In re: Omar Khadr , 823 F.3d 92 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2016 Decided May 20, 2016
No. 14-1227
IN RE: OMAR KHADR,
PETITIONER
On Petition For A Writ of Mandamus and Prohibition to the
United States Court of Military Commission Review
Samuel T. Morison, Attorney, Office of Military
Commissions Defense Organization, argued the cause and
filed the briefs for petitioner. Justin J. Swick, Attorney,
entered an appearance.
Eugene R. Fidell was on the brief for amicus curiae Ethics
Bureau at Yale in support of petitioner.
Joseph F. Palmer, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Steven M. Dunne, Chief, Appellate Unit, and John F. De Pue,
Attorney.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge: Omar Ahmed Khadr was a
member of al Qaeda. On July 27, 2002, at the age of 15,
2
Khadr took part in a firefight in Afghanistan against U.S.
forces. During the battle, Khadr killed a U.S. Army soldier,
Sergeant First Class Christopher Speer.
Khadr was captured that day by U.S. forces. He was later
transferred to the U.S. Naval Base at Guantanamo Bay, Cuba,
for continued detention as an enemy combatant in the U.S. war
against al Qaeda.
In 2007, the United States brought war crimes charges
against Khadr and sought to try him before a U.S. military
commission. The charges included conspiracy to commit
murder and material support for terrorism. See 10 U.S.C.
§ 950t(25), (29). In 2010, the United States and Khadr
reached a plea agreement. Pursuant to the deal, Khadr pled
guilty and was sentenced to eight years in military prison.
Two years later, in 2012, the United States transferred Khadr to
Canadian authorities. The Canadian authorities subsequently
released Khadr, and he is now apparently free on bail in
Canada.
In 2013, more than three years after his guilty plea and
about a year after he had been turned over to Canada, Khadr
appealed his military commission conviction to the U.S. Court
of Military Commission Review. Among other arguments,
Khadr contended that conspiracy and material support for
terrorism – two of the offenses to which he pled guilty – were
not war crimes triable by military commission, at least not back
in 2002 when he engaged in the charged conduct. Khadr’s
appeal is being held in abeyance by the U.S. Court of Military
Commission Review pending our Court’s en banc resolution of
Bahlul v. United States, No. 11-1324.
The U.S. Court of Military Commission Review consists
of two categories of judges: (i) appellate military judges in the
3
military justice system who are designated by the Secretary of
Defense to serve on the Court and (ii) civilians who are
appointed by the President with the advice and consent of the
Senate to serve as judges on the Court. See 10 U.S.C.
§ 950f(b).
The U.S. Court of Military Commission Review ordinarily
sits in panels of three judges. See id. § 950f(a). Khadr has
moved for one of the three judges on his appeal – Judge
William B. Pollard III – to disqualify himself. Judge Pollard
is a civilian who serves as a part-time judge on the Court. He
also maintains a private law practice. Khadr contends that this
arrangement is unlawful and requires Judge Pollard’s
disqualification. In a written opinion, Judge Pollard denied
Khadr’s motion. Judge Pollard ruled that the relevant statutes
authorize the civilians who serve as judges on that Court to also
maintain a part-time private law practice.
Khadr has now petitioned this Court for a writ of
mandamus ordering Judge Pollard’s disqualification. To
obtain a writ of mandamus, Khadr must show (among other
things) a “clear and indisputable” right to Judge Pollard’s
disqualification. Cheney v. U.S. District Court for the District
of Columbia, 542 U.S. 367, 381 (2004). Although Khadr’s
arguments carry some force, he has not shown a “clear and
indisputable” right to relief at this time. We therefore deny
the petition. If the U.S. Court of Military Commission
Review decides against Khadr in his pending appeal, he may
renew his arguments about Judge Pollard on direct appeal to
this Court. See 10 U.S.C. § 950g.
I
The Military Commissions Act of 2009 established an
Article I “court of record to be known as the ‘United States
4
Court of Military Commission Review.’” 10 U.S.C.
§ 950f(a). The Court reviews final decisions of military
commissions. Id. § 950f(c)-(d). The Court consists “of one
or more panels, each composed of not less than three judges.”
Id. § 950f(a).
The 2009 Act authorizes both military judges and civilians
to serve on the U.S. Court of Military Commission Review.
Id. § 950f(b). The Secretary of Defense may assign appellate
military judges from the military justice system to serve on the
Court. Id. § 950f(b)(2). In addition, the President, with the
advice and consent of the Senate, may appoint civilians to
serve as judges on the Court. Id. § 950f(b)(3).
The 2009 Act does not prescribe a total number of judges
for the U.S. Court of Military Commission Review, nor does it
prescribe a particular number or percentage of military judges
or civilian judges. Id. § 950f(b). As of now, nine judges
serve on the U.S. Court of Military Commission Review.
