The US Court of Appeals for the District of Columbia Circuit on Tuesday rejected a Department of Defense (DOD) lawyer’s petition to view a hearing for convicted terrorist Ibrahim al Qosi Tuesday.
Although this lawyer is a member of the DOD and works in the Military Commissions Defense Organization, a branch of the DOD that represents defendants in military trials, he sued as a member of the general public. The lawyer, Philip Sundel, represented himself in this matter and refused to provide an explanation for why he sought this information.
Ordinarily, hearings at Guantanamo Bay, where al Qosi had been held, are available to the public. However, this particular hearing concerned classified information and was withheld from public record. Sundel does not represent al Qosi as part of his role at the Military Commissions Defense Organization and did not have access to this classified hearing. Sundel appealed to the trial court and the military appellate court to gain access to the unredacted transcript of the hearing but was denied by both courts.
The DC Circuit ultimately dismissed Sundel’s petition to view al Qosi’s unreacted hearing transcript because the court lacked subject matter jurisdiction over the case. The military court system’s appellate procedure is more strict than that of ordinary federal courts. In the military court system, one may only appeal a final judgment, the military court equivalent to a conviction. In this case, the decision to not allow Sundel to view the un-redacted transcript was not a final judgment, but only a decision by the court. As a result, the DC Circuit found that they did not have jurisdiction over the appeal and dismissed it.
Although not strictly related to the decision to dismiss Sundel’s petition, the judge observed that Sundel’s appeal before the court was the result of an intra-agency conflict over the decision to classify al Qosi’s hearing. Sundel’s suit challenged the internal policies of his workplace as a member of the general public, not as a government employee. The court observed:
It is an open question whether the public has a First Amendment right to attend hearings related to detainees at Guantanamo Bay. For now, we simply note that allowing a government lawyer to litigate that question as a member of the public would invite ill-advised litigation in other contexts.
Ultimately, the question of whether a government lawyer should litigate internal disputes in court was left unresolved by this case, as questions of subject matter jurisdiction are evaluated first.
A previous version of this article incorrectly indicated that al Qosi is currently being held at Guantanamo. He was repatriated in 2012, and his current wherabouts are unknown.