TORONTO - The judge presiding over Omar Khadr's challenge to his conviction by U.S. military commission may himself be committing a federal crime by maintaining a law practice, according to allegations contained in new court documents.
In an unusual application to the Court of Appeals for the D.C. Circuit this week, lawyers for the former Guantanamo Bay prisoner call for Judge William (Bill) Pollard to be thrown off the panel dealing with the Canadian's appeal.
They argue that two federal statutes — one dating back 200 years — clearly prohibit a judge from continuing to work as a lawyer.
"Khadr has a right to a properly qualified court," Sam Morison, Khadr's Pentagon-appointed lawyer, said from Washington.
"If there's a disqualified judge, that undermines any decision that they make."
Pollard, a partner in a Wall Street law firm, is one of two civilian appointees on the U.S. Court of Military Commission Review. The court acts as an appeal court for matters related to military commissions.
The presidential appointee to the review court has refused to step down from the Khadr file. He referred a request to discuss the situation to the Pentagon's public-relations department, which did not comment.
However, according to court documents, Pollard maintains he is a "special government employee" of the Department of Defence and is allowed to work as a judge on the military review court while maintaining his law practice.
Rules against judges continuing to be lawyers do not apply to his situation, he says.
The Toronto-born Khadr pleaded guilty in October 2010 before a commission in Guantanamo Bay to five war crimes he was accused of committing as a 15-year-old in Afghanistan in July 2002 and sentenced to a further eight years. He is currently incarcerated in Alberta.
Khadr, 28, has long maintained his American captors abused or tortured him, and has said he only entered the plea deal to be returned to Canada.
Although Ottawa brands him a dangerous terrorist, legal experts and human rights groups have condemned his treatment and the military commission proceedings.
A year ago, he filed an appeal of his conviction with the Court of Military Commission Review, arguing in part the alleged offences to which he pleaded guilty were not war crimes under either U.S. domestic or international law.
His appeal currently remains in limbo, with the review court presided over by Pollard refusing to deal with the merits pending the outcome of another case.
"We think that we're getting hosed — we think that this is kind of a star chamber," Morison said. "There are some serious problems with this tribunal."
While Khadr's lawyers also argue Pollard could appear to be in a conflict of interest because his legal practice handles cases to which the U.S. government is a party or has a substantial interest in, the judge maintains they have offered no such evidence.
For Morison, however, the issue is simple.
"Ordinarily, judges can't act as lawyers and, ordinarily, judges don't try to act as lawyers," he said. "We're just asking for him to be disqualified."
It's not clear when the D.C. Circuit court will decide if it will hear Khadr's petition to remove Pollard.