WASHINGTON — The Globe and Mail
Published Friday, Nov. 22 2013, 9:57 PM EST
Last updated Sunday, Nov. 24 2013, 2:29 PM EST
In an unexpected development that will further delay Canadian Omar Khadr’s bid to overturn his Guantanamo Bay war crimes convictions, the U.S. military appeals court has demanded his legal team establish that it should even hear the case.
While the right of others convicted at Guantanamo to appeal have been routinely accepted by the Court of Military Appeals – including one filed only days before Mr. Khadr by Australian David Hicks who also was convicted after a plea-bargained deal – the court has turned Mr. Khadr’s case into a two-step process that could add months, perhaps years, of delay.
In effect it has ordered the issue of whether Mr. Khadr’s appeal should be heard first and decided separately from the underlying merits of whether Mr. Khadr was wrongfully convicted for acts that weren’t war crimes under international or U.S. law.
Dennis Edney, who represents Mr., Khadr in Canada, said the latest twist was yet another politically-inspired effort to thwart justice. “Its a fundamentally corrupt system that is not good enough for an American citizen but good enough for a Canadian,” Mr. Edney said of the special terrorism and war crimes court originally set up by former President George W. Bush on a U.S. naval base in Guantanamo Cuba to keep them beyond the reach of U.S. constitutional protections. Those Guantanamo courts, somewhat modified, have been retained by President Barack Obama whose administration proceeded with the trials of Mr. Khadr and others.
Its not a “judicial process but a politically cynical process constituted to shield itself from public scrutiny,” said Mr. Edney, who has been harshly critical of successive Canadian government for failing to demand the return of Canadians held in Guantanamo, unlike all other western government who insisted their nationals be released. “Our government knows this and should have the courage to challenge this process for all Canadians,” he added.
In Washington, Mr. Khadr’s U.S. legal team has challenged the CMCR’s order, saying the requirement to litigate the issue of jurisdiction before the substance of Mr. Khadr’s appeal “needless bifurcates the case to [Mr. Khadr’s] obviously disadvantage.”
For instance, should the CMCR rule that it can’t hear Mr. Khadr’s appeal, then that ruling would in turn be appealed, meaning it might take years before there is a determination over jurisdiction, and without any consideration of the merits of the case.
“The practical effect of the Court’s order is thus to indefinitely position meaningful judicial review, thereby ensuring that [Mr. Khadr] will remain in prison unless and until his full term expires,” his lawyer Sam Morison, said in a motion filed Friday, Nov. 22.
Mr. Morison also raised the vexed issue of legitimacy that continues to cast a pall over the entire Guantanamo process.
“Rather than expediting these proceedings, the court …. unnecessarily protracts the resolution of this case, transparently tips the tactical scale in the government’s favour and thus case a pall of illegitimacy over any decision,” the filing said.
Mr. Khadr, currently imprisoned in Alberta, is appealing his U.S. military war crimes tribunal convictions.
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.”