Omar Khadr v. United States ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2022 Decided May 9, 2023
No. 21-1218
OMAR AHMED KHADR,
PETITIONER
v.
UNITED STATES,
RESPONDENT
On Petition for Review of an Order
of the U.S. Court of Military Commission Review
Samuel T. Morison, Attorney, Office of Military
Commissions, argued the cause for petitioner. With him on the
briefs was Alexandra Link, Attorney.
Danielle S. Tarin, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Matthew G. Olsen, Assistant Attorney General for National
Security, and Joseph F. Palmer, Attorney.
2
Before: HENDERSON and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Senior Circuit Judge
RANDOLPH.
Dissenting opinion filed by Circuit Judge WILKINS.
KAREN LECRAFT HENDERSON, Circuit Judge: Omar
Ahmed Khadr is a former Guantanamo Bay detainee. He asks
us to vacate his convictions for war crimes—including
providing material support to terrorism and murder of a United
States soldier in violation of the law of war—based on the
alleged constitutional and statutory infirmities of those
convictions. We dismiss the petition because Khadr waived his
right to appellate review by this Court.
I.
The Military Commissions Act (MCA) provides that a
military commission “may be convened by the Secretary of
Defense or by any officer or official of the United States
designated by the Secretary for that purpose.” 10 U.S.C.
§ 948h. The official, usually referred to as the “convening
authority,” details the commission’s members, refers charges
to the commission and reviews any conviction and sentence
imposed by the commission. Id. §§ 948i, 950b; R.M.C. 601. On
review of a final conviction and sentence, the convening
authority may dismiss any charge, convict the accused of a
lesser included offense or approve, disapprove, suspend or
commute the sentence the commission imposed. Id. § 950b(c).
The convening authority’s decision to approve, disapprove or
modify the commission’s findings or sentence is the convening
authority’s “action.” Id.
3
In every case in which the convening authority approves a
commission decision that includes a finding of guilty, “the
convening authority shall refer the case to the United States
Court of Military Commission Review [CMCR],” a military
appellate court. Id. § 950c(a); see also In re al-Nashiri, 791
F.3d 71, 74–75 (D.C. Cir. 2015). “[I]n each case that is
referred,” the CMCR “shall . . . review the record . . . with
respect to any matter properly raised by the accused,” 10
U.S.C. § 950f(c), and “affirm only such findings of guilty, and
the sentence or such part or amount of the sentence, as the
Court finds correct in law and fact,” id. § 950f(d).
We have exclusive jurisdiction to determine the validity of
any final judgment rendered by a military commission and,
where applicable, affirmed or set aside as incorrect in law by
the CMCR. Id. § 950g(a); see also id. § 950c(b) (permitting
accused to waive review in the CMCR).
II.
Khadr is a Canadian citizen and the son of Ahmad Khadr,
a former senior member of al Qaeda. In 2002, when Khadr was
15 years old, he joined an al Qaeda cell in Afghanistan that
constructed and planted improvised explosive devices
targeting U.S. forces. Khadr and his cell also clandestinely
observed the movements of U.S. military convoys and
conveyed the information to other al Qaeda operatives.
On July 27, 2002 U.S. forces raided the compound where
Khadr and other al Qaeda operatives were located. In the
ensuing firefight, Khadr threw a hand grenade and killed an
American soldier, Sergeant First Class Christopher Speer.
Another American solider then engaged Khadr and shot him
twice. Khadr was taken into U.S. military custody, given
medical treatment and transferred to the Naval Base at
Guantanamo Bay for detention.
4
In 2007, Khadr was charged under the MCA with murder
and attempted murder in violation of the law of war,
conspiracy, providing material support to terrorism and spying.
In October 2010, Khadr entered into a pretrial agreement
(PTA) with the convening authority. Khadr agreed, among
other things, to plead guilty to all five charges and to waive his
appeal rights. In the pertinent portion of the PTA, Khadr
“offer[ed] and agree[d]” to
[s]ign and execute the document found at
Attachment B, a two (2) page document that is
Military Commission Form 2330,
Waiver/Withdrawal of Appellate Rights, within
the specified timeframe found within
Attachment Band R.M.C. 1110. In doing so I
understand I will, at the time of execution of
Attachment B, waive my rights to appeal this
conviction, sentence, and/or detention to the
extent permitted by law, or to collaterally attack
my conviction, sentence, and/or detention in
any judicial forum (found in the United States
or otherwise) or proceeding, on any grounds,
except that I may bring a post-conviction claim
if any sentence is imposed in excess of the
statutory maximum sentence or in violation of
the sentencing limitation provisions contained
in this agreement. I have been informed by my
counsel orally and in writing of my post-trial
and appellate rights.
App. 59–60.
In exchange, the convening authority agreed not to
approve any sentence in excess of eight years’ confinement and
to support Khadr’s request for a transfer to Canadian custody.
5
On October 30, 2010 Khadr and his counsel executed
Form 2330. The executed form stated, in relevant part:
I understand that . . . [i]f I waive or withdraw
appellate review –
a. My case will not be reviewed by the Court
of Military Commission Review, or be
subject to further review by the Court of
Appeals for the District of Columbia
Circuit, or by the Supreme Court.
....
c. A waiver or withdrawal, once filed, cannot
be revoked, and bars further appellate
review.
