Khadr v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 15, 2008 Decided June 20, 2008

No. 07-1405

OMAR KHADR,
PETITIONER

v.

UNITED STATES OF AMERICA AND UNITED STATES COURT OF
MILITARY COMMISSION REVIEW,
RESPONDENTS

On Respondents’ Motion to Dismiss the Petition for Review
for Lack of Jurisdiction

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.
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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
 3

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.
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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
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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
 6

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 (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.”*

*
To the extent Khadr contends that the CMCR decision is a
“final judgment” under the Military Commissions Act, he fares no
better. Although Khadr asserts in his brief that the military judge’s
order is the appealable “final judgment,” Appellant’s Br. at 6, his
petition to this court sought “review of the decisions of the [CMCR],”
Petition for Review at 1, and the substance of his arguments on brief
challenges the CMCR remand order rather than the military judge’s
order in his favor. But “‘[a] remand order usually is not a final
decision,’” Lakes Pilots Ass’n, Inc. v. U.S. Coast Guard, 359 F.3d
624, 625 (D.C. Cir. 2004) (quoting NAACP v. U.S. Sugar Corp., 84
F.3d 1432, 1436 (D.C. Cir. 1996)). Because the resolution of the
jurisdictional issue does not leave “solely ‘ministerial’ proceedings,”
In re St. Charles Preservation Investors, Ltd., 916 F.2d 727, 729 (D.C.
Cir. 1990), to be conducted by the military judge on remand, the
CMCR’s remand order is not final for purposes of appellate
jurisdiction.
 7

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 appellate court’s decision. But that statute, which
applies to appeals of decisions from the Court of Appeals for
Veterans Claims and thus has no relevance here, does not
expressly require a “final” decision from the trial-level court.
See Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002)
(quoting 38 U.S.C. § 7292(a)). The Military Commissions Act
does.

Khadr next seeks support from jurisdictional procedures in
the Uniform Code of Military Justice (UCMJ), but Congress
expressly stated in the Military Commissions Act that the UCMJ
does not apply to trials by military commission unless
specifically indicated. See 10 U.S.C. § 948b(c)–(d). Congress
did not specifically provide for the application of any
jurisdictional provisions from the UCMJ to appeals of military
commission decisions, but instead required a final judgment,
 8

approved by the convening authority, and appealed through the
administrative process. Thus, the UCMJ provides no
jurisdictional help to Khadr.

Finally, Khadr argues that the Government has shown,
through its conduct and regulations, that it agrees that an appeal
is authorized in this case. Khadr points to notice he was given
when he was served with the CMCR’s decision “that Rules for
Military Commission 908 and 1201 provide ‘a right to petition
the United States Court of Appeals for the District of Columbia
Circuit’ within 20 days of the date of this notification.” Rules
for Military Commission 908 and 1201, he argues, support the
notice’s statement because they speak in general terms of a right
to appeal “the decision” of the CMCR on “any appeal.” The
problem with Khadr’s argument is that “courts of appeals have
only [the] jurisdiction [that] Congress has chosen to confer upon
them” regardless of the actions of the parties, even when one of
those parties is the Executive Branch. Moms Against Mercury,
483 F.3d at 827 (quoting Cutler v. Hayes, 818 F.2d 879, 887
n.61 (D.C. Cir. 1987)). “Parties, of course, cannot confer
jurisdiction; only Congress can do so.” Weinberger v. Bentex
Pharms., Inc., 412 U.S. 645, 652 (1973); see also Kontrick v.
Ryan, 540 U.S. 443, 452 (2004). Thus, once Congress
determined the limits of this Court’s jurisdiction in the Military
Commissions Act, no rule, regulation, or notice given by the
Executive Branch could expand those limits. The statute
requires a final judgment by a military commission, approved by
the convening authority, for which all administrative review has
been exhausted, 10 U.S.C. § 950g(a)(1), and requires that
Executive Branch rules and regulations “not be contrary to or
inconsistent with” those statutory requirements, 10 U.S.C.
§ 949a(a). The regulations and notice given Khadr did not
change the statutory preconditions to our jurisdiction. Because
they have not yet been met in this case, the Military
Commissions Act does not give us jurisdiction.
 9

B. Collateral Order Doctrine

For the first time in its reply brief, the Government argued
that the collateral order doctrine does not apply to proceedings
under the Military Commissions Act. We generally refuse to
entertain arguments raised for the first time in a party’s reply
brief. Qwest Servs. Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir.
2007). While we will not consider the Government’s argument
here, Khadr’s argument fails even if the collateral order doctrine
were to apply to proceedings under the Act.

The collateral order doctrine allows interlocutory review of
a “small class” of decisions which “conclusively determine the
disputed question, resolve an important issue completely
separate from the merits of the action, and [are] effectively
unreviewable on appeal from a final judgment.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978). We hold that the
order at issue here cannot satisfy the third requirement because
it is reviewable on appeal from final judgment, and so will not
consider the first two requirements of the doctrine.

