In re: Omar Khadr
2016 U.S. App. LEXIS 9227
| D.C. Cir. | 2016Background
- Omar Khadr, captured at 15 after killing a U.S. soldier in 2002, pled guilty in 2010 to war-crimes-related charges before a military commission and was transferred to Canada in 2012.
- In 2013 Khadr sought review of his commission conviction; his appeal to the U.S. Court of Military Commission Review (CMCR) is held pending en banc resolution of related law.
- The CMCR panels include military appellate judges and civilian judges appointed by the President; civilian judges’ role, compensation, part-time status, and removal conditions were not specified by the 2009 Act.
- Judge William B. Pollard III, a civilian CMCR judge, serves part-time as a “Highly Qualified Expert”/special government employee and maintains a private law practice; Khadr moved to disqualify him.
- Khadr petitioned this court for mandamus ordering Judge Pollard’s disqualification, arguing (1) Rule-based recusal/appearance problems tied to DoD pay/tenure control, (2) appearance problems from private practice, (3) violations of 18 U.S.C. § 203(a) (conflict of interest), and (4) violation of 28 U.S.C. § 454 (practice of law by a federally appointed judge).
- The D.C. Circuit denied mandamus, finding Khadr had not shown a clear and indisputable right to relief but recognized the statutory issues as substantial and urged Congressional/executive clarification.
Issues
| Issue | Khadr's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Rule-based recusal required because DoD pay/tenure influence creates appearance of bias | Pollard’s designation as a Highly Qualified Expert lets DoD control pay/bonuses or removal, creating a reasonable question of impartiality | DoD statute forbids coercing judges; DoD represented it cannot grant special bonuses and Pollard is removable only for cause | Denied mandamus — no clear and indisputable right to recusal on this ground |
| Whether dual role (part-time CMCR judge + private practice) creates disqualifying appearance of impartiality | Pollard’s private practice could litigate against the Government, undermining appearance of impartiality | Congress authorized civilian CMCR judges; limited caseload makes part-time service foreseeable; predecessors served part-time | Denied mandamus — statute does not clearly preclude part-time private practice |
| Whether Pollard’s private practice violates 18 U.S.C. § 203(a) because he is not a special government employee | Pollard is a judge of an Article I court, thus not an executive/legislative branch employee and cannot be a special government employee exempting him from §203(a) | Military appellate/Article I courts can be part of executive branch; Congress has treated similar judges as special government employees | Denied mandamus — statutory question substantial but not clearly resolved in Khadr’s favor |
| Whether 28 U.S.C. § 454 (crime for a U.S.-appointed judge to practice law) applies to CMCR civilian judges | Section 454’s phrase “judge appointed under the authority of the United States” covers CMCR judges, so Pollard is guilty of a high misdemeanor if he practices law | Definitions in Title 28 limit “judge of the United States” and related phrases so they exclude CMCR judges; Section 454 thus does not apply | Denied mandamus — unresolved statutory interpretation; not a clear and indisputable right |
Key Cases Cited
- Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (mandamus requires a clear and indisputable right to relief)
- Liteky v. United States, 510 U.S. 540 (appearance-of-bias standard and reasonableness of questioning impartiality)
- Edmond v. United States, 520 U.S. 651 (classification of military judges and separation-of-powers context)
- Kerr v. U.S. District Court for the Northern District of California, 426 U.S. 394 (ordinary appellate review preferred to mandamus)
- In re al-Nashiri, 791 F.3d 71 (D.C. Cir.) (mandamus appropriate for actual or apparent bias causing irreparable injury)