Understanding the foregoing, I waive my rights
to appellate review. I make this decision freely
and voluntarily.
App. 71. Khadr’s counsel filed the executed form with the
commission and thus made it part of the “record of trial.” See
R.M.C. 808, 1103.
The following day, October 31, 2010, the military
commission sentenced Khadr to 40 years’ confinement. At the
sentencing hearing, the military judge reviewed with Khadr the
terms of his appeal waiver and confirmed in a colloquy that the
waiver was both knowing and voluntary.
In May 2011 the convening authority issued an action
approving “only so much of the sentence as provides for eight
years confinement.” App. 82. The approval action was served
on Khadr’s counsel that same day. Despite his agreement to do
6
so in the PTA, Khadr did not refile his appeal waiver after the
convening authority took action.
In September 2012, based in part on the convening
authority’s support, Khadr was transferred to Canada to serve
the remainder of his sentence. The Queen’s Bench of Alberta
ordered Khadr released on bail in 2015 and determined in 2019
that his sentence had expired. Khadr v. Bowden Inst. (2015),
590 A.R. 359 (Can. Alta. Q.B.); Khadr v. Warden of Bowden
Inst., 2015 ABQB 207 (Can. Alta. Q.B.). Khadr has been
released without conditions.
Although the convening authority approved the
commission’s finding of guilty, he did not refer Khadr’s case
to the CMCR for review pursuant to 10 U.S.C. § 950c. Instead,
Khadr tried to initiate review himself in 2013—two years after
the convening authority’s action—by filing a brief with the
CMCR challenging his convictions. Khadr argued, inter alia,
that the military commission lacked jurisdiction of the offenses
to which he pleaded guilty. The CMCR held the appeal in
abeyance pending our resolution of a series of related appeals.
See Al Bahlul v. United States (Al Bahlul I), 767 F.3d 1 (D.C.
Cir. 2014) (en banc); Al Bahlul v. United States (Al Bahlul II),
792 F.3d 1 (D.C. Cir. 2015), rev’d en banc sub nom. Bahlul v.
United States (Al Bahlul III), 840 F.3d 757 (D.C. Cir. 2016); Al
Bahlul v. United States (Al Bahlul IV), 967 F.3d 858 (D.C. Cir.
2020).
After Al Bahlul IV was decided, the CMCR lifted the
abeyance, denied all pending motions without prejudice and
ordered the parties to file supplemental briefs addressing the
court’s jurisdiction and the merits of Khadr’s appeal. On
October 21, 2021 the CMCR dismissed the appeal for lack of
subject-matter jurisdiction, concluding that “until a case is
referred to our court by the convening authority under section
7
950c . . . we lack jurisdiction to review it on the merits.” United
States v. Khadr, 568 F. Supp. 3d 1266, 1271 (C.M.C.R. 2021)
(cleaned up). The court remanded the case to the convening
authority with the following instructions:
Khadr, if he elects, may ask the convening
authority to refer his case to this court. The
government, if it elects, has the right to state its
position in response. We caution the parties that
they should attend to this matter diligently.
We do not presume to tell the convening
authority what he should do. We do say that
within forty-five (45) days of the date of this
opinion the convening authority should resolve
the referral matter. If it is not resolved by then,
and Khadr can show . . . that (i) he has acted
diligently on remand, including making a
proper request seeking a referral, and (ii) the
convening authority has refused his request, in
fact or constructively, then we will entertain a
petition for a writ of mandamus. In the event
Khadr seeks a writ, we express no view on
whether the mandamus requirements could or
might be satisfied.
Id. at 1277.
On remand, the convening authority declined to refer
Khadr’s case to the CMCR, concluding that Khadr’s appellate
waiver was binding notwithstanding it was made before the
convening authority took action.
Khadr petitioned this Court for review of the CMCR’s
dismissal for lack of subject-matter jurisdiction.
8
III.
A.
Khadr argues his convictions should be set aside for six
reasons. He first argues that the military commission lacked
jurisdiction of offenses that he committed as a juvenile.
Second, he claims the Ex Post Facto Clause bars his
convictions because the offenses of which he was convicted
were not crimes triable by military commission at the time of
his conduct in 2002. Third, he argues that, by authorizing the
military commission to convict him of “purely domestic
crimes” not cognizable under international law, the Congress
exceeded its constitutional authority under Article I’s Define
and Punish Clause and violated Article III’s Judicial Power
Clause. Fourth, he argues the “specifications” of murder,
attempted murder and conspiracy failed to state an offense
under the MCA because they did not allege that Khadr engaged
in conduct that could render his crimes “violations of the law
of war.” Fifth, he claims that the MCA discriminates against
aliens in violation of the equal protection component of the Due
Process Clause. And finally, he contends his guilty plea was
unknowing and involuntary and that it lacked a factual basis.
The Government argues that we lack subject-matter
jurisdiction of Khadr’s petition because Khadr did not satisfy
the MCA’s exhaustion requirement, 10 U.S.C. § 950g(b), and
because Khadr does not petition for review of a “final judgment
of a military commission” as “affirmed or set aside as incorrect
in law” by the CMCR, id. § 950g(a). We do not reach the
Government’s jurisdictional arguments, however, because
9
Khadr’s petition is fatally infirm on another threshold ground:
waiver.1
Steel Company v. Citizens for a Better Environment
established a rule of priority dictating the sequence in which a
federal court must decide the different issues that a case
presents. 523 U.S. 83, 93–102 (1998). But “Steel Co.’s rule of
priority does not invariably require considering a jurisdictional
question before any nonjurisdictional issue. Rather, courts may
address certain nonjurisdictional, threshold issues before
examining jurisdictional questions.” Kaplan v. Cent. Bank of
the Islamic Republic of Iran, 896 F.3d 501, 513 (D.C. Cir.
