In re: Omar Khadr

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2016 Decided May 20, 2016

No. 14-1227

IN RE: OMAR KHADR,

PETITIONER

On Petition For A Writ of Mandamus and Prohibition to the

United States Court of Military Commission Review

Samuel T. Morison, Attorney, Office of Military

Commissions Defense Organization, argued the cause and

filed the briefs for petitioner. Justin J. Swick, Attorney,

entered an appearance.

Eugene R. Fidell was on the brief for amicus curiae Ethics

Bureau at Yale in support of petitioner.

Joseph F. Palmer, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Steven M. Dunne, Chief, Appellate Unit, and John F. De Pue,

Attorney.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: Omar Ahmed Khadr was a

member of al Qaeda. On July 27, 2002, at the age of 15,

2

Khadr took part in a firefight in Afghanistan against U.S.

forces. During the battle, Khadr killed a U.S. Army soldier,

Sergeant First Class Christopher Speer.

Khadr was captured that day by U.S. forces. He was later

transferred to the U.S. Naval Base at Guantanamo Bay, Cuba,

for continued detention as an enemy combatant in the U.S. war

against al Qaeda.

In 2007, the United States brought war crimes charges

against Khadr and sought to try him before a U.S. military

commission. The charges included conspiracy to commit

murder and material support for terrorism. See 10 U.S.C.

§ 950t(25), (29). In 2010, the United States and Khadr

reached a plea agreement. Pursuant to the deal, Khadr pled

guilty and was sentenced to eight years in military prison.

Two years later, in 2012, the United States transferred Khadr to

Canadian authorities. The Canadian authorities subsequently

released Khadr, and he is now apparently free on bail in

Canada.

In 2013, more than three years after his guilty plea and

about a year after he had been turned over to Canada, Khadr

appealed his military commission conviction to the U.S. Court

of Military Commission Review. Among other arguments,

Khadr contended that conspiracy and material support for

terrorism – two of the offenses to which he pled guilty – were

not war crimes triable by military commission, at least not back

in 2002 when he engaged in the charged conduct. Khadr’s

appeal is being held in abeyance by the U.S. Court of Military

Commission Review pending our Court’s en banc resolution of

Bahlul v. United States, No. 11-1324.

The U.S. Court of Military Commission Review consists

of two categories of judges: (i) appellate military judges in the

3

military justice system who are designated by the Secretary of

Defense to serve on the Court and (ii) civilians who are

appointed by the President with the advice and consent of the

Senate to serve as judges on the Court. See 10 U.S.C.

§ 950f(b).

The U.S. Court of Military Commission Review ordinarily

sits in panels of three judges. See id. § 950f(a). Khadr has

moved for one of the three judges on his appeal – Judge

William B. Pollard III – to disqualify himself. Judge Pollard

is a civilian who serves as a part-time judge on the Court. He

also maintains a private law practice. Khadr contends that this

arrangement is unlawful and requires Judge Pollard’s

disqualification. In a written opinion, Judge Pollard denied

Khadr’s motion. Judge Pollard ruled that the relevant statutes

authorize the civilians who serve as judges on that Court to also

maintain a part-time private law practice.

Khadr has now petitioned this Court for a writ of

mandamus ordering Judge Pollard’s disqualification. To

obtain a writ of mandamus, Khadr must show (among other

things) a “clear and indisputable” right to Judge Pollard’s

disqualification. Cheney v. U.S. District Court for the District

of Columbia, 542 U.S. 367, 381 (2004). Although Khadr’s

arguments carry some force, he has not shown a “clear and

indisputable” right to relief at this time. We therefore deny

the petition. If the U.S. Court of Military Commission

Review decides against Khadr in his pending appeal, he may

renew his arguments about Judge Pollard on direct appeal to

this Court. See 10 U.S.C. § 950g.

I

The Military Commissions Act of 2009 established an

Article I “court of record to be known as the ‘United States

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Court of Military Commission Review.’” 10 U.S.C.

§ 950f(a). The Court reviews final decisions of military

commissions. Id. § 950f(c)-(d). The Court consists “of one

or more panels, each composed of not less than three judges.”

Id. § 950f(a).

The 2009 Act authorizes both military judges and civilians

to serve on the U.S. Court of Military Commission Review.

Id. § 950f(b). The Secretary of Defense may assign appellate

military judges from the military justice system to serve on the

Court. Id. § 950f(b)(2). In addition, the President, with the

advice and consent of the Senate, may appoint civilians to

serve as judges on the Court. Id. § 950f(b)(3).

The 2009 Act does not prescribe a total number of judges

for the U.S. Court of Military Commission Review, nor does it

prescribe a particular number or percentage of military judges

or civilian judges. Id. § 950f(b). As of now, nine judges

serve on the U.S. Court of Military Commission Review.