Seven are appellate military judges, and two are civilians.
The U.S. Court of Military Commission Review is an
unusual court in that its caseload depends on the number of
military commission proceedings appealed to it. At any given
time, therefore, the Court’s judges may have very little to do.
Consistent with that reality, the military judges who serve
on the U.S. Court of Military Commission Review also
continue to serve on the military appeals courts from which
they are drawn. As for the civilian judges, Congress did not
indicate whether those judges must serve full-time on the Court
or instead may serve part-time and earn outside income while
maintaining a private law practice, for example. In addition,
Congress did not set the compensation for those civilian
5
judges. Nor did Congress specify the conditions under which
the civilian judges may be removed by the President. 1
Faced with statutory silence on those key issues, the
Department of Defense designated the Court’s civilian judges
as “Highly Qualified Experts” and “special government
employees” under the relevant government employment
statutes. See 5 U.S.C. § 9903; 18 U.S.C. § 202. Without
getting too deep into the weeds for now, suffice it to say that
the Department interprets those two statutory designations to
authorize the Court’s civilian judges to serve part-time and
earn outside income. For their part-time service on the Court,
the civilian judges are paid under the Department’s
pre-existing compensation scheme for Highly Qualified
Experts.
The civilian judge in Khadr’s case, Judge William B.
Pollard III, was nominated by President Obama on November
10, 2011, and confirmed unanimously by the Senate on June
21, 2012. Since then, Judge Pollard has served part-time on
the U.S. Court of Military Commission Review pursuant to his
“Highly Qualified Expert” and “special government
employee” designations. He has also continued his private
law practice in New York.
1
The U.S. Court of Military Commission Review created by
the 2009 Act is the successor to a court of the same name established
by the Military Commissions Act of 2006. See Pub. L. No.
109-366, 120 Stat. 2600 (2006). Both military judges and civilians
likewise served on that predecessor court. Those earlier civilian
judges served on a part-time basis and maintained their private law
practices.
6
II
Mandamus “is a drastic and extraordinary remedy
reserved for really extraordinary causes.” Cheney v. U.S.
District Court for the District of Columbia, 542 U.S. 367, 380
(2004) (internal quotation marks omitted). To obtain
mandamus relief, a petitioner must show, among other things,
that “his right to issuance of the writ is clear and indisputable.”
Id. at 381 (internal quotation marks and brackets omitted).
In support of his petition for a writ of mandamus ordering
Judge Pollard’s disqualification, Khadr has advanced four
primary arguments. But as we will explain, Khadr has not
shown a “clear and indisputable” right to mandamus. 2
First, Khadr argues that Judge Pollard’s disqualification is
compelled by the Rules of Practice of the U.S. Court of
Military Commission Review. Those rules are promulgated
(and can be amended) by the Chief Judge of the U.S. Court of
Military Commission Review, subject to approval by the
Secretary of Defense. See Manual for Military Commissions
Rule 1201(b)(6) (2012).
2
The statutes governing military commissions afford this Court
jurisdiction only over “a final judgment rendered by a military
commission.” 10 U.S.C. § 950g(a). This Court has held that
mandamus still remains available to review certain interlocutory
orders. See In re al-Nashiri, 791 F.3d 71, 76 (D.C. Cir. 2015). In
particular, mandamus is appropriate when an interlocutory order
would cause an “irreparable” injury that would otherwise “go
unredressed.” Id. at 79. One such “irreparable” injury, this Court
said in al-Nashiri, is “the existence of actual or apparent bias” by the
judge. Id. (emphasis omitted). In his mandamus petition to this
Court, Khadr contends that Judge Pollard is biased and must
disqualify himself. Therefore, under al-Nashiri, Khadr may seek
mandamus relief.
7
The rules require judges of the U.S. Court of Military
Commission Review to “disqualify themselves under
circumstances set forth in 28 U.S.C. § 455, R.M.C. 902, or in
accordance with Canon 3C, Code of Conduct for United States
Judges as adopted by the Judicial Conference of the United
States.” U.S. Court of Military Commission Review Rules of
Practice Rule 25(a). In turn, all of those referenced provisions
obligate a judge to “disqualify” himself or herself in, among
other circumstances, any “proceeding” in which his or her
“impartiality might reasonably be questioned.”
According to Khadr, Judge Pollard’s impartiality as a
judge on the U.S. Court of Military Commission Review might
reasonably be questioned because the Department of Defense
pays him as a Highly Qualified Expert. Khadr claims that the
designation affords the Department power over Judge
Pollard’s pay and tenure. For example, Khadr says that the
Department may give Judge Pollard a bonus disguised as a
“retention incentive payment.” Department of Defense
Instruction No. 1400.25 Enclosure 3.8.d (Apr. 3, 2013). Or,
Khadr says, the Department may dismiss Judge Pollard at will.