2018). A court therefore need not consider its subject-matter
jurisdiction if it can dispose of the case on another non-merits
ground. See Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway
‘to choose among threshold grounds for denying audience to a
case on the merits.’” (quoting Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 585 (1999))); see also Kowalski v. Tesmer,
543 U.S. 125, 129 (2004) (assuming Article III standing and
dismissing case on prudential standing ground); Steel Co., 523
U.S. at 100 n.3 (approving case resolving Younger abstention
question before addressing subject-matter jurisdiction).
1
The dissent faults us for addressing the validity of Khadr’s
appeal waiver without first giving the CMCR the chance to do so.
See Dissenting Op. at 1–2, 5 n.1. The question before us, however,
is whether Khadr waived his right to appellate review by this Court,
not whether he waived his right to review by the CMCR. Those are
distinct questions, especially given that the MCA imposes special
limitations on an accused’s ability to waive CMCR review. See, e.g.,
10 U.S.C. § 950c(b)(3) (accused must waive CMCR review within
10 days after convening authority’s action). Even if the CMCR were
to address the validity of Khadr’s appeal waiver, it would consider
only whether Khadr properly waived its review, not ours.
10
Whether a defendant waived his appellate rights is a non-
jurisdictional, non-merits threshold issue. United States v.
Hunt, 843 F.3d 1022, 1026 n.1 (D.C. Cir. 2016). A dismissal
based on an appeal waiver is a determination that the merits
may not be reached because the defendant knowingly and
voluntarily gave up his right to an appellate court’s
consideration of the merits of his case. Although resolving a
case on waiver “may . . . involve a brush with ‘factual and legal
issues of the underlying dispute,’” Sinochem, 549 U.S. at 433(quoting Van Cauwenberghe v. Baird, 486 U.S. 517, 529
(1988)), that brush does not transform the decision into a merits
determination because deciding the waiver issue “does not
entail any assumption by the court of substantive ‘law-
declaring power,’” id. (quoting Ruhrgas, 526 U.S. at 584–85).
We may therefore decide whether Khadr waived his right to
appeal without first considering whether we have subject-
matter jurisdiction. See id. at 431 (“[J]urisdiction is vital only
if the court proposes to issue a judgment on the merits.”
(quoting Intec USA, LLC v. Engle, 467 F.3d 1038, 1041 (7th
Cir. 2006))).
B.
We generally may enforce a knowing, intelligent and
voluntary waiver of the right to appeal. Hunt, 843 F.3d at 1027
(citing United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir.
2009)). Even an anticipatory waiver—a waiver made before
the defendant knows what his sentence will be—is enforceable
as long as the defendant “is aware of and understands the risks
involved in his decision.” Guillen, 561 F.3d at 529. But we will
not enforce an appeal waiver that “only arguably or
ambiguously forecloses [the defendant’s] claims.” Hunt, 843
F.3d at 1027. Because a plea agreement is in essence a contract,
we apply contract principles in interpreting a plea agreement.
11
Id. If the agreement unambiguously covers the accused’s
claims, we dismiss the appeal. Id.Here, Khadr agreed in the PTA to waive “my rights to
appeal this conviction, sentence, and/or detention to the extent
permitted by law, or to collaterally attack my conviction,
sentence, and/or detention in any judicial forum (found in the
United States or otherwise) or proceeding, on any grounds.”
App. 60. This broad waiver, which took effect “at the time of
execution of Attachment B [Form 2330],” excepts only “a post-
conviction claim if any sentence is imposed in excess of the
statutory maximum sentence or in violation of the sentencing
limitation provisions contained in this agreement.” App. 60.
Otherwise, the provision unambiguously waives any challenge
Khadr may have made to his convictions or sentence. Khadr
does not challenge the length of his sentence and all of the
claims he raises on appeal therefore fall within the scope of his
appeal waiver (except, of course, for any jurisdictional
challenge—more on that below).
Khadr gives a number of reasons that his unambiguous
appeal waiver should not be enforced. None is availing. He first
contends that his waiver is unenforceable because, in the
military justice system, an accused cannot waive the right to
appeal until after the convening authority takes action. Cf.
United States v. Miller, 62 M.J. 471, 472 (C.A.A.F. 2006).
Citing 10 U.S.C. § 950c(b)(3), he argues that the Congress
expressly included this limitation in the MCA and that his
appeal waiver is therefore unenforceable under the plain
language of the statute.
10 U.S.C. § 950c(b)(3) provides: “A waiver under
paragraph (1) must be filed, if at all, within 10 days after notice
of the action is served on the accused or on defense counsel.”
