Ex-Gitmo Prisoner Loses Bid to Block Judge

(CN) — A part-time judge who also litigates cases involving the federal government can serve on the appeals panel reviewing the case of a former Guantanamo Bay prisoner convicted of war crimes, the D.C. Circuit ruled.

Omar Khadr was captured in Afghanistan at age 15 and was imprisoned at Guantanamo Bay for 10 years.

He was charged with conspiring with al-Qaida and killing U.S. Army Sgt. 1st Class Christopher Speer with a grenade during a battle near Khost, Afghanistan in 2002.

In 2010, Khadr pleaded guilty in a military trial at the U.S. base in Cuba at age 24. His plea deal capped his sentence at 8 years, and sent him back to his native land, Canada, where he served three years of his sentence before being released on bail.

He is the first person since World War II to be prosecuted in a military commission for war crimes committed as a minor. His prosecution and imprisonment was condemned by the United Nations.

Khadr is currently in the process of challenging his conviction by U.S. military commission.

In a special petition to the D.C. Circuit, Khadr sought to disqualify Judge William Pollard from sitting on the panel of the U.S. Court of Military Commission Review overseeing his appeal.

Judge Pollard is a civilian who serves as a part-time judge on the court, and also runs a private law practice.

The D.C. Circuit declined Friday to eject Judge Pollard from the panel reviewing Khadr's case Friday.

"Although Khadr's arguments carry some force, he has not shown a 'clear and indisputable' right to relief at this time," U.S. Circuit Judge Brett Kavanaugh said, writing for the three-judge panel.

It is normally considered inappropriate for a judge to serve as a lawyer, or vice versa, particularly when some of Pollard's private caseload includes cases in which the U.S. government is a party.

However, Pollard's designation as a "special government employee" exempts him from otherwise applicable federal conflict of interest prohibitions.

The government asserts that this arrangement is permissible because military appellate courts are part of the executive branch, not the judicial branch.

Kavanaugh declined to make a finding on this argument, but noted, "This is a serious issue — one that Congress and the Department of Defense would be wise to address and 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."

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