With Chief Justice John G. Roberts, Jr., considering a plea to block a war crimes trial of a young Canadian detainee at Guantanamo Bay, the D.C. Circuit Court on Wednesday rejected the same request, saying that the prisoner, Omar Khadr, can challenge the constitutionality of  the military commission system in an appeal if he is convicted.  His trial is now scheduled to begin next Tuesday, unless the Supreme Court postpones it.

The appeals court’s action appears to remove any need for the full Supreme Court to act on Khadr’s pending plea (docket 10-5691) that the Circuit Court be ordered to take some action on the challenge that his lawyers filed more than four months ago at the Circuit Court.  In its order on Wednesday, denying all of Khadr’s pleas, the Circuit Court offered what appeared to be an explanation for its failure to act, saying there had previously been uncertainty about the date of his military trial.  With that date now set for Aug. 10, the Circuit Court turned aside any relief for Khadr.

That leaves Khadr’s defense lawyers with the option of pursuing further the plea already pending with the Chief Justice — or filing a new one — to put the war crimes proceeding on hold until an appeal to the Justices can be filed.  Now, it appears, the plea for postponement will be keyed not to the Circuit Court’s failure to act, but on its denial of all relief and its order allowing the trial to go forward next week.

Khadr faces war crimes charges of murder and attempted murder for an incident in Afghanistant in 2002 when, as a 15-year-old fighting alongside terrorist operatives, he threw a grenade that killed an American soldier.  In his challenge to the military commission system, Khadr contends that it is beyond Congress’s power to create such a system and limit it solely to trying non-citizens.  That is the claim that the Circuit Court said Wednesday his lawyers could pursue after his commission trial has been completed.  Such a challenge would go first to an appeals court within the military, then to the D.C. Circuit, and, ultimately, to the Supreme Court.

Posted in Detainee Litigation