Khadr reads this provision as precluding an accused from filing
12
an anticipatory waiver of this Court’s review. By its own terms,
however, the provision applies only to an accused’s waiver of
CMCR review. See id. § 950c(b)(1) (“Except in a case in which
the sentence . . . extends to death, an accused may file with the
convening authority a statement expressly waiving the right of
the accused to appellate review by the United States Court of
Military Commission Review under section 950f of this
title.”). The MCA includes no similar statement respecting
waiver of our review. Indeed, the statute is utterly silent
regarding whether, and under what conditions, an accused may
waive appellate review by this Court. Given such silence, we
decline Khadr’s invitation to read a post-action limitation into
the Act.
Khadr next argues, citing Regulation for Trial by Military
Commission (R.T.M.C.) 24-2(b)(6), that an accused can never
waive our appellate review. But like 10 U.S.C. § 950c(b), the
Regulation discusses only waiver of appellate review by the
CMCR, not by this Court. Indeed, this is evident from the
Regulation’s title: “Automatic Review by the United States
Court of Military Commission Review.” Although the
Regulation states that “[t]his subsection does not apply to
appeals before the United States Court of Appeals for the
District of Columbia Circuit,” 24-2(b)(1)(6), that language
does not suggest an accused can waive review only by the
CMCR and not by this Court. Rather, it merely clarifies that
the procedures governing waiver of appellate review in the
CMCR do not apply to us.
Khadr also contends that his claims are non-waivable and,
thus, even if his waiver is enforceable, he may nevertheless
raise his arguments on appeal. His claims fall into three basic
categories: those challenging the constitutionality of the MCA;
those alleging that certain specifications fail to state an offense;
and those challenging the constitutional validity of his plea.
13
Khadr argues that his claims challenging the
constitutionality of the MCA are non-waivable under Class v.
United States, 138 S. Ct. 798 (2018). In Khadr’s view, Class
held that a facial constitutional challenge to a statute of
conviction can never be waived. But the holding of Class is not
so expansive. Rather, Class held only that a plea of guilty on
its own does not waive a defendant’s right to challenge the
constitutionality of the statute of conviction. See id. at 803
(framing the question presented as “whether a guilty plea by
itself bars a federal criminal defendant from challenging the
constitutionality of the statute of conviction on direct appeal.”
(emphasis added)). As we have explained:
Class’s holding was relatively narrow. The
Supreme Court held that a criminal defendant
who pleads guilty does not necessarily waive
challenges to the constitutionality of the statute
under which he is convicted. The Court did not,
however, hold that such claims are not waivable
at all: The Court addressed only whether a
guilty plea constitutes a waiver “by itself.”
Al Bahlul IV, 967 F.3d at 875 (citations omitted); see also
United States v. Ríos-Rivera, 913 F.3d 38, 42 (1st Cir. 2019)
(“In Class, the Supreme Court only decided that a guilty plea
alone does not waive claims that the government could not
constitutionally prosecute the defendant.” (cleaned up)); Oliver
v. United States, 951 F.3d 841, 846 (7th Cir. 2020) (“Class held
that a guilty plea, by itself, does not implicitly waive a
defendant’s right to challenge the constitutionality of his statute
of conviction.”).
Class does not preclude a defendant from expressly
waiving his right to challenge the statute of conviction on
appeal. This limitation is evident from the structure of the
14
opinion. The Court first considered whether Class’s arguments
fell within the scope of the express waivers in his plea
agreement. Class, 138 S. Ct. at 802. It then asked whether
Class’s guilty plea “implicitly” waived his claims, but only
after concluding that those arguments had not been expressly
waived in Class’s plea agreement. See id. at 803. Toward the
end of the opinion, the Court again emphasized that Class’s
agreement had not waived his constitutional claims. Id. at 805–
07. That the Court first noted that Class’s arguments were not
encompassed by his express waivers, and again referred to that
fact at the conclusion of its opinion, strongly suggests that,
although Class’s plea agreement did not waive his claims, it
could have. See Al Bahlul IV, 967 F.3d at 875 (“The Court
twice emphasized that Class had not waived his objections
through conduct other than his guilty plea, thus making clear
that the Court was addressing only the effect of pleading
guilty.” (citation omitted)); Oliver, 951 F.3d at 846 (“[T]he
Court’s reasoning assumed that Class’s plea agreement could
have expressly waived such an argument but had not actually
done so.”).
In this case, Khadr expressly waived the right to appeal his
convictions, sentence and detention. Nothing in Class, or other
binding precedent of which we are aware, suggests that his
non-jurisdictional claims, even if based on the Constitution,
survive his express waiver.
Nor are we convinced the rule Khadr advocates would
benefit the accused. As we explained in Guillen, “[a]llowing a
defendant to waive the right to appeal his sentence . . . gives
him an additional bargaining chip to use in negotiating a plea
agreement with the Government.” 561 F.3d at 530. If an appeal
waiver were not enforced in the “mine run of cases,” the
government would cease to rely on it and the waiver would lose
15
its value as a bargaining chip for the defendant. See United
States v. Adams, 780 F.3d 1182, 1184 (D.C. Cir. 2015).
We note that the waiver was an especially effective
bargaining chip in this case. In exchange for agreeing to waive
his appellate rights, Khadr’s sentence was remitted by the
convening authority from 40 years’ imprisonment to only 8
years’ imprisonment. In addition, Khadr was transferred—on
the convening authority’s recommendation—to Canadian
custody, where he was released on bail after serving only a
portion of his sentence. There is thus good reason to believe
that, had Khadr been unable to bargain with his appellate rights,
he would remain in custody today.
