Show sidebar

The Government (Sort of) Wins a Guantánamo Military Commission Appeal

No, not that one. In a two-page order issued this morning, the D.C. Circuit (Tatel, Griffith, & Silberman, JJ.) dismissed the appeal of former Guantánamo detainee Ibrahim Ahmed Mahmoud al-Qosi, on the ground that his appointed appellate defense counsel, Navy Captain Mary McCormick, did not have al-Qosi’s permission to appeal the Court of Military Commission Review (CMCR)’s April 2014 decision, and so there was no case or controversy to review.

At first blush, this ruling seems innocuous enough. But the 2014 CMCR decision from which Captain McCormick was seeking to appeal had denied her application for “funding from the Department of Defense that would allow her to travel to Sudan with an interpreter to seek out and meet with Al Qosi so that she could consult with him, and he could make an informed decision on whether he wanted her to represent him and whether she should challenge his military commission conviction,” on the (in my view, rather circular) ground that the CMCR could find no evidence that McCormick and al-Qosi had an attorney-client relationship–notwithstanding the fact that McCormick had been appointed by the military commissions’ Chief Defense Counsel as al-Qosi’s appellate defense counsel.

Because al-Qosi is (so far as we know) in Sudan, and because the government has not provided McCormick with the relief she sought from the CMCR–an opportunity to travel to Sudan to obtain his permission to pursue an appeal of the conspiracy and material support charges to which he pleaded (both of which are now vulnerable in light of al Bahlul)–there’s no way to prove his assent to such an appeal. I would’ve thought the burden should be on the government to prove the contrary, but the CMCR concluded otherwise–and the D.C. Circuit held that it lacked jurisdiction to disturb that analysis.

So if you’re scoring at home (or even if you’re by yourself), this hypertechnical jurisdictional ruling means that we’re up to two (of the seven) Guantánamo military commission convictions to remain intact despite the ongoing challenges to the trials of non-international war crimes and/or pre-9/11 offenses. A big win, indeed.

Tags: , , , ,


About the Author

Co-Editor-in-Chief of Just Security, Professor of Law at the University of Texas School of Law Follow him on Twitter (@steve_vladeck).