Court (Re)Abstains on Khadr's Habeas Petition

Judge John Bates (D.D.C.) ruled yesterday that Guantanamo detainee Omar Khadr could file a second amended habeas petition, but that the court would again abstain from hearing it under Schlesinger v. Councilman (holding that "federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted").  Judge Bates previously ruled that Councilman required abstention of Khadr's first habeas claim.  Khadr's military commission trial is set to begin on August 10, 2010, after being continued several times.

Khadr, who was detained as a minor, claimed in his second habeas petition that the military commission is unconstitutional and will not adequately protect his rights, because "it does not have procedures precisely replicating those available at civilian criminal trials."  Op. at 8.  As a result, he argues, abstention under Councilman, which "assume[s] that the military court system will vindicate [his] constitutional rights," is inappropriate.

Judge Bates rejected the claim, writing that "the Constitution does not require that every protection available in criminal trials must apply in military commission proceedings for Guantanamo detainees."  Op. at 9 (quoting Hamdan and Boumediene).  Moreover, detainees have a right to appeal to Article III courts: 

The review procedures created by the Military Commissions Act of 2009 have "the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces," and thus bear sufficient "conceptual similarity to state courts to warrant invocation of abstention principles." 

Op. at 11 (citing Hamdan).

Judge Bates also rejected Khadr's claims that he met the exception under Councilman that abstention is inappropriate where the petitioner presents "a constitutional question [that] turn[s] on the status of the person as to whom the military has asserted its power."  Councilman.  Khadr argued that his status as a juvenile at the time of capture prevents his trial by military commission, and that the military commission exceeds its constitutional authority.  Judge Bates ruled that the first claim was already rejected in the first ruling on abstention (linked above).  As to the second claim: "The Supreme Court, however, has already concluded that, consistent with the Constitution, Congress may authorize trial by military commission of enemy combatants accused of law of war violations."  Op. at 13 (citing Ex Parte Quirin and Hamdan).

SDS