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DOJ lawyers argue against Khadr appeal to federal court

[JURIST] US Department of Justice (DOJ) lawyers argued [motion, PDF] in documents filed with the US Court of Appeals for the DC Circuit Friday that the court does not have jurisdiction to hear an appeal from the US Court of Military Commission Review (CMCR) [DOD materials] by Guantanamo detainee Omar Khadr [JURIST news archive]. The DOJ argued that under the Military Commissions Act of 2006 (MCA) [S 3930 materials] no civilian court can consider an appeal of a war crimes case until a military court has issued a final judgment on the case. The DOJ also pointed to the MCA's "court-stripping" provision, which prevents federal courts from hearing habeas challenges. Khadr US military lawyer Lt. Cmdr. William Kuebler criticized the move [press release, DOC], describing it as "an effort to hit the 'delete' button on language ... which gives the defense a coequal right to seek review of decisions by the Court of Military Commission Review." The Canadian Press has more. SCOTUSblog has additional coverage.

Khadr filed [JURIST report] his appeal with the US Court of Appeals for the DC Circuit earlier this month, challenging the CMCR decision to send Khadr's case back to a military tribunal. Before that, the CMCR refused to reconsider its September ruling [JURIST reports] that the charges against Khadr could be reinstated, after a military commission judge dropped the charges [JURIST report] in June. Col. Peter Brownback reasoned that the court had no jurisdiction because a Guantanamo Combatant Status Review Tribunal [DOD materials] had found that Khadr was an "enemy combatant," but not an "unlawful enemy combatant" under the Military Commissions Act of 2006 [PDF text]. The appeals court overturned Brownback's decision and directed him to hear evidence concerning, and ultimately decide, Khadr's "unlawful enemy combatant" status. Khadr was detained in Afghanistan in 2002 after allegedly throwing a grenade that killed one US soldier and wounded another while fighting with the Taliban.

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