Khadr also argues that his constitutional challenges and his
challenges regarding the sufficiency of the specifications are
non-waivable under Rules 905 and 907 of the Rules for
Military Commissions.2 This argument is easily dismissed as
we considered and rejected the same argument in Al Bahlul I,
2
R.M.C. 905(e) provides:
Failure by a party to raise defenses or
objections or to make motions or requests which
must be made before pleas are entered under section
(b) of this rule shall constitute waiver. The military
judge for good cause shown may grant relief from
the waiver. Other motions, requests, defenses, or
objections, except lack of jurisdiction or failure of a
charge to allege an offense, must be raised before
the commission is adjourned for that case and,
unless otherwise provided in this Manual, failure to
do so shall constitute waiver.
Similarly, R.M.C. 907(b)(1), titled “Nonwaivable Grounds,”
provides that “[a] charge or specification shall be dismissed at any
stage of the proceedings if: (A) The military commission lacks
jurisdiction to try the accused for the offense; or (B) The
specification fails to state an offense.”
16
767 F.3d at 10 n.6. There, Al Bahlul argued that his convictions
should be set aside because they violated the Ex Post Facto
Clause. Id. at 8. Al Bahlul did not raise that claim before the
military commission but on en banc review three of our
colleagues suggested it was non-forfeitable under Rules 905
and 907 either because the claim was jurisdictional or because
it amounted to an argument that the indictment failed to allege
an offense. See id. at 48 (Rogers, J., concurring in judgment in
part and dissenting); id. at 51 (Brown, J., concurring in
judgment in part and dissenting in part); id. at 78–79
(Kavanaugh, J., concurring in judgment in part and dissenting
in part). The en banc majority disagreed. It explained that the
claim was not jurisdictional because “the question whether th[e
MCA] is unconstitutional does not involve ‘the courts’
statutory or constitutional power to adjudicate the case.’” Id. at
10 n.6 (quoting United States v. Cotton, 535 U.S. 625, 630
(2002)).
The en banc court also rejected the suggestion that Al
Bahlul’s ex post facto claim was non-forfeitable because it
alleged that the indictment failed to state an offense. “Failure
to state an offense,” the court explained, “is simply another way
of saying there is a defect in the indictment—as evidenced by
Rule 907’s cross-reference to Rule 307(c), which sets forth the
criteria for charges and specifications.” Id. Supreme Court
precedent is clear that “such a claim can be forfeited.” Id.; see
Cotton, 535 U.S. at 630 (“[D]efects in an indictment do not
deprive a court of its power to adjudicate a case.”); Lamar v.
United States, 240 U.S. 60, 65 (1916) (“The objection that the
indictment does not charge a crime against the United States
goes only to the merits of the case.”); United States v.
Delgado–Garcia, 374 F.3d 1337, 1342–43 (D.C. Cir. 2004)
(“[T]he substantive sufficiency of the indictment is a question
that goes to the merits of the case.”).
17
Our en banc Al Bahlul I decision controls. Khadr argues
his constitutional claims are non-waivable because they are
“jurisdictional.” But his claims are no more jurisdictional than
was Al Bahlul’s ex post facto claim. Like Al Bahlul’s ex post
facto claim, Khadr’s claims challenge only the constitutionality
of the MCA, not the courts’—or commission’s—power to
adjudicate his case.3 Challenges to the constitutionality of a
statute are not themselves jurisdictional.4 See United States v.
3
Notably, although the Judicial Power Clause appears in
Article III of the Constitution, the clause does not limit the power of
the courts, but of the Congress. See U.S. CONST. art. III § 1. In
particular, the clause curbs the Congress’s power to transfer
adjudicatory authority from Article III to non-Article III tribunals.
See CFTC v. Schor, 478 U.S. 833, 850 (1986) (The clause “bar[s]
congressional attempts to transfer jurisdiction to non-Article III
tribunals.” (cleaned up)). Khadr’s Judicial Power Clause argument
therefore does not implicate our subject-matter jurisdiction.
4
Only one of Khadr’s arguments is conceivably jurisdictional
in the true sense. Khadr contends that the military commission lacked
jurisdiction to convict him because of the Juvenile Delinquency Act
(JDA), 18 U.S.C. §§ 5031 et seq. But the JDA, by its own terms,
forbids criminal proceedings against juveniles only in a “court of the
United States.” 18 U.S.C. § 5032. Although the JDA does not define
“court of the United States,” definitions elsewhere in the U.S. Code
cast serious doubt on whether a military commission qualifies as a
court. See, e.g., 28 U.S.C. § 451 (“The term ‘court of the United
States’ includes the Supreme Court of the United States, courts of
appeals, district courts . . . and any court created by Act of Congress
the judges of which are entitled to hold office during good
behavior.”). Military courts have also held that the JDA does not
apply to military tribunals. See, e.g., United States v. Thieman, 33
C.M.R. 560, 561–62 (1963) (“Since it appears Congress enacted the
Federal Juvenile Delinquency Act solely under its Article III powers
and made no mention of persons in the military, we see no
justification for extending the application of the Act to the military
judicial system absent additional legislation.”). Likewise, Supreme
Court precedent and notable military treatises cast doubt on Khadr’s
18
Williams, 341 U.S. 58, 66 (1951) (“Even the
unconstitutionality of the statute under which the proceeding is
brought does not oust a court of jurisdiction.”). Indeed, if a
constitutional challenge to a statute of conviction were
jurisdictional, a federal court would be required to address, sua
sponte, the constitutional validity of every statute of conviction
in every criminal case it considered. See United States v.
