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.