The US Court of Military Commission Review (CMCR) made an important decision that acknowledged its illegitimacy in convicting on charges of providing material support for terrorism. The CMCR decision follows on the ruling by the D.C. Circuit Court (Al Bahlul v. United States), which held that material support for terrorism is not an offense that the military commission could try.

David Hicks, a former Guantanamo prisoner was convicted by the military commission of this offense but now that conviction has been quashed. He is innocent. His lawyer Stephen Kenny said that the decision confirms that Mr Hicks’ actions were not illegal. “He wasn’t doing anything that was a breach of Australian, international or US law. US civilian courts have ruled that the charge of providing material support for terrorism cannot be considered a war crime in cases that were brought for actions before 2006, when new laws were adopted.”

US civilian courts have ruled that the charge of providing material support for terrorism cannot be considered a war crime in cases that were brought for actions before 2006, when new laws were adopted.”

Omar Khadr was also ‘convicted’ of providing material support, and like David HIcks was told that he had no appeal rights as part of the plea deal. Now it’s clear that appeal rights have not been extinguished, rather they continue to exist.

Nate Whitling, Omar’s lawyer suggested that the ruling could help Omar’s U.S. appeal and stated that “(The) decision in the David Hicks case is important to Omar Khadr’s appeal before the same court. Essentially, it confirms that the form of waiver signed by Omar as part of his plea deal is invalid, and that he may appeal all five of his ‘convictions’.”

Sam Morison, Pentagon appointed lawyer is currently appealing all of Omar’s ‘convictions‘. This challenge has been delayed by other appeals in the system, nevertheless we are hopeful that Omar’s innocence will also be established.

In light of this US appeal and other decisions which have successfully negated the legitimacy of the military commission, Omar’s lawyers have requested bail. The bail hearing is set for March 24-25 in Edmonton. Let’s hope that justice and fairness will prevail for Omar.

Here is a listing of media articles as well as the Hicks decision:

• First Military Commission Conviction Reversed, Former Guantánamo Prisoner Not Guilty of “Material Support”. Center for Constitutional Rights | 18 Feb 2015
• United States Court of Military Commissions Review. Decision David M. Hicks | 18 Feb 2021
• David Hicks war crimes ruling may help Omar Khadr’s appeal, U.S. Court of Military Commission Review struck down March 2007 conviction of Guantanamo Bay inmate. Colin Perkel, CBC News | 19 Feb 2021
• Australian David Hicks overturns US terrorism conviction. BBC News | 19 Feb 2015