The Supreme Court has repeatedly “reiterated that
interlocutory or ‘piecemeal’ appeals are disfavored.” United
States v. MacDonald, 435 U.S. 850, 853 (1978) (citing cases);
see also United States v. Hollywood Motor Car Co., 458 U.S.
263, 265 (1982). The collateral order doctrine is intentionally
“narrow and selective in its membership,” Will v. Hallock, 546
U.S. 345, 350 (2006), and is especially so in criminal cases
where “‘encouragement of delay is fatal to the vindication of the
criminal law,’” MacDonald, 435 U.S. at 853–54 (quoting
Cobbledick v. United States, 309 U.S. 323, 325 (1940)). In
criminal cases, then, the collateral order doctrine must be
applied “‘with utmost strictness.’” United States v. Cisneros,
169 F.3d 763, 767 (D.C. Cir. 1999) (quoting Flanagan v. United
States, 465 U.S. 259, 265 (1984)).
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At issue here is a pretrial jurisdictional decision in a
criminal case. The Supreme Court has held that “the denial of
a claim of lack of jurisdiction is not an immediately appealable
collateral order” because “the right not to be subject to a binding
judgment may be effectively vindicated following final
judgment.” Van Cauwenberghe v. Baird, 486 U.S. 517, 527
(1988) (citing Catlin v. United States, 324 U.S. 229, 236
(1945)). The Court, therefore, has “declined to hold the
collateral order doctrine applicable where a district court has
denied a claim . . . that the suit against the defendant is not
properly before the particular court because it lacks
jurisdiction.” Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 500
(1989); see also United States v. Levy, 947 F.2d 1032, 1034 (2d
Cir. 1991); United States v. Layton, 645 F.2d 681, 683 (9th Cir.
1981); United States v. Sorren, 605 F.2d 1211, 1213–14 (1st Cir.
1979). Because jurisdictional decisions do not satisfy the
doctrine’s requirements, it necessarily follows that the decision
in this case, which does not yet decide jurisdiction, does not
warrant collateral order doctrine review. This procedural
decision, as well as any subsequent jurisdictional decision, will
be reviewable if necessary following a final judgment.

Khadr seeks special treatment for this procedural order
because it involves a military commission. He contends that
there is a public interest in ensuring the legality and legitimacy
of military commissions and that the interest counsels in favor
of reviewing procedural issues as they arise to make certain that
military commissions are operating fairly and in conformity
with the law. This public interest, Khadr argues, will be
irreparably harmed if the public is to later learn that Khadr was
tried by a tribunal that did not have jurisdiction over him. Thus,
he argues, he satisfies the requirements of the doctrine as
enunciated by the Supreme Court in Will: “it is not mere
avoidance of a trial, but avoidance of a trial that would imperil
a substantial public interest, that counts when asking whether an
 11

order is ‘effectively’ unreviewable if review is to be left until
later.” 546 U.S. at 353.

There is no substantial public interest at stake in this case
that distinguishes it from the multitude of criminal cases for
which post-judgment review of procedural and jurisdictional
decisions has been found effective. The Supreme Court in Will
clarified that the “substantial public interest” claimed by the
petitioner cannot be solely his “right not to stand trial.” 546
U.S. at 350–51. There must also be “some particular value of a
high order” that merits appealability prior to trial. Id. at 352.
Where a decision rejects a claim of absolute immunity, there is
a valuable interest in “honoring the separation of powers.” Id.;
see Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982). Where a
decision rejects a claim of qualified immunity, there is a
valuable interest in “preserving the efficiency of government
and the initiative of its officials.” Will, 546 U.S. at 352; see
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Where a decision
rejects a State’s claim to Eleventh Amendment immunity, there
is a valuable interest in “respecting a State’s dignitary interests.”
Will, 546 U.S. at 352; see Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 144–45 (1993). And
where a criminal defendant has been denied his defense of
double jeopardy, there is a valuable interest in “mitigating the
government’s advantage over the individual.” Will, 546 U.S. at
352–53; see Abney v. United States, 431 U.S. 651, 660 (1977).
There is no comparable significant public interest implicated
here. Instead, Khadr has pointed solely to the interest that the
public has in ensuring that all criminal proceedings are just.
That interest does not warrant our interruption of this criminal
proceeding just because it is a military commission. This Court
will have opportunity to review this procedural decision post-
judgment if necessary and can then determine whether the
commission properly determined its jurisdiction and acted in
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conformity with the law. The collateral order doctrine does not
authorize us to make those determinations now.

III. Conclusion

For the reasons discussed above, we dismiss the petition for
lack of jurisdiction.