Baucum, 80 F.3d 539, 541 (D.C. Cir. 1996). That practice
would not only consume judicial resources but also run afoul
of a long line of Supreme Court decisions declining to consider
constitutional claims not raised by the parties. Id.; see also
Mazer v. Stein, 347 U.S. 201, 206 n.5 (1954) (“We do not reach
for constitutional questions not raised by the parties.”); Al
Bahlul III, 840 F.3d at 780 (Millett, J., concurring) (“To hold
otherwise would mean that ‘a court would be required to raise
[a Judicial Power Clause challenge] sua sponte each time it
reviews a decision of a non-Article III tribunal,’ even if the
parties do not contest that issue.” (quoting Al Bahlul II, 792
F.3d at 32 (Henderson, J., dissenting))).
Likewise, Khadr’s argument that his claims challenging
the sufficiency of his specifications are non-waivable is
materially identical to the argument the en banc court deemed
argument. See Ex Parte Vallandigham, 68 U.S. (1 Wall.) 243, 253
(1864) (although a military commission has “discretion to examine,
to decide and sentence,” it is not “judicial . . . in the sense in which
judicial power is granted to the courts of the United States”); Ex
Parte Quirin, 317 U.S. 1, 39 (1942) (“[M]ilitary tribunals . . . are not
courts in the sense of the Judiciary Article.”); Ortiz v. United States,
138 S. Ct. 2165, 2179–80 (2018) (“[T]he commission [at issue in
Vallandigham] lacked ‘judicial character.’ It was more an adjunct to
a general than a real court.”); W. WINTHROP, MILITARY LAW AND
PRECEDENTS 49 (2d Ed. 1920) (“None of the statutes governing the
jurisdiction or procedure of the ‘courts of the United States’ have any
application to [a court-martial].”).
19
forfeited in Al Bahlul I. Khadr neither points to any facts nor
identifies an intervening change in the law that would support
distinguishing our decision in Al Bahlul I.5 Cf. Al Bahlul IV,
967 F.3d at 876 (declining to reconsider Al Bahlul I based on
argument that defect in charging document deprives military
court of jurisdiction).
Nevertheless, Khadr’s challenge to the validity of his
guilty plea is reviewable notwithstanding his appeal waiver.
See Garza v. Idaho, 139 S. Ct. 738, 745 (2019) (“[C]ourts agree
that defendants retain the right to challenge whether the waiver
itself is valid and enforceable.”); Guillen, 561 F.3d at 529 (“A
defendant may waive his right to appeal his sentence as long as
his decision is knowing, intelligent, and voluntary.”). “An
appeal waiver is knowing, intelligent, and voluntary if the
defendant ‘is aware of and understands the risks involved’ in
waiving the right to appeal.” United States v. Lee, 888 F.3d
503, 506 (D.C. Cir. 2018) (quoting Guillen, 561 F.3d at 529).
Granted, “[a] written plea agreement in which the defendant
5
Khadr contends Al Bahlul I is inapposite because that case
involved forfeiture whereas this case involves waiver. Granted, our
Al Bahlul I decision relied in part on the distinction between waiver
and forfeiture in rejecting the argument that Rules 905 and 907
rendered Al Bahlul’s ex post facto claim non-forfeitable but the
decision also rejected the argument for reasons unrelated to the
distinction between waiver and forfeiture. See Al Bahlul I, 767 F.3d
at 10 n.6 (“Nor is Bahlul’s ex post facto argument
‘jurisdictional.’ . . . The question whether [the MCA] is
unconstitutional does not involve ‘the courts’ statutory or
constitutional power to adjudicate the case.’” (quoting Cotton, 535
U.S. at 630)); id. (“Failure to state an offense is simply another way
of saying there is a defect in the indictment . . . . As Cotton makes
clear, such a claim can be forfeited.”); id. (citing Delgado-Garcia,
374 F.3d at 1342–43, a case involving waiver, for the proposition
that “[t]he question of an indictment’s failure to state an offense is
an issue that goes to the merits of a case”).
20
waives the right to appeal” serves as “strong evidence that the
defendant knowingly, intelligently, and voluntarily waived
the right to appeal,” we still examine the entire record to
determine whether the plea was knowing, intelligent and
voluntary. Id. at 507.
Here, the record shows that Khadr’s plea was made
knowingly, intelligently and voluntarily. The waiver language
of the PTA and the Form 2330 is clear, both documents are
signed by Khadr and his counsel and the military judge
confirmed in a colloquy at Khadr’s sentencing that he waived
his appeal rights knowingly and voluntarily. See id. (listing
factors).
Khadr argues his plea is invalid because the military judge
misinformed him about the nature and constitutionality of the
charges against him. In essence, Khadr claims that his plea
should be set aside because the judge ruled against him on the
merits of his legal claims. This argument is too clever by half.