According to Khadr, the Department’s carrots and sticks over
Judge Pollard’s pay and tenure mean that the Judge’s
impartiality might reasonably be questioned. Khadr surmises
that Judge Pollard may be induced to rule more often in favor
of the Government so as to maximize his pay and extend his
tenure.
But the Military Commissions Act of 2009 provides that
the Department of Defense may not “attempt to coerce or, by
any unauthorized means, influence the action of a judge” of the
U.S. Court of Military Commission Review. 10 U.S.C.
§ 949b(b)(1)(A). In line with that statutory prohibition, the
Department of Defense has expressly represented to this Court
8
that it may not pay Judge Pollard any special bonus (including
a retention incentive payment) for his work. See Tr. of Oral
Arg. at 18-20. Likewise, the Department has expressly
represented that Judge Pollard may be removed by the
President only for cause and not at will. Id. at 21-22.
In light of the statute and those explicit representations to
this Court, Khadr has not shown a “clear and indisputable”
right to Judge Pollard’s recusal based on the pay and tenure
arrangements associated with his Highly Qualified Expert
status.
Second, Khadr raises another, related argument under the
appearance of impartiality standard incorporated into the Rules
of Practice. In his capacity as a judge on the U.S. Court of
Military Commission Review, Judge Pollard adjudicates cases
involving the Government. But according to Khadr, Judge
Pollard or his firm could theoretically litigate against the
Government. Khadr says that this arrangement undermines
the appearance of Judge Pollard’s impartiality.
But Khadr has not persuasively explained why Judge
Pollard’s mere employment with a law firm that potentially
litigates cases against the U.S. Government means – clearly
and indisputably – that Judge Pollard may not serve as an
impartial judge on the U.S. Court of Military Commission
Review.
If the statute in fact authorizes Judge Pollard to work
part-time as a judge and maintain a private practice of law, then
we could not say that his impartiality might reasonably be
questioned solely because of his dual employment. The
statute would in effect indicate that it is not reasonable to
question his impartiality solely because of his dual
employment. Cf. Liteky v. United States, 510 U.S. 540, 553 &
9
n.2 (1994). So the question of whether Judge Pollard’s
impartiality might reasonably be questioned turns on whether
the statute in fact authorizes the Judge to maintain a part-time
law practice. To obtain mandamus, moreover, Khadr must
show a “clear and indisputable” right to relief. Putting those
two points together, Khadr must show “clearly and
indisputably” that the statute does not authorize Judge
Pollard’s dual employment.
We cannot say that. Congress specifically provided that
civilians could serve as judges on the U.S. Court of Military
Commission Review. See 10 U.S.C. § 950f(b)(3). Given the
limited and sporadic workload of that Court, Congress
undoubtedly anticipated that those civilians might be part-time
judges and would have other cases and matters in their private
law practices. Indeed, civilians served as part-time judges on
the predecessor court to the U.S. Court of Military
Commission Review while also maintaining private law
practices. Yet Congress took no steps in the 2009 Act to bar
civilians from serving part-time on the current U.S. Court of
Military Commission Review while simultaneously
maintaining a private law practice.
Because Khadr has not “clearly and indisputably” shown
that the 2009 Act precludes civilians from serving part-time on
the Court while maintaining a private law practice, we may not
grant mandamus relief on this basis.
Third, Khadr contends that Judge Pollard must disqualify
himself because, according to Khadr, the Judge’s part-time
private practice of law violates 18 U.S.C. § 203(a), a criminal
statute. 3 As applicable here, Section 203(a) prohibits covered
3
This provision provides as follows: “Whoever, otherwise
than as provided by law for the proper discharge of official duties,
10
federal employees from receiving compensation for
representing parties in claims either against or substantially
involving the United States.
Khadr argues that Judge Pollard’s continued private
practice of law – to the extent his firm is involved in claims
against or involving the United States – violates Section
203(a). The Government responds that the Department of
Defense designated Judge Pollard as a “special government
employee.” See 18 U.S.C. § 202(a). Special government
employees may work for temporary stints in government
(full-time or part-time) and are deemed exempt from certain
otherwise applicable federal conflict of interest prohibitions,
including Section 203(a). Id. Special government
employees are instead subject to Section 203(a) only in narrow
circumstances – for example, “only in relation to a particular
matter involving a specific party or parties in which such
employee has at any time participated personally and
substantially.” Id. § 203(c)(1).
directly or indirectly demands, seeks, receives, accepts, or agrees to
receive or accept any compensation for any representational
services, as agent or attorney or otherwise, rendered or to be
rendered either personally or by another . . . at a time when such
person is an officer or employee or Federal judge of the United
States in the executive, legislative, or judicial branch of the
Government, or in any agency of the United States, in relation to any
proceeding, application, request for a ruling or other determination,
contract, claim, controversy, charge, accusation, arrest, or other
particular matter in which the United States is a party or has a direct
and substantial interest, before any department, agency, court,
court-martial, officer, or any civil, military, or naval commission . . .
shall be subject to the penalties set forth in section 216 of this title.”
