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Omar Khadr deserves credit for 'illegal punishment' if convicted, lawyer says

In this photo of a sketch by courtroom artist Janet Hamlin and reviewed by a U.S. Department of Defense official, Canadian defendant Omar Khadr attends his hearing in the courthouse for the U.S. military war crimes commission at the Camp Justice compound on Guantanamo Bay U.S. Naval Base in Cuba, Wednesday, April 28, 2010.

Janet Hamlin

Guantanamo Bay inmate Omar Khadr should be given three-for-one sentencing credit for the abuse he suffered in pretrial custody if convicted of war crimes, his lawyer argues.

In a motion to the military commission released Friday, Mr. Khadr's Pentagon-appointed lawyer also argues the Canadian citizen deserves regular time-served credit for pretrial detention.

Mr. Khadr faces a life sentence if convicted.

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The notion that the Toronto-born Mr. Khadr, 23, suffered "illegal pretrial punishment" rests on his contention that he was abused and tortured in custody.

The badly injured Mr. Khadr was captured in Afghanistan in July 2002 when he was 15 years old and has been held by the U.S. since.

He was taken to Bagram prison in Afghanistan before being sent to Guantanamo Bay. In both places, Mr. Khadr complained of abuse amounting to torture, including being held in stress positions, threatened and suffocated until he passed out.

International law and the U.S. constitution itself bars such mistreatment, Lieutenant-Colonel Jon Jackson argues in his motion.

"Due process is violated if pretrial conditions of confinement equate with punishment," the motion states.

"It is clear the United States violated Mr. Khadr's right ... to be free of inhumane, degrading and cruel treatment."

It's not clear exactly how much time Lt.-Col. Jackson considers Mr. Khadr spent under those conditions and would therefore deserve triple credit for.

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In response, the prosecution said it opposed any sentencing relief should Mr. Khadr be found guilty.

For one thing, the prosecution maintains the military commission has no jurisdiction to assess "administrative" credit equal to Mr. Khadr's time already in detention.

The commission also has no jurisdiction to assess how he was treated as an illegal combatant and Mr. Khadr has not shown he has suffered "punishment."

Rather, Mr. Khadr was "treated with politeness and respect" during interrogations at Bagram in Afghanistan and in Guantanamo Bay, according to the prosecution response.

During those interrogations, the prosecution led by Major Jeffrey Groharing maintains, Mr. Khadr admitted to throwing a hand grenade that killed an American special forces soldier.

In any event, the presiding judge, Colonel Patrick Parrish, should first await the outcome of the trial before looking at the sentencing-credit arguments.

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Mr. Khadr is charged with murdering the soldier in violation of the rules of war as well as other terrorism-related crimes.

The sentencing motion is one of several to be heard starting Monday before Mr. Khadr's long-awaited and oft-delayed trial - slated to start Tuesday - begins.

The defence is still trying to have self-incriminating statements and a video showing Mr. Khadr with explosives, thrown out as the product of torture.

Last month, Mr. Khadr fired his American civilian lawyers, but Lt.-Col. Jackson, appointed by the Pentagon, continues to defend him.

Lt.-Col. Jackson has also filed an emergency petition with the U.S. Supreme Court requesting the trial be stayed on the grounds the underlying legislation is illegal.

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