Omar Khadr’s plea-bargained guilty plea and conviction on murder, terrorism and spying charges will be appealed to a U.S. civilian federal court that has tossed out similar Guantanamo military tribunal convictions for two high-profile al-Qaeda defendants.
If the appeal succeeds, Mr. Khadr could be freed immediately.
Mr. Khadr, now 26, is imprisoned in a special security unit dubbed Guantanamo North at Millhaven Penitentiary near Kingston after being repatriated last September from the U.S. naval base in Guantanamo, Cuba.
“Omar has given his approval to file an appeal,” Dennis Edney, his Canadian lawyer confirmed. A U.S. appellate legal team has been named.
His lawyers expect the U.S. Court of Appeals for the District of Columbia Circuit to overturn Mr. Khadr’s conviction – just as it did in the cases of two of Osama bin Laden’s close personal aides, Ali Hamza Bahlul and Salim Hamdan, both also convicted at Guantanamo.
That would create consternation in Ottawa, where ministers have called Mr. Khadr a terrorist and successive Liberal and Conservative governments refused to extricate him from Guantanamo despite his Canadian citizenship and his hotly debated status as a child soldier under international law. He pleaded guilty in 2010 to multiple crimes committed in Afghanistan in 2002. As part of that plea, he confessed to throwing a grenade that killed U.S. Sergeant Christopher Speer.
The Pentagon’s Office of the Chief Defense Counsel has named an appellate team of attorneys for Mr. Khadr led by a civilian Sam Morison. Now armed with a formal go-ahead from Mr. Khadr, the team is expected to file the appeal soon.
They’re confident the military tribunal convictions will be overturned. “In our view there are serious questions about the validity of all these convictions,” Mr. Morison said, adding: “As the law now stands, I don’t see how his convictions can be affirmed.”
In rulings on Mr. Hamdan last October and again in January on Mr. al-Bahlul, the civilian appeals court overturned the terrorism convictions against the two. It concluded the military war crimes tribunal created by the George W. Bush administration after the 2001 terrorist attack that levelled New York’s twin towers and left the Pentagon ablaze had tried and convicted detainees on crimes that didn’t exist when the defendants were captured. President Barack Obama has opted to retain the military commissions and keep Guantanamo running, despite his pre-2008 election vow to close the infamous prison complex.
Mr. Khadr’s case is additionally complicated because, unlike Mr. Hamdan or Mr. al-Bahlul, he pleaded guilty at his week-long trial in October, 2010, that included a remorseful statement to Sgt. Speer’s widow. As part of that deal, Mr. Khadr waived his right to appeal.
Mr. Khadr admitted to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy and providing material support for terrorism and spying.
But if the underlying acts weren’t crimes – at least not war crimes – then the waiver may also be unreliable and the appeal could still be accepted by the U.S. federal court.
"Not only weren't they war crimes at the time of their commission but, I would argue," Mr. Morison said, "that none of them are crimes today, not in international law."
The exception is spying, which was so broadly redefined in the Military Commissions Act, it bears little resemblance to espionage as defined in international law.
It could be months before the appeal is formally launched, let alone heard.
In the meantime, Mr. Khadr, who has been held prisoner since 2002, will be eligible under Canadian law for a parole hearing in July this year, when he will have served one-third of the eight-year sentence he agreed to at his 2010 trial.
Mr. Khadr, near death, was dug out of the rubble of an Afghan compound bombed by U.S. warplanes in June, 2002, where the then-15-year-old son of a major al-Qaeda figure was living with a group of militants building and planting roadside bombs.
Even if Mr. Khadr threw the grenade that killed Sgt. Speer, killing a combatant on a battlefield isn’t a war crime except in narrowly defined cases. Those include shooting a defenseless descending parachutist, a wounded soldier or one indicating surrender.