Seven are appellate military judges, and two are civilians.

The U.S. Court of Military Commission Review is an

unusual court in that its caseload depends on the number of

military commission proceedings appealed to it. At any given

time, therefore, the Court’s judges may have very little to do.

Consistent with that reality, the military judges who serve

on the U.S. Court of Military Commission Review also

continue to serve on the military appeals courts from which

they are drawn. As for the civilian judges, Congress did not

indicate whether those judges must serve full-time on the Court

or instead may serve part-time and earn outside income while

maintaining a private law practice, for example. In addition,

Congress did not set the compensation for those civilian

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judges. Nor did Congress specify the conditions under which

the civilian judges may be removed by the President. 1

Faced with statutory silence on those key issues, the

Department of Defense designated the Court’s civilian judges

as “Highly Qualified Experts” and “special government

employees” under the relevant government employment

statutes. See 5 U.S.C. § 9903; 18 U.S.C. § 202. Without

getting too deep into the weeds for now, suffice it to say that

the Department interprets those two statutory designations to

authorize the Court’s civilian judges to serve part-time and

earn outside income. For their part-time service on the Court,

the civilian judges are paid under the Department’s

pre-existing compensation scheme for Highly Qualified

Experts.

The civilian judge in Khadr’s case, Judge William B.

Pollard III, was nominated by President Obama on November

10, 2011, and confirmed unanimously by the Senate on June

21, 2012. Since then, Judge Pollard has served part-time on

the U.S. Court of Military Commission Review pursuant to his

“Highly Qualified Expert” and “special government

employee” designations. He has also continued his private

law practice in New York.

1

The U.S. Court of Military Commission Review created by

the 2009 Act is the successor to a court of the same name established

by the Military Commissions Act of 2006. See Pub. L. No.

109-366, 120 Stat. 2600 (2006). Both military judges and civilians

likewise served on that predecessor court. Those earlier civilian

judges served on a part-time basis and maintained their private law

practices.

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II

Mandamus “is a drastic and extraordinary remedy

reserved for really extraordinary causes.” Cheney v. U.S.

District Court for the District of Columbia, 542 U.S. 367, 380

(2004) (internal quotation marks omitted). To obtain

mandamus relief, a petitioner must show, among other things,

that “his right to issuance of the writ is clear and indisputable.”

Id. at 381 (internal quotation marks and brackets omitted).

In support of his petition for a writ of mandamus ordering

Judge Pollard’s disqualification, Khadr has advanced four

primary arguments. But as we will explain, Khadr has not

shown a “clear and indisputable” right to mandamus. 2

First, Khadr argues that Judge Pollard’s disqualification is

compelled by the Rules of Practice of the U.S. Court of

Military Commission Review. Those rules are promulgated

(and can be amended) by the Chief Judge of the U.S. Court of

Military Commission Review, subject to approval by the

Secretary of Defense. See Manual for Military Commissions

Rule 1201(b)(6) (2012).

2

The statutes governing military commissions afford this Court

jurisdiction only over “a final judgment rendered by a military

commission.” 10 U.S.C. § 950g(a). This Court has held that

mandamus still remains available to review certain interlocutory

orders. See In re al-Nashiri, 791 F.3d 71, 76 (D.C. Cir. 2015). In

particular, mandamus is appropriate when an interlocutory order

would cause an “irreparable” injury that would otherwise “go

unredressed.” Id. at 79. One such “irreparable” injury, this Court

said in al-Nashiri, is “the existence of actual or apparent bias” by the

judge. Id. (emphasis omitted). In his mandamus petition to this

Court, Khadr contends that Judge Pollard is biased and must

disqualify himself. Therefore, under al-Nashiri, Khadr may seek

mandamus relief.

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The rules require judges of the U.S. Court of Military

Commission Review to “disqualify themselves under

circumstances set forth in 28 U.S.C. § 455, R.M.C. 902, or in

accordance with Canon 3C, Code of Conduct for United States

Judges as adopted by the Judicial Conference of the United

States.” U.S. Court of Military Commission Review Rules of

Practice Rule 25(a). In turn, all of those referenced provisions

obligate a judge to “disqualify” himself or herself in, among

other circumstances, any “proceeding” in which his or her

“impartiality might reasonably be questioned.”

According to Khadr, Judge Pollard’s impartiality as a

judge on the U.S. Court of Military Commission Review might

reasonably be questioned because the Department of Defense

pays him as a Highly Qualified Expert. Khadr claims that the

designation affords the Department power over Judge

Pollard’s pay and tenure. For example, Khadr says that the

Department may give Judge Pollard a bonus disguised as a

“retention incentive payment.” Department of Defense

Instruction No. 1400.25 Enclosure 3.8.d (Apr. 3, 2013). Or,

Khadr says, the Department may dismiss Judge Pollard at will.

