As we all know, it is impermissible to include a waiver of appellate review as a pretrial agreement term in a court-martial.  See R.C.M. 705(c)(1)(B) (“A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: . . . the complete and effective exercise of post-trial and appellate rights”); see also United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007).  JO’C has written a law review article proposing the elimination of that ban on waiving appellate review as a PTA term.  John F. O’Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008).  And the Cox Commission II report noted that proposal and suggested that it be studied.

The military commissions system provides an opportunity to study a system that is somewhat similar to the court-martial system but that allows waiver of appellate review as a PTA term.  The PTA under which Omar Khadr pleaded guilty last week (available here, courtesy of the Miami Herald) included a requirement for waiving appellate review.  Here’s what it provided:

I offer and agree to . . . f.  Sign and execute the document found at Attachment B, a two (2) page document that is Military Commission Form 2330, Waiver/Withdrawal of Appellate Rights, within the specified timeframe found within Attachment B and R.M.C. 1110. In doing so I understand I will. at the time of execution of Attachment B, waive my rights to appeal this conviction, sentence, and/or detention to the extent permitted by law, or to collaterally attack my conviction, sentence, and/or detention in any judicial forum (found in the United States or otherwise) or proceeding, on any grounds, except that I may bring a post-conviction claim if any sentence is imposed in excess of the statutory maximum sentence or in violation of the sentencing limitation provisions contained in this agreement. I have been informed by my counsel orally and in writing of my post-trial and appellate rights.

26 Responses to “Khadr PTA bargained away appellate rights”

  1. Anonymous says:

    If your goal is to make appeals for all practicable purposes tied only to contested cases then I guess this is a good idea.

    I don’t think that should be the goal. I guess I don’t see what’s broken that needs to be fixed here.

  2. Anonymous says:

    It seems a bit of a legal fiction that any appellate waiver is really voluntary when the alternative is law of war detention for the rest of your life in lieu of trial or law of war detention for the rest of your life after your sentence is served. This guy pleaded guilty to murders he wasn’t even charged with.

  3. John O'Connor says:

    I would wail “why are we giving Gitmo detainees rights we deny to our own servicemembers,” but I think that’s kind of a stupid meme.

  4. Anonymous says:

    Spoken like a true 45er.

  5. Anonymous says:

    Two points in response. First, if a capital accused were allowed to waive appellate review in exchange for a non-capital referral/LWOP, you would probably never see another case go capital or see another death sentence that results in 20 plus years of appellate review to ensure guilt beyond ANY doubt and 100% perfect trial. Second, it is precisley your type of argument that militates against the CA NOT referring a case capital because the G doies not trust you and 45; the fear is that you will purport to waive, then when the case goes up for 66 review you say your waiver was involuntary and then you attack the case and whittle the sentence away bit by bit.

  6. Anonymous says:

    I suppose, but how would you articulate the differences which support waivers in military commissions (and in the federal and most state criminal justice systems) and not in courts-martial?

  7. John O'Connor says:

    Well, I support allowing appellate review waivers in non-capital courts-martial, probably more than any other human on this Earth. So I wouldn’t justify the difference here.

    But I would advocate allowing appellate review waivers in PTAs on the merits, and not through a lazy reference to commissions. To me, courts-martial and commission are apples and oranges, with different suits of rights and obligations. That’s not to say that there shouldn;t be similarities between the two systems, but the reason for that is not simply because one system or the other has Procedure X or Procedure Y.

  8. who's your daddy says:

    It is done every day in hundreds of cases in Article III U.S. District Courts across the nation. Eliminates an enormous waste of time for most cases. A long overdue efficiency. They should also eliminate factual review by the CCA’s. That was created at a time when Law Officers presided over cases and in the wake of having court-martials without certified lawyers acting as prosecutors etc….

  9. Anonymous says:

    I don’t really having a feeling one way or the other on factual insufficiency review.

    As far as I can tell, though, the CCAs are unique among appellate courts in having to be personally convinced of the appellant’s guilt beyond a reasonable doubt before they can affirm a finding of guilt.

  10. Anon says:

    He waived more than his appellate rights! That PTA virtually guarantees litigation once he’s back in Canada. What is the US going to do when he does litigate? Demand extradition?

  11. Anonymous says:

    I dont think that’s true. do you really think Akbar, or Hasan, or Loving, or Gray would have gotten LWOP referral if they’d simply been allowed to waive appellate review?

    That seems a wee bit…unrealistic on your part.

  12. Anonymous says:

    in so many ways and as we are aware, we aren’t an Article III courts, we have challenges and flaws that require special protections.

    But hey, if we want tenured judges, and military counsel who actually gasp specialize in criminal justice for more than 18 months then I’d begin to agree with you.

  13. Cloudesley Shovell says:

    Anon 344pm–I am curious: which provision(s) of the agreement, exactly, would guarantee litigation? In what court will Khadr bring said litigation? What relief will Khadr purport to demand?

