Omar Khadr, the Canadian convicted at a Guantanamo Bay war crimes tribunal of murder, terrorism and spying, is innocent despite his guilty plea and should be cleared and set free, says Sam Morison, the lawyer launching an landmark appeal.
In a case that could redefine the extent to which the controversial U.S. military tribunals can decide what is a war crime, Mr. Khadr's legal team will argue that even if he tossed the grenade that killed a U.S. special forces solider, it wasn't murder and his other activities weren't war crimes.
"He is, in fact, an innocent person because he never committed a crime," said Mr. Morison. The appeal will be filed Friday to the U.S. Court of Military Commission Review in Washington, D.C.
Mr. Khadr has been vilified by some as a dangerous terrorist and murderer who needs to be locked up. His supporters claim he's the victim, a child soldier, who deserved rehabilitation, not abuse, solitary confinement and more than a decade of imprisonment in Afghanistan, Guantanamo and now a maximum security penitentiary in Alberta.
In a pre-trial deal in Guantanamo in October 2010, Mr. Khadr pleaded guilty to murder in violation of the law of war, attempted murder in violation of the law of war, spying, conspiracy and providing material support for terrorism and was sentenced to 40 more years by a military panel. But the deal called for only eight additional years of which one was to be spent in Guantanamo. The Canadian government stalled his return for another year. The Toronto-born son of a major al-Qaeda figure was finally flown home in shackles in September, 2012.
Mr. Khadr, now 27, was 15 when, in July 2002, an elite U.S. Special Forces unit stormed the Afghan compound where he lived with a group of bomb-building Islamic jihadis planting roadside explosives.
After U.S. warplanes largely destroyed the compound with 250-kilogram bombs, ground forces stormed the ruins. Sergeant Christopher Speer, helmetless and wearing Afghan garb, was killed by a grenade blast. Sgt. Speer, a qualified medic, was part of assault team when he suffered fatal head wounds.
That's a combat death, not a war crime, said Mr. Morison in an interview. "Using a conventional lawful weapon in the course of conventional battle is not a war crime; he (Khadr) neither killed a protected person, nor used an illegal weapon, nor used an illegal tactic of some sort, like perfidy."
As part of his plea-bargain deal, Mr. Khadr waived his right to appeal.
However, that waiver doesn't apply, Mr. Morison says, because the Congressional statute that created the latest version of the military tribunals established for the offshore trials at Guantanamo Navy Station in Cuba doesn't permit certain types of appeals – for instance on jurisdiction – to be waived.
"Khadr has a statutory right of appeal, he has an absolute right to have his case heard and the court is statutorily obligated to reach a decision, they can't duck it," Mr. Morison said.
The appeal claims that Mr. Khadr didn't do anything that qualified as a war crime under international law.
"Even if you take the government's allegations at face value, and assume, for the sake of argument that they are true, he (Khadr) still didn't commit a crime for which he could be tried by a military commission," Mr. Morison said.
Mr. Khadr was shot multiple times and had his life and vision in one eye saved by U.S. battlefield medics, a helicopter evacuation and emergency surgery in Baghram. He was the first – and remains the only – enemy combatant charged with murder after a firefight in more than a decade of insurgency wars in Afghanistan and Iraq during which more than 6,700 U.S. soldiers have been killed.
Mr. Morison expects to meet his client for the first time soon. "I'm going to Canada next week and the first thing I will do is meet with Omar personally," Mr. Morison said, adding the Pentagon had refused to authorize travel even though it had appointed appeals counsel in Mr. Khadr's case. "I can tell you that he (Khadr) knows the appeal is happening, and I think it is fair to say that he's anxious to get the process started," Mr. Morison said.
Mr. Khadr's appeal arises out of an October 2012 ruling by the U.S. Court of Appeals for the District of Columbia in another Guantanamo conviction of Salim Hamdan, who served as a driver for Osama bin Laden. In that ruling the count vacated the conviction because the charge of material support for terrorism simply wasn't war crime under the 2006 revised laws governing the Guantanamo tribunals.
Once Khadr's appeal is dealt with by the Court of Military Commission Review, it may also wind up in the civilian court that ruled on Mr. Hamdan.