According to Khadr, the Department’s carrots and sticks over

Judge Pollard’s pay and tenure mean that the Judge’s

impartiality might reasonably be questioned. Khadr surmises

that Judge Pollard may be induced to rule more often in favor

of the Government so as to maximize his pay and extend his

tenure.

But the Military Commissions Act of 2009 provides that

the Department of Defense may not “attempt to coerce or, by

any unauthorized means, influence the action of a judge” of the

U.S. Court of Military Commission Review. 10 U.S.C.

§ 949b(b)(1)(A). In line with that statutory prohibition, the

Department of Defense has expressly represented to this Court

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that it may not pay Judge Pollard any special bonus (including

a retention incentive payment) for his work. See Tr. of Oral

Arg. at 18-20. Likewise, the Department has expressly

represented that Judge Pollard may be removed by the

President only for cause and not at will. Id. at 21-22.

In light of the statute and those explicit representations to

this Court, Khadr has not shown a “clear and indisputable”

right to Judge Pollard’s recusal based on the pay and tenure

arrangements associated with his Highly Qualified Expert

status.

Second, Khadr raises another, related argument under the

appearance of impartiality standard incorporated into the Rules

of Practice. In his capacity as a judge on the U.S. Court of

Military Commission Review, Judge Pollard adjudicates cases

involving the Government. But according to Khadr, Judge

Pollard or his firm could theoretically litigate against the

Government. Khadr says that this arrangement undermines

the appearance of Judge Pollard’s impartiality.

But Khadr has not persuasively explained why Judge

Pollard’s mere employment with a law firm that potentially

litigates cases against the U.S. Government means – clearly

and indisputably – that Judge Pollard may not serve as an

impartial judge on the U.S. Court of Military Commission

Review.

If the statute in fact authorizes Judge Pollard to work

part-time as a judge and maintain a private practice of law, then

we could not say that his impartiality might reasonably be

questioned solely because of his dual employment. The

statute would in effect indicate that it is not reasonable to

question his impartiality solely because of his dual

employment. Cf. Liteky v. United States, 510 U.S. 540, 553 &

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n.2 (1994). So the question of whether Judge Pollard’s

impartiality might reasonably be questioned turns on whether

the statute in fact authorizes the Judge to maintain a part-time

law practice. To obtain mandamus, moreover, Khadr must

show a “clear and indisputable” right to relief. Putting those

two points together, Khadr must show “clearly and

indisputably” that the statute does not authorize Judge

Pollard’s dual employment.

We cannot say that. Congress specifically provided that

civilians could serve as judges on the U.S. Court of Military

Commission Review. See 10 U.S.C. § 950f(b)(3). Given the

limited and sporadic workload of that Court, Congress

undoubtedly anticipated that those civilians might be part-time

judges and would have other cases and matters in their private

law practices. Indeed, civilians served as part-time judges on

the predecessor court to the U.S. Court of Military

Commission Review while also maintaining private law

practices. Yet Congress took no steps in the 2009 Act to bar

civilians from serving part-time on the current U.S. Court of

Military Commission Review while simultaneously

maintaining a private law practice.

Because Khadr has not “clearly and indisputably” shown

that the 2009 Act precludes civilians from serving part-time on

the Court while maintaining a private law practice, we may not

grant mandamus relief on this basis.

Third, Khadr contends that Judge Pollard must disqualify

himself because, according to Khadr, the Judge’s part-time

private practice of law violates 18 U.S.C. § 203(a), a criminal

statute. 3 As applicable here, Section 203(a) prohibits covered

3

This provision provides as follows: “Whoever, otherwise

than as provided by law for the proper discharge of official duties,

10

federal employees from receiving compensation for

representing parties in claims either against or substantially

involving the United States.

Khadr argues that Judge Pollard’s continued private

practice of law – to the extent his firm is involved in claims

against or involving the United States – violates Section

203(a). The Government responds that the Department of

Defense designated Judge Pollard as a “special government

employee.” See 18 U.S.C. § 202(a). Special government

employees may work for temporary stints in government

(full-time or part-time) and are deemed exempt from certain

otherwise applicable federal conflict of interest prohibitions,

including Section 203(a). Id. Special government

employees are instead subject to Section 203(a) only in narrow

circumstances – for example, “only in relation to a particular

matter involving a specific party or parties in which such

employee has at any time participated personally and

substantially.” Id. § 203(c)(1).

directly or indirectly demands, seeks, receives, accepts, or agrees to

receive or accept any compensation for any representational

services, as agent or attorney or otherwise, rendered or to be

rendered either personally or by another . . . at a time when such

person is an officer or employee or Federal judge of the United

States in the executive, legislative, or judicial branch of the

Government, or in any agency of the United States, in relation to any

proceeding, application, request for a ruling or other determination,

contract, claim, controversy, charge, accusation, arrest, or other

particular matter in which the United States is a party or has a direct

and substantial interest, before any department, agency, court,

court-martial, officer, or any civil, military, or naval commission . . .

shall be subject to the penalties set forth in section 216 of this title.”