A defendant cannot challenge a plea based on an alleged error
of law that was raised, rejected and then waived pursuant to the
plea. Khadr, aware that the military judge had rejected his
theories, nonetheless chose to plead guilty and expressly waive
his right to appeal those erroneous (in his view) rulings. He
cannot now have the merits of his waived claims reviewed on
appeal by arguing his waiver was invalid because those claims
were wrongly decided. Indeed, the basic principle behind an
appeal waiver is that the defendant gives up his right to have an
appellate court review the merits of his arguments in exchange
for valuable consideration. See Guillen, 561 F.3d at 530(“Allowing the defendant to waive this right . . . improves the
defendant’s bargaining position and increases the probability
he will reach a satisfactory plea agreement with the
Government.”).
21
For the foregoing reasons, we conclude that Khadr
unambiguously waived his right to challenge his conviction on
appeal and did so knowingly, intelligently and voluntarily. We
therefore dismiss the petition.
So ordered.
RANDOLPH, Senior Circuit Judge, concurring: I agree with
Judge Henderson’s opinion, but I write in the hope of clarifying
once and for all exactly what the Supreme Court held in Steel
Co. and what it did not. Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83 (1998). See Maj. Op. 9–10.
The issue in Steel Co., as the opinion’s author – Justice
Scalia – described it, was this: must Article III jurisdiction (e.g.,
standing) always be confirmed before a federal court may move
on to decide the merits of a controversy? The Court answered
yes even though a federal court may decide a controversy before
determining whether statutory jurisdiction exists.1
Steel Co. thus held in the clearest possible terms that a
“merits question cannot be given priority over an Article III
question,” and so rejected Justice Stevens’ contrary opinion (see
note 1 supra). 523 U.S. at 97 n.2.
A few years after Steel Co., the author of that opinion,
Justice Scalia, again writing for the Court majority, wrote that it
was unnecessary to decide a statutory jurisdictional question
because it was so clear that the plaintiffs would lose on the
merits. See Verizon Commc’ns Inc. v. L. Offs. of Curtis V.
Trinko, LLP, 540 U.S. 398, 416 n.5 (2004). In support, Justice
Scalia cited, in addition to his opinion in Steel Co., the Court’s
opinion in Nat’l R. R. Passenger Corp. v. Nat’l Ass’n of R. R.
Passengers, 414 U.S. 453, 456 (1974). The Court there held that
“it is only if . . . a right of action exists that we need consider
whether the respondent had standing to bring the action and
whether the District Court had jurisdiction to entertain it.” Id.1
“Justice Stevens’ opinion concurring in the judgment,
however, claims that the question whether [the statute] permits this
cause of action is also ‘jurisdictional,’ and so has equivalent claim to
being resolved first.” Steel Co., 523 U.S. at 88–89.
2
Our own decisions have followed suit: we have often bypassed
statutory jurisdiction to decide merits issues.2
It is fair to ask what any of this has to do with this case. My
answer is very little, which is why Judge Henderson’s opinion
does not dwell on it. That is, we are not asked here to decide the
merits before deciding “jurisdiction,” whether Article III
jurisdiction, as in Steel Co. or statutory jurisdiction, as in
National Rail.
As to what remains of the case, I am with Judge Henderson.
2
See, e.g., Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1246
(D.C. Cir. 2020); Sherrod v. Breitbart, 720 F.3d 932, 936 (D.C. Cir.
2013); Lin v. United States, 690 F. App’x 7, 9 (D.C. Cir. 2017);
Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 728 (D.C.
Cir. 2008); Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007);
Thomas v. Network Sols., Inc., 176 F.3d 500, 509–10 (D.C. Cir.
1999); U.S. ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890,
896 (D.C. Cir. 1999).
WILKINS, Circuit Judge, dissenting: There is but one
issue directly before this Court: jurisdiction. With no final
order to review on appeal, I believe the answer to whether we
have jurisdiction must be no. In order to sidestep jurisdiction
and dismiss the appeal on other grounds, the majority upholds
Mr. Khadr’s appeal waiver. It does so, however, without the
complete record of the proceedings below, contrary to our
precedent, and also without the benefit of a finding of the
validity of the appeal waiver by the United States Court of
Military Commission Review (“CMCR”) or the trial judge in
the first instance. Because we are not permitted to make
findings about the scope or validity of an appeal waiver without
the complete record, and because “we are a court of review, not
of first view,” Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933
F.3d 784, 789 (D.C. Cir. 2019) (quoting Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005)), I respectfully dissent.
I.
As outlined by the majority, the Military Commissions
Act (“MCA”) provides that the convening authority “shall refer
the case to the [CMCR]” whenever it approves a military
commission decision “includ[ing] a finding of guilty[.]”
10 U.S.C. § 950c(a). The only listed exception to such automatic
referral concerns waiver. And should a defendant waive the right
to appeal, such waiver “must be filed, if at all, within 10 days
after notice of the action is served on the accused or on defense
counsel.” Id. § 950c(b)(3). Although the MCA grants this
Court exclusive jurisdiction, it does so on a limited basis. As
such, our jurisdiction is triggered when asked to review final
judgments rendered by “the military commission as approved
by the convening authority and, where applicable, as affirmed
or set aside as incorrect in law by the [CMCR].” Id. § 950g(a).
This limited record speaks for itself. In October 2010, Mr.
