67 F.4th 413
D.C. Cir.2023Background
- Omar Khadr, a Canadian captured in 2002 at age 15 after a firefight in Afghanistan in which a U.S. soldier died; charged in 2007 before a military commission.
- In October 2010 Khadr entered a pretrial agreement: pleaded guilty to several charges and executed Form 2330, expressly waiving appellate review; the military commission later sentenced him to 40 years.
- In May 2011 the convening authority reduced the approved sentence to 8 years; Khadr did not refile the appeal waiver after that action.
- Khadr was transferred to Canada in 2012 and later released; he attempted to initiate review in the CMCR in 2013; the CMCR held the appeal in abeyance pending related cases and later dismissed for lack of jurisdiction (Oct. 21, 2021), remanding to the convening authority.
- The convening authority declined to refer the case to the CMCR, concluding Khadr’s waiver remained binding; Khadr petitioned the D.C. Circuit to review the CMCR dismissal and to challenge his convictions on multiple constitutional and statutory grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Khadr waived his right to appellate review in the D.C. Circuit | Khadr argues his PTA/Form 2330 waiver is unenforceable (timing, statute, regulation) and therefore he may seek review | Government argues the written waiver was knowing, voluntary and covers his claims; it bars appellate review | Court: Waiver was unambiguous, knowing, intelligent and voluntary; petition dismissed for waiver |
| Whether 10 U.S.C. § 950c(b)(3) or R.T.M.C. rules bar anticipatory waivers of this Court’s review | Khadr: statutory/regulatory scheme prohibits waiver before convening authority action (so his anticipatory waiver is invalid) | Govt: § 950c(b)(3) and the regulation address waiver of CMCR review only; statute is silent as to D.C. Circuit waiver | Court: Statute/regulation do not preclude waiver of D.C. Circuit review; no post-action filing requirement for federal-court waiver |
| Whether Class v. United States prevents waiver of constitutional challenges to the statute of conviction | Khadr: Class means constitutional challenges to statute of conviction cannot be waived by plea/agreements | Govt: Class was narrow — a guilty plea alone does not bar such challenges; parties can expressly waive constitutional claims | Court: Class is narrow; express waivers can and did bar Khadr’s non-jurisdictional constitutional claims |
| Whether Khadr’s constitutional and specification-sufficiency claims are jurisdictional/non-waivable | Khadr: these claims are jurisdictional or otherwise non-waivable under military rules | Govt: These challenges attack the merits/statute, not the court’s power, and thus are waivable/forfeitable | Court: These claims are not jurisdictional; Al Bahlul I controls — they can be waived/forfeited and were waived here |
| Whether Khadr’s guilty plea and the waiver were knowing and voluntary | Khadr: plea invalid because judge mischaracterized or wrongly decided legal issues; potential gaps in record/colloquy | Govt: Written PTA/Form 2330, signatures, and on-the-record colloquy support voluntariness | Court: Record shows plea and waiver were knowing, intelligent, and voluntary; challenge to plea fails |
Key Cases Cited
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (Article III jurisdiction ordinarily must be resolved before merits)
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (courts may choose among threshold grounds to deny merits)
- Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc) (constitutional challenges to MCA are forfeitable and not jurisdictional)
- Al Bahlul v. United States, 967 F.3d 858 (D.C. Cir. 2020) (later panel decision addressing related issues)
- Guillen v. United States, 561 F.3d 527 (D.C. Cir. 2009) (anticipatory appeal waivers enforceable if knowing and voluntary)
- Class v. United States, 138 S. Ct. 798 (2018) (guilty plea alone does not necessarily waive statutory-constitutionality challenge)
- United States v. Cotton, 535 U.S. 625 (2002) (defects in indictment do not deprive court of jurisdiction)
- Garza v. Idaho, 139 S. Ct. 738 (2019) (defendants may challenge validity of waivers/pleas despite having waived other rights)
- United States v. Lee, 888 F.3d 503 (D.C. Cir. 2018) (factors for assessing whether appeal waiver was knowing and voluntary)
- In re al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015) (procedural discussion of military commission referrals)