Just over a year ago, I wrote a post about the David Hicks and Omar Khadr cases–and the very real possibility that, as a result of the D.C. Circuit’s decision in “Hamdan II,” both military commission convicts might seek to challenge their plea agreements on the ground that the commission lacked jurisdiction to try them in the first place. Now that the en banc D.C. Circuit has settled the unavailability of material support and solicitation charges (by holding in al Bahlul that they violate the Ex Post Facto Clause even under plain error review), these appeals have once again become ripe, as the Court of Military Commission Review (CMCR) indicated this morning, in an order lifting the stay in Hicks’s appeal.
Outwardly, the biggest obstacle to Hicks’s appeal is 10 U.S.C. § 950c(d), which provides that “A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review [by the CMCR] under section 950f of this title.” But the CMCR order didn’t just lift the stay; it also identified a serious procedural flaw with Hicks’s waiver, to wit, that Hicks’s waiver “was not refiled within 10 days after the Convening Authority’s action was served on the accused or on defense counsel.” In other words, because of a paperwork problem, Hicks may never have actually perfected his waiver of his right to appeal. and so § 950c(d) wouldn’t, or at least shouldn’t, apply. Moreover, the 2009 Military Commissions Act revised the CMCR’s appellate jurisdiction, to only allow that court to affirm such findings of guilt “as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” (The order nevertheless stresses, curiously, that focus on the merits “should not be construed that the Court has decided that the waiver of appeal is invalid”).
As a result, the only question the CMCR actually specified this morning isn’t whether Hicks may now appeal his conviction via a plea agreement; it’s the merits of such an appeal: “should our Court affirm Appellant’s finding of guilty of providing material support to terrorism . . . in light of United States v. Al Bahlul?” But if that’s the only question the CMCR is now going to answer in Hicks’s case, the answer is pretty obvious: No. Whether the CMCR will instead rely on Hicks’s waiver, notwithstanding its flaws, is the harder query.