  14. Weirick says:

    Shovell (we True-born Sons of Liberty eschew peerage),

    Though this would not guarantee litigation, Khadr at a minimum retains the right to appeal on the basis of ineffective assistance of counsel. See, United States v. Johnson, 410 F.3d 137 (4th Cir. 2005). You likely remember this from your PTA relating to charges of improper hazarding of a vessel.

  15. Cloudesley Shovell says:

    Anon at 344p said that the litigation would commence once Khadr was back in Canada. So what Canadian court is going to grant him effective relief? Why wait until returning to Canada to litigate? (Other than that pesky “never come back into the USA, including US airspace” clause.) Most importantly, once back in Canada, why bother?

    Why would a US court entertain an appeal from someone remaining in Canada? After all, one of the results of a successful appeal is another trial. If he wants relief from the US courts he ought to be perfectly willing to make himself subject to the continuing personal jurisdiction of those courts (and commissions).

    As for me, I had a swell PTA. Funeral parades, buried at Westminster Abbey under my own marble monument, and even a pub named after me. A fellow could do worse.

  16. Anon says:

    He would wait until returning to Canada so as not to have his stay at GTMO extended. Once in Canada, habeas litigation seems likely as he will still be under a “sentence.” The Canadian Courts have already been sympathetic to him.

  17. Cloudesley Shovell says:

    Forgive my incredible ignorance, but what can a Canadian court do that would have any legal effect on a US military commission sentence? I am still curious: What relief would Khadr purport to demand?

  18. Anonymous says:

    Absolutely, get rid of factual sufficiency. The standard is stupid and the appellate judges do not follow it; they do not make allowances for not having observed the witnesses. As all of you know, you choose to beloive or disbelive a witness not just on what they say, but how they say it. That does not come across in black ink.

  19. Anon says:

    Admiral, Khadr’s PTA gave him 8 years of confinement with no “time served” credit. He has to do one year at GTMO [supposedly to “cooperate”] and the remaining 7 in a Canadian prison, although it appears that he might be eligible for parole at about the 4 1/2 year point or so. So, the anticipated “relief” would be that his confinement was illegal, the plea deal was coerced and to get him released as soon as possible.

    Cf. another member of the British Empire, former Aussie detainee David Hicks, who as part of his PTA was sent back to Australia, who in turn “early paroled” him.

  20. Cloudesley Shovell says:

    Aha, alles klar. Thanks for the explanation. I completely missed that part when I scanned through the PTA. It’ll be interesting to see how that all plays out next year when it comes time for Canada to decide whether they’ll really take him back or not.

    I wonder how the Canadian courts will treat his appellate rights waiver, since it explicitly includes courts outside the US, and also contains a waiver of collateral attacks (to the extent one can waive things like IAC as Weirick pointed out).

  21. Weirick says:

    Cloudesley,

    My point was that Khadr could, during the next 12 months, file a habeas action based on ineffective assistance of counsel. At minimum, that was an appeal right that he could not waive.
    Note: there is no evidence, nor am I suggesting there is any, of IAC.

  22. Anon. says:

    Isn’t there a middle ground that might prove sensible, such as allowing these waivers in SpCMs/SCMs?

  23. Dew_Process says:

    I would anticipate seeing an application for a writ of habeas corpus, alleging (among other things) that the Military Commission which sentenced him had no “jurisdiction.”

    The Supreme Court of Canada has already ruled that Khadr has been deprived “of his right to liberty and security of the person” under the Canadian Charter of Rights. The decision is an interesting read:
    http://csc.lexum.umontreal.ca/en/2010/2010scc3/2010scc3.pdf

  24. Anon says:

    No silly. Code 45 knows better than you and the client what is best.

  25. Dwight Sullivan says:

    Anon 0758 — cases in which the accused most needs the bargaining power that a waiver of appellate review would provide are GCMs. It is almost certainly the case that there are potentially capital cases where both the accused and the government would want to enter into a pretrial agreement that included a waiver of appellate review but where the CA declines to do so because under curernt military law it isn’t possible for the accused to waive appellate review. Why should the system compel a capital trial if both parties think it’s in their interest to enter a PTA including a waiver of appellate review?

  26. Stefan says:

    When it comes to appellate rights, our system has two oddities as compared to our civilian friends. First, as noted above, we prevent accuseds from receiving anything in return for waiving appellate rights. Second, even if you plead not guilty, you have NO right to a substantive appeal if your sentence doesn’t meet the jurisdictional minimums.

    It is just my personal opinion, but this seems an odd use of appellate resources. An accused who willingly pleads guilty, essentially, must have his case reviewed on appeal. An accused who contests the charges with every breath, but is nonetheless convicted of a felony, will be unable to appeal his conviction if he gets a five month, no-kick sentence. (And will carry the scarlet letter of a federal conviction for life).

    I know I am not the first to say this on CAAFLOG, but our current way of doing business no longer makes sense. Instead of reviewing the guilty pleas of people who wanted to plead guilty, the appellate system could be reviewing cases where an accused contested the specifications.

    Seems like there may be at least one thing we could learn from the commissions process…

    MAJ Stefan Wolfe
    US Army
    ILE Class 30B