Khadr entered into a pretrial agreement with the convening
authority. Later that month, Mr. Khadr signed Military
2
Commission Form 2330, Waiver/Withdrawal of Appellate
Rights (“Form 2330”). Although the military commission
made a guilty finding, the convening authority failed to refer
Mr. Khadr’s case under § 950c, and Mr. Khadr never filed his
appeal waiver under § 950c(b)(3). As relevant here, the CMCR
dismissed Mr. Khadr’s appeal on October 21, 2021, for lack of
jurisdiction, finding it is authorized by statute only to “review
cases that have been ‘referred to the Court by the convening
authority.’ 10 U.S.C. § 950f(c).” United States v. Khadr, 568
F. Supp. 3d 1266, 1275 (C.M.C.R. 2021).
For our purposes, it is important to note that the CMCR
expressly declined to resolve any issues regarding the scope or
validity of Mr. Khadr’s appeal waiver. Khadr, 568 F. Supp. 3d
at 1274 n.11. Instead, the CMCR counseled Mr. Khadr to ask
the convening authority to refer his case within 45 days, and
should that fail, the CMCR would “entertain a petition for a
writ of mandamus.” Id. at 1277. It also found that should the
convening authority refer the case, “the briefing of the merits
appeal will be deemed completed.” Id. Rather than
immediately following these instructions, Mr. Khadr petitioned
this Court on November 8, 2021, for review of the CMCR’s
decision dismissing for lack of jurisdiction.
The CMCR’s decision, dismissing Mr. Khadr’s case for
lack of jurisdiction and remanding with instructions can hardly
be characterized as “affirm[ing] or set[ting] aside as incorrect
in law” a decision which is required to grant us jurisdiction
under § 950g(a). For that reason, the government urges us to
dismiss this appeal for lack of jurisdiction, because the CMCR
remand order before us is not a “final order,” as we have
squarely held. See Khadr v. United States, 529 F.3d 1112,
1115–16 (D.C. Cir. 2008) (dismissing appeal for lack of
jurisdiction after holding that CMCR remand order was not a
final order).
3
II.
The majority rejects this straightforward approach.
Instead, the majority reasons that unlike subject matter
jurisdiction, we need not satisfy ourselves that we have
statutory jurisdiction as a threshold matter in every instance, so
we can dismiss the appeal on a non-merits ground, like waiver.
Maj. Op. 8–10. While the majority’s approach is correct in
theory, see United States v. Shemirani, 802 F.3d 1, 3 & n.1
(D.C. Cir. 2015), it is not appropriate to decide whether Mr.
Khadr waived his right to appeal in this instance.
Mr. Khadr’s guilty plea was taken in open court on
October 25, 2010. Oral Arg. Tr. 20. However, the appeal
waiver was not executed until five days later, on October 30,
2010. Id. at 20–21; App. 71. The transcript of October 25 is
in the record before us, but not the transcript from any
proceedings on October 30. The trial judge said on October 25
that he would review the appeal waiver with the defendant
later, but we do not have transcripts to determine whether that
ever occurred, and if so, what was said by the judge, counsel,
or Mr. Khadr. Granted, the military commission made a
cursory statement to Mr. Khadr on October 25, asking him if
he understood that he was waiving his right to appeal. App.
304–05. But we do not know if there were subsequent
statements made on October 30 that could impact the
voluntariness of the appeal waiver or the scope of the waiver.
See, e.g., United States v. Kaufman, 791 F.3d 86, 88 (D.C. Cir.
2015) (holding that “the district court made two problematic
statements in explaining the waiver provision in the plea
agreement” that “transformed the nature” of the written appeal
waiver); United States v. Godoy, 706 F.3d 493, 495 (D.C. Cir.
2013) (where district court mischaracterized scope of appeal
waiver provision during colloquy with the defendant, the oral
4
pronouncement controlled over the terms of the appeal waiver
in the written plea agreement).
Furthermore, while the trial judge made a finding on
October 25 that Mr. Khadr knowingly and involuntarily waived
his right to trial, there is no concomitant finding that he
knowingly and voluntarily waived his right to an appeal. App.
311–12. Thus, we do not even have before us a
contemporaneous finding in the trial court that the appeal
waiver was knowing and voluntary. Without the oral colloquy
and the trial court’s finding, we cannot adequately review
whether the appeal waiver was knowing and involuntary and
whether its scope encompasses the claims being asserted by
Mr. Khadr. As we have previously explained,
a written plea agreement on its own does not end
the inquiry. Rather, the court of appeals must
examine, among other things, the clarity of the
written plea agreement, the defendant's
signature on the agreement, defense counsel's
signature on the agreement, the defendant's
statements at the plea hearing, defense counsel's
statements at the plea hearing, and the judge's
questioning and statements at the plea hearing.
United States v. Lee, 888 F.3d 503, 507 (D.C. Cir. 2018)
(Kavanaugh, J.) (emphasis in original).
In sum, we should not make a determination about the
scope and validity of the appeal waiver in the first instance, and
even if it were appropriate to do so, our precedent does not
permit us to do so unless we have the complete record. 1 The
1
After the CMCR dismissed the appeal and remanded the case, the
Convening Authority made a finding in 2021 that the appeal waiver
5
majority has jumped the gun and prematurely dismissed the
appeal by reaching the non-merits issue of waiver on an
incomplete record and as if we are a court of first view, rather
than a court of review. I therefore dissent.
was knowing and voluntary. App. 132. That finding was made after
the order we have before us on review, so it is not properly before
us. It also relies on the larger record, see id., which, again, is not
before us. The Convening Authority’s finding should be reviewed
by the CMCR in the first instance, before we speak on the issue.