United States of America v. Omar Ahmed Khadr (2007)/Motion for Emergency Relief

by William Kuebler

TO THE HONORABLE, THE JUDGES OF THE COURT OF MILITARY COMMISSION REVIEW

Relief Sought

COMES NOW Mr. Omar Khadr and respectfully requests that this Court grant a continuance until 3 August 2007 for the Defense to file its brief in response to the Government's appeal in Mr. Khadr's case. Due to the exigency articulated below, counsel requests that this Court rule on this motion by 1100 tomorrow, 12 July 2007.

Standard for Granting Relief

Rule 21(a) of the Rules of Practice of the Court of Military Commission Review provides that this Court "may extend any time limits prescribed . . . in such a manner as may appear to be required for a full, fair, and expeditious consideration of the case."

Facts

^[1]On 4 July 2007, the Government filed a brief appealing Judge Brownback's dismissal of Mr. Khadr's case. At that time, the Defense had not yet received a copy of this Court's rules^[2] and, in fact, was not even aware that the Court existed. Shortly after Judge Brownback's ruling, on 6 June 2007, Mr. Lee Foreman (the current Clerk of the Court) circulated a draft copy of the Court's rules, presumably so that the parties could familiarize themselves with the rules and plan accordingly. Foreman email of 6 Jun 07 (attachment B). The draft rules (like the current rules) provided that the Defense would have thirty days to file a brief in response to a government appeal. Today, seven days after the Court received the Government's brief, the Court ordered the Defense to file any responsive pleading within seven days.

The detailed appellate defense counsel and Mr. Dennis Edney, a Foreign Attorney Consultant for Mr. Khadr, are scheduled to fly to Guantanamo Bay tomorrow at 1200 to meet with Mr. Khadr. See Order No. DFTD70728 for Kuebler (attachment C). In fact, Mr. Edney is currently traveling from Toronto, Canada to Washington, DC for the flight to Guantanamo Bay. Mr. Edney is currently in trial and it is extremely difficult for him to arrange his schedule for travel to Guantanamo Bay.

On 13 June 2007, the Defense requested to meet with Mr. Khadr on 27-28 June. Kuebler email of 13 Jun 07 (attachment D at 2). Joint Task Force Guantanamo Bay (JTFGTMO) denied that request on 14 June 2007.   email of 14 Jun 07 (attachment D at 1 .) On 28 June 2007, the defense requested to meet with Mr. Khadr on 13 July 2007. Jackson email of 28 Jun 07 (attachment E). JTFGTMO granted that request on the same day.   email of 28 Jun 07 (attachment F at 1).

In view of JTFGTMO's denial of the 27-28 June visit request, and on the assumption that the Defense would have at least 30 days from the filing of the Government's brief to respond, detailed defense counsel traveled to Canada on two occasions to meet with Mr. Khadr's Canadian attorneys, Mr. Khadr's family, and legal experts in Toronto and Halifax. The second trip was from 6 through 8 July after the government filed its brief. See Order No. DFTD70704 for Kuebler (attachment G).

Argument

Having no direction from the Court and no Rules of Practice until two days ago, the Defense proceeded on the best information it had - the draft rules providing for thirty days to respond to the Government's brief. Detrimentally relying on this information, part of the Defense team is already in route to Guantanamo Bay from Toronto, Canada to meet with Mr. Khadr this Friday. Given that the order to file any responsive brief within seven days has come on the eve of this trip, the Defense cannot both meet this Court's deadline and travel to Guantanamo to meet with Mr. Khadr. Cancelling the trip would postpone the next meeting with the client for more than a month. Since the runway at Guantanamo Bay was originally scheduled to be closed 18-30 July, resulting in the cancellation of many flights during that period, the runway is currently scheduled to be closed during the first half of August, and priority on the limited number of flights going to Guantanamo before that closure are given to those executing PCS orders on or off of Guantanamo. Requiring such a lengthy delay between attorney-client visits will substantially harm already delicate attorney-client relations.

Even without the difficulties created by the cancelled runway closure, travel to and from Guantanamo Bay is difficult and time consuming. It takes a minimum of one day to travel to Guantanamo Bay and one day to return. The Defense is currently scheduled to return on 14 July, but flights to and fiom Guantanarno Bay are frequently cancelled or rescheduled. Further, just scheduling the trip is difficult. In addition to coordinating dates with Mr. Edney's availability, arranging a trip to Guantanamo Bay requires government transportation to be available as well as JTFGTMO approval to meet with the client. There are a limited number of flights a week to GTMO and counsel are permitted to fly only on a strictly space available basis. Other flights can be requested if there is a sufficient number of passengers, but they are subject to aircraft and pilot availability. Also, requests to meet with Mr. Khadr must be made ten days in advance of the meeting and have been denied. In short, if counsel is unable to meet with Mr. Khadr on Friday, it will likely be at least a month before counsel will be able to do so.

And more importantly, counsel will not be able to confer with Mr. Khadr prior to filing a brief on his behalf if this Court's deadline remains fixed. This is because counsel are permitted to speak with detainees only in person. To date, Mr. Khadr is not even aware that the government has appealed the dismissal of his case. If this Court grants the requested continuance, it will allow counsel to confer with Mr. Khadr regarding the appeal while requiring the brief to be filed within the original thirty-day period for the Defense to respond provided for by Rules 14(c) and 22(a) of this Court's Rules of Practice.

Finally, even without meeting with Mr. Khadr this week, writing a quality brief on the intricate legal issue before this Court would be virtually impossible. The defense did not litigate this issue below. Rather, the military judge made his ruling sua sponte. So the defense has no preexisting expertise in this area. The undersigned counsel has had to attempt to learn this difficult area of the law, which implicates treaty law and customary international law, in addition to statutory and constitutional law. Keeping the briefing deadline at the 30-day default established by Rules 22(a) and 14 would facilitate this Court's thorough and informed analysis of the issues before it.

Accordingly, the requested continuance is required for a full, fair, and expeditious consideration of Mr. Khadr's case and this Court should grant Mr. Khadr's motion for emergency relief.

Original footnotes

1. In this motion, the undersigned counsel makes several averments about his activities and schedule. If desired by either the prosecution or the Court, the undersigned will provide a supporting affidavit.
2. Judge Rolph attempted to distribute a copy of this Court's rules to the defense on 28 June 2007. However, due to a typographical error in the e-mail's "To" block, this email was not actually received in the Office of Military Commissions defense office until 9 July 2007, when Mr. Lee Foreman forwarded it to the Chief Defense Counsel. Foreman email of 9 Ju107 (attachment A). The defense does not allege any bad faith as a result of what was obviously an innocent mistake. The defense simply notes this fact to make the Court aware that it did not know of this Court's rules until two days ago.