18 U.S.C. § 203(a).

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The Section 203 question arises in this case because

special government employees – to qualify for that status –

must be employees “of the executive or legislative branch of

the United States Government.” Id. § 202(a). According to

Khadr, Judge Pollard is an employee of the “judicial branch,”

which the relevant statute defines as encompassing “any court

created pursuant to article I of the United States Constitution.”

Id. § 202(e)(2). The U.S. Court of Military Commission

Review is a court created pursuant to Article I of the U.S.

Constitution. Khadr therefore contends that Judge Pollard

does not qualify as a “special government employee” for

purposes of Section 203.

The Government disagrees. It says that military appellate

courts – including the U.S. Court of Military Commission

Review – are part of the executive branch. See Edmond v.

United States, 520 U.S. 651, 664-65 & n.2 (1997). In

addition, the Government points out that Congress expressly

designated similar Article I judges as “special government

employees.” See 10 U.S.C. § 942(e)(4) (Senior judges on the

U.S. Court of Appeals for the Armed Forces “shall be

considered to be a special government employee” while

performing their judicial duties.). Therefore, according to the

Government, the Department of Defense could appropriately

designate Judge Pollard as a “special government employee.”

We need not definitively resolve that statutory debate at

this stage. Given the language of the relevant statutes,

Khadr’s Section 203(a) argument packs substantial force. But

the Government raises substantial responses about Congress’s

intent. We cannot say that the statutes afford Khadr a “clear

and indisputable” right to mandamus relief.

That said, this is a serious issue – one that Congress and

the Department of Defense would be wise to address and

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resolve promptly, either by expressly barring the civilian

judges on the U.S. Court of Military Commission Review from

the private practice of law or by making crystal clear that the

civilian judges on the Court may serve as special government

employees and continue their part-time private practice of law.

Fourth, Khadr claims that Judge Pollard has violated 28

U.S.C. § 454. That section states in its entirety: “Any justice

or judge appointed under the authority of the United States who

engages in the practice of law is guilty of a high

misdemeanor.”

The parties disagree about the applicability of that section

to the judges of the U.S. Court of Military Commission

Review. Khadr points to the text of the law and says that

Judge Pollard is a “judge appointed under the authority of the

United States” who is engaging “in the practice of law”

through his private law practice. Simple enough.

In response, the Government contends that the terms

“judge of the United States” and “court of the United States”

are defined for purposes of Title 28 – including Section 454 –

so as to exclude the U.S. Court of Military Commission

Review. See 28 U.S.C. § 451. The Government further

asserts that those narrow definitions apply to the phrase “judge

appointed under the authority of the United States” in Section

454 of the same title, and that Judge Pollard is therefore not

covered by Section 454. In response, Khadr argues that

Section 454’s phrase “judge appointed under the authority of

the United States” sweeps more broadly than the term “judge

of the United States,” and that Judge Pollard is a judge

appointed under the authority of the United States for purposes

of Section 454.

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Again, we need not resolve this dispute at this stage.

Neither this Court nor any other court of appeals has analyzed

whether Section 454 applies to judges on the U.S. Court of

Military Commission Review. And the Government raises a

substantial argument about why Section 454 does not apply to

judges on that Court. We cannot say that Section 454 affords

Khadr a “clear and indisputable” right to relief.

***

Mandamus is a “drastic and extraordinary remedy.”

Cheney v. U.S. District Court for the District of Columbia, 542

U.S. 367, 380 (2004) (internal quotation marks omitted).

Appellate courts grant mandamus only rarely, reserving the

writ for cases where petitioners show a “clear and

indisputable” right to relief. The regular course of appeal is

the primary vehicle for appellate review. See, e.g., Kerr v.

U.S. District Court for the Northern District of California, 426

U.S. 394, 403 (1976).

Applying the traditional “clear and indisputable” standard,

we deny Khadr’s petition for a writ of mandamus. If the U.S.

Court of Military Commission Review rules against Khadr in

his pending appeal, he may renew his arguments about Judge

Pollard on direct appeal to this Court. See 10 U.S.C. § 950g.

In other words, our denial of mandamus relief does not

preclude Khadr from advancing these same arguments in a

future appeal where the standard of review will not be so

daunting.

Although we deny the writ, we cannot deny that Khadr has

raised some significant questions. We encourage Congress

and the Executive Branch to promptly attend to those issues

and to make clear, one way or the other, whether the civilians

who serve as judges on the U.S. Court of Military Commission

14

Review may continue to engage in the part-time practice of law

and, if so, the circumstances under which they may do so.

We deny the petition.

So ordered.