The Coming Hicks and Khadr Appeals: Yet Another Military Commission Headache

As various media outlets reported earlier this week, Australian David Hicks–one of the first detainees charged and convicted (via plea) under the Military Commissions Act of 2006–has now filed a (rather late) appeal to the Court of Military Commission Review (CMCR), arguing that his plea should be vacated in light of the D.C. Circuit’s decision in Hamdan II–and its holding that detainees can’t be convicted of “providing material support to terrorism” for conduct that pre-dated the MCA’s 2006 enactment. And it now sounds like Omar Khadr may file a similarly delayed appeal of his conviction, raising a further array of substantive questions vis-a-vis the commissions that may yet end up in the D.C. Circuit. But leaving aside the merits of their appeals (which will almost certainly be held in abeyance pending the en banc D.C. Circuit’s decision in Al Bahlul), I wanted to write a bit about the timing thereof–which, if nothing else, is certainly unusual.

Ordinarily, federal criminal convictions start a very short clock for post-conviction appeals. Thus, Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure requires that the defendant file a notice of appeal in the district court “within 14 days” of the entry of judgment of the order being appealed. And there are a veritable legion of cases holding that the 14-day limit is “mandatory but not jurisdictional,” meaning that, although it can be waived (by the government) or subjected to tolling doctrines, it is otherwise insurmountable. (The UCMJ imposes a 10-day limit–subject to a 20-day extension–on the time within which a court-martial defendant may submit his objections to his conviction to the convening authority, the first step of post-conviction appeals within the military justice system.)

But neither the Federal Rules of Appellate Procedure nor the UCMJ apply to military commissions. And although the Military Commissions Act imposes a mandatory (and presumably jurisdictional) 20-day time limit on appeals from the CMCR to the D.C. Circuit, the statute includes no such limit on appeals to the CMCR. Finally, the CMCR’s own rules not only don’t include a time limit for filing an appeal; they appear to disclaim one. As footnote 2 to Rule 1 (which concerns the CMCR’s power to suspend its rules) explains,

CMCR Rule 1(c) is from Fifth Circuit FRAP 1(c), except Fifth Circuit FRAP 1(c) has an exception for Fifth Circuit FRAP 26(b), which states the court may not extend the time to file a notice of appeal. Because the CMCR is required to review every case that meets certain criteria, this exception is unnecessary.

In other words, given the absence of any language in the MCA or the CMCR’s rules imposing a time limit on post-conviction appeals, and the suggestion to the contrary in the CMCR’s rules, it seems as if there truly is no time limit for defendants to take post-conviction appeals from military commissions to the CMCR. And although one might well seek to argue that there should nevertheless be equitable constraints on the time within which a defendant may appeal, those arguments (assuming they’re even available to the government in a criminal case) seem difficult to reconcile with the language quoted above.

And so, yet again, we see a rather bizarre distinction between the procedural rules in ordinary criminal cases (whether in the civilian courts or courts-martial) and in military commission prosecutions. Of course, this specific distinction appears to cut in favor of the defendants. But it means that the CMCR (and, potentially, the D.C. Circuit) will now be forced to grapple with yet another battery of issues that are beyond the purview of our regular courts–civilian and military. 

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About the Author(s)

Steve Vladeck

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