18 U.S.C. § 203(a).
11
The Section 203 question arises in this case because
special government employees – to qualify for that status –
must be employees “of the executive or legislative branch of
the United States Government.” Id. § 202(a). According to
Khadr, Judge Pollard is an employee of the “judicial branch,”
which the relevant statute defines as encompassing “any court
created pursuant to article I of the United States Constitution.”
Id. § 202(e)(2). The U.S. Court of Military Commission
Review is a court created pursuant to Article I of the U.S.
Constitution. Khadr therefore contends that Judge Pollard
does not qualify as a “special government employee” for
purposes of Section 203.
The Government disagrees. It says that military appellate
courts – including the U.S. Court of Military Commission
Review – are part of the executive branch. See Edmond v.
United States, 520 U.S. 651, 664-65 & n.2 (1997). In
addition, the Government points out that Congress expressly
designated similar Article I judges as “special government
employees.” See 10 U.S.C. § 942(e)(4) (Senior judges on the
U.S. Court of Appeals for the Armed Forces “shall be
considered to be a special government employee” while
performing their judicial duties.). Therefore, according to the
Government, the Department of Defense could appropriately
designate Judge Pollard as a “special government employee.”
We need not definitively resolve that statutory debate at
this stage. Given the language of the relevant statutes,
Khadr’s Section 203(a) argument packs substantial force. But
the Government raises substantial responses about Congress’s
intent. We cannot say that the statutes afford Khadr a “clear
and indisputable” right to mandamus relief.
That said, this is a serious issue – one that Congress and
the Department of Defense would be wise to address and
12
resolve promptly, either by expressly barring the civilian
judges on the U.S. Court of Military Commission Review from
the private practice of law or by making crystal clear that the
civilian judges on the Court may serve as special government
employees and continue their part-time private practice of law.
Fourth, Khadr claims that Judge Pollard has violated 28
U.S.C. § 454. That section states in its entirety: “Any justice
or judge appointed under the authority of the United States who
engages in the practice of law is guilty of a high
misdemeanor.”
The parties disagree about the applicability of that section
to the judges of the U.S. Court of Military Commission
Review. Khadr points to the text of the law and says that
Judge Pollard is a “judge appointed under the authority of the
United States” who is engaging “in the practice of law”
through his private law practice. Simple enough.
In response, the Government contends that the terms
“judge of the United States” and “court of the United States”
are defined for purposes of Title 28 – including Section 454 –
so as to exclude the U.S. Court of Military Commission
Review. See 28 U.S.C. § 451. The Government further
asserts that those narrow definitions apply to the phrase “judge
appointed under the authority of the United States” in Section
454 of the same title, and that Judge Pollard is therefore not
covered by Section 454. In response, Khadr argues that
Section 454’s phrase “judge appointed under the authority of
the United States” sweeps more broadly than the term “judge
of the United States,” and that Judge Pollard is a judge
appointed under the authority of the United States for purposes
of Section 454.
13
Again, we need not resolve this dispute at this stage.
Neither this Court nor any other court of appeals has analyzed
whether Section 454 applies to judges on the U.S. Court of
Military Commission Review. And the Government raises a
substantial argument about why Section 454 does not apply to
judges on that Court. We cannot say that Section 454 affords
Khadr a “clear and indisputable” right to relief.
***
Mandamus is a “drastic and extraordinary remedy.”
Cheney v. U.S. District Court for the District of Columbia, 542
U.S. 367, 380 (2004) (internal quotation marks omitted).
Appellate courts grant mandamus only rarely, reserving the
writ for cases where petitioners show a “clear and
indisputable” right to relief. The regular course of appeal is
the primary vehicle for appellate review. See, e.g., Kerr v.
U.S. District Court for the Northern District of California, 426
U.S. 394, 403 (1976).
Applying the traditional “clear and indisputable” standard,
we deny Khadr’s petition for a writ of mandamus. If the U.S.
Court of Military Commission Review rules against Khadr in
his pending appeal, he may renew his arguments about Judge
Pollard on direct appeal to this Court. See 10 U.S.C. § 950g.
In other words, our denial of mandamus relief does not
preclude Khadr from advancing these same arguments in a
future appeal where the standard of review will not be so
daunting.
Although we deny the writ, we cannot deny that Khadr has
raised some significant questions. We encourage Congress
and the Executive Branch to promptly attend to those issues
and to make clear, one way or the other, whether the civilians
who serve as judges on the U.S. Court of Military Commission
14
Review may continue to engage in the part-time practice of law
and, if so, the circumstances under which they may do so.
We deny the petition.
So ordered.