The CMCR’s Peculiar Request in the al-Qosi Litigation

I have been rather critical in the past of the Court of Military Commission Review (CMCR)—the intermediate appellate court Congress created in 2006 to sit between the Guantánamo military commissions and the U.S. Court of Appeals for the D.C. Circuit. As I wrote last May, “not only does the CMCR suffer from inherent structural flaws that the political branches seem uninterested in fixing, but its substantive role in the military commission process has turned out to be not only woefully inefficient, but affirmatively counter-productive from both the government’s and the defendants’ perspectives.”

Then I learned (hat tip: the indispensable Shayana Kadidal) about an order that the CMCR handed down last month in the al-Qosi appeal. If you’ve left your scorecards at home, recall that al Qosi had pled guilty in a military commission to two offenses (conspiracy and material support), and, in exchange for the plea, was released from confinement in 2012 and returned to Sudan. After the D.C. Circuit’s rulings in the Hamdan and al Bahlul cases called the constitutionality of both of those charges into question, al Qosi’s lawyers sought to appeal—raising the question of whether he had forfeited his right to appeal in his plea agreement. (You might think the answer is obvious, but remember that David Hicks was able to benefit from those decisions despite his plea deal.) But either way, instead of fighting over that issue, the litigation of his appeal in the CMCR for the past three (!) years has focused on whether al Qosi’s lawyers actually have his authorization to pursue such an appeal. In 2014, the CMCR said no—and the D.C. Circuit refused a request from al Qosi’s putative counsel for a writ of mandamus that, they argued, would have helped them to prove his authorization.

That might have been the end of the matter, but a different attorney (who had already represented al Qosi at trial) sought to appeal on his behalf instead—prompting the CMCR’s ruling last month that, like the lawyer at issue in the first ruling, she, too, “has not provided the Court with any evidence that al Qosi has consented to be represented by either of them in appellate matters, or that he has authorized them to proceed with this appeal.” Thus, the CMCR ordered discovery on the question of whether al Qosi had authorized either of his putative lawyers to appeal. So far, so good.

But then, and apparently without any prompting, the three-judge panel included a very strange paragraph:

There is another issue that may bear upon this appeal. For several years there have been reports that since his release in 2012, al Qosi has joined Al-Qaida of the Arabian Peninsula and has urged attacks on the United States. See, e.g., Miami Hearld [sic], “Freed Guantánamo Convict Returns to the Fight,” Dec. 10, 2015, http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/artic le49022855.html. Last accessed March 11, 2017. Whether this is true needs to be answered, and the Government will be directed to do so. What impact any postrelease participation in hostilities against the United States or its coalition partners, if any, may have on the instant appeal is for another day (emphasis added).

Yes, you read that correctly. In a criminal appeal of a 2010 conviction, where the central issues are whether the defendant has authorized the appeal and whether his waiver of his right to appeal in his plea agreement precludes relief, the CMCR on its own motion, and without any suggestion from the parties, has apparently decided to find out what the defendant has been up to since his release—and has ordered the government to “file with the Court a statement signed by counsel for the Government stating whether the Government contends that al Qosi is an enemy belligerent, privileged or unprivileged, currently or at any time since his 2012 release and repatriation, and the factual basis for the Government’s contention.”

Even assuming the allegations in the Miami Herald story are accurate, there is just no legal reason why al Qosi’s post-release activities can or should bear upon the legal questions that his post-conviction appeal present to the CMCR. Although there is something called the “fugitive disentitlement doctrine,” that’s all about (1) civil proceedings; that are (2) brought by fugitives from justice. A post-conviction criminal appeal by an individual who is not currently a fugitive as defined by federal law, and who seeks only to challenge the constitutionality of the charges against him, is, it seems to me, a matter over which the defendant’s post-release conduct is categorically irrelevant.

Don’t get me wrong; the CMCR hasn’t relied on this information yet. And I don’t think such a query is beyond its power to make. But for a court that has repeatedly embraced such a limited (and, I’ve argued, overly so) conception of its power and authority to raise this issue on its own in a case in which it can’t possibly have legal bearing is more than a little strange—and shouldn’t do a lot to bolster our confidence in its proceedings.