A US military lawyer for Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] filed an emergency petition [text, PDF] with the Supreme Court [official website] on Monday, seeking to stay proceedings in Khadr's military commission. The petition asks the court to issue a writ of mandamus [Cornell LII backgrounder] to the US Court of Appeals for the District of Columbia Circuit [official website], ordering it to rule on a similar petition filed in that court in April. In the alternative, it argued that the Supreme Court itself should rule on the stay due to the short amount of time before the start of the trial. The petition, filed along with a request for expedited consideration, argues that the military commission system set up by the Military Commissions Act of 2009 [texts, PDF] is unconstitutional because in enacting it, Congress exceeded the authority given to it by the Define and Punish Clause of the US Constitution [text]. The petition explained:
Petitioner's arguments ... are likely to succeed, will have an enormous impact on the constitutional viability of the military commissions system as a whole, and have never been addressed by this Court before. [T]he Define and Punish Clause is the enumerated power authorizing Congress to enact law-of-war military commissions to try "Offenses against the Law of Nations," ... impos[ing] limits on the scope and nature of the jurisdiction of military commissions so enacted[.] ... [T]he Military Commissions Act of 2009 exceeds those limits, based on the historical background of the adoption of the Define and Punish Clause, the consistent jurisdictional practices of American military commissions since before the Revolutionary War, and this Court's precedents on military commissions' jurisdiction and status as creatures of the law of war. [B]ecause Congress was without authority ... to enact the military commission ... Petitioner has the right not to be put on trial before it.The petition further argues that the court must issue a stay and consider the constitutional question, otherwise Khadr will be subjected to an unconstitutional trial, inflicting "significant harm."
Last month, the US District Court for the District of Columbia [official website] allowed Khadr to amend [JURIST report] his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission. Khadr's lawyer announced that week that he will vigorously defend Khadr at his trial scheduled to begin August 10 [JURIST reports]. Khadr fired his US civilian lawyers in July and requested that his US military lawyer be fired as well. Judge Patrick Parrish denied Khadr's request and ordered US Army Lt-Col. Jon Jackson to remain Khadr's lawyer and provide him with a defense at trial. Also in July, Khadr rejected a plea deal [JURIST report] offered by the US government, which would have resulted in a five-year prison sentence. Khadr is facing murder and terrorism charges [JURIST report] for allegedly throwing a grenade that killed one US soldier and injuring another. If he is found guilty, he could face a life sentence. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text].