‘Nail in the coffin’ for case against Khadr, lawyers say
Overturning of Guantanamo detainee’s conviction likely to help Canadian’s case
AU.S. court decision overturning the conviction of a Guantanamo Bay detainee is the “nail in the coffin” for the case against Canadian Omar Khadr, his attorneys said Friday.
“It confirms that Omar spent more than 12 years in prison without any legal justification,” Edmonton lawyer Nate Whitling said, confident the ruling concerning an alleged Al Qaeda recruiter would lead to Khadr’s case also being overturned.
The landmark decision Friday by the U.S. Court of Appeals for the District of Columbia Circuit determined that, according to the U.S. Constitution, all crimes must be tried in civilian criminal courts, with two excep- tions: violations of military law and war crimes, as defined by international law.
Ali Hamza al-Bahlul, the alleged terrorist recruiter, had been convicted of conspiracy after he refused to participate in his Guantanamo trial.
In overturning Bahlul’s conviction, the court concluded that conspiracy is not a war crime and therefore the Pentagon could not try him in Guantanamo’s military commissions, created in the wake of the Sept. 11, 2001, attacks. None of the five offences that Khadr pleaded guilty to in Guantanamo, including “murder in violation of the laws of war” in the death of U.S. Delta Force Sgt. Christopher Speer, are traditional war crimes, which means the legality of Khadr’s conviction is in doubt, as are the majority of past and future Guantanamo cases.
Khadr’s Pentagon lawyer, Sam Morison, who is challenging Khadr’s conviction in the U.S., called the decision a “nail in the coffin” for Khadr’s case. “There’s virtually nothing for the U.S. government to cling to,” he said from Washington.
Steve Vladeck, a professor at the American University Washington College of Law and co-editor in chief of the Just Security online legal forum, called the decision “really significant” in so far as it limits the majority of Guantanamo cases.
“The reality is most of the men at Guantanamo are not there because of a direct connection to war crimes,” Vladeck said.
“Most were picked up as part of a fight in Afghanistan and Pakistan. They may be bad guys, they may even be criminals, but not war criminals.”
The case against the alleged Sept. 11 attackers would be one of the exceptions since those killings are considered a traditional war crime.
But the Pentagon can still appeal to have the case heard by the U.S. Supreme Court.
Vladeck said the U.S. government has a good record in appealing terrorism cases at the high court, but that “there’s every reason to think military commissions are a bird of a different feather.”
Khadr, now 28 and free on bail, living with the family of his Edmonton lawyer, Dennis Edney, had agreed to a Pentagon plea deal in 2010 that gave him an eight-year sentence and a chance to be transferred to Canada. He told the Toronto Star and CBC, in interviews last month, that he was persuaded to plead guilty as his lawyers believed it was his only way out of Guantanamo.
Khadr also said he was unsure of whether he threw the grenade that killed Speer, as he does not know if his memories of the firefight in July 2002 are accurate, or the narrative he was told over months of interrogations when he had been tortured.
Khadr’s lawyers and critics of Guantanamo have long argued that whether he did or not was irrelevant, as only the death of civilians or protected persons in conflict can be considered war crimes.
They further argued that Khadr’s age — he was 15 when shot and captured following the firefight in Afghanistan — should have precluded his prosecution as a child soldier.
“The fact that Omar Khadr pleaded guilty doesn’t matter because the court didn’t have the jurisdiction to convict him of those offences in the first place,” Morison said.