presidential appointee has refused to step down, arguing the rules do not apply to his situation. He maintains he's a "special government employee" of the Department of Defence and is allowed to work as a judge on the military review court while maintaining his law practice.
In its decision, the D.C. Circuit said the law does not afford Khadr a "clear and indisputable" right to the "drastic and extraordinary remedy" of having Pollard bumped. At the same time, the court said, if the Court of Military Commission Review denies Khadr's war crimes appeal, he can raise the Pollard issue again.
"Our denial...does not preclude Khadr from advancing these same arguments in a future appeal where the standard of review will not be so daunting," the court said.
In the interim, the court said the U.S. government and Congress must make clear whether civilians who serve as judges on the Court of Military Commission Review can also practise law part time and, if so, the "circumstances under which they may do so."
The appeal over which Pollard resides relates to Khadr's conviction by a widely condemned military commission in Guantanamo Bay in October 2010. Khadr pleaded guilty to five war crimes he was accused of committing as a 15-year-old in Afghanistan in 2002.
The commission sentenced him to a further eight years in prison. He was transferred to Canada to serve out his sentence in 2012 and has been on bail in Alberta for a year pending the outcome of his U.S. appeal, which remains in limbo.
His appeal to the Court of Military Commission Review argues in part those offences were not war crimes under either U.S. domestic or international law at the time they were committed. The review court presided over by Pollard has so far refused to deal with the merits of the appeal.
An analysis in the Lawfare Blog argues the Pollard issue – unlikely to be fixed any time soon given the "highly politicized, dysfunctional context" in which the top levels of the U.S. government operate – is just a "symptom of a broader problem" with the military commissions.
"At nearly every turn, the hastily crafted military commission system shows that being novel and untested comes at a great cost in time, resources and ultimately credibility," authors Robert Loeb and Helen Klein note.