TORONTO — Forcing a military court to hear and decide an appeal from former Guantanamo Bay prisoner Omar Khadr is inappropriate, the American government says.
In new legal filings, U.S. government lawyers argue the years-long delay in hearing the Canadian's case is reasonable, and civilian court intervention unjustified.
American troops captured the Toronto-born Khadr, 33, as a badly wounded 15-year-old in Afghanistan in 2002. He pleaded guilty in 2010 to five war crimes, including the murder of U.S. special forces soldier Christopher Speer, before a widely disparaged U.S. military commission in Guantanamo Bay.
As part of the plea deal in which he gave up his right to appeal, the court sentenced him to eight more years rather than to the jury-recommended 40 years.
"Khadr waited for years after the convening authority's action to challenge his guilty plea and appellate waiver," the government says. "He took no action until after he had pocketed the agreement's benefits, received his 32-year sentence reduction and transfer to Canada, and was beyond the jurisdiction of U.S. courts."
Khadr, who later said the deal was his only way out of the infamous American prison in Cuba, filed an appeal with the U.S. Court of Military Commission Review in 2013 after arriving in Canada. He argues that the offences to which he pleaded guilty were not war crimes when he allegedly committed them.
However, the military appellate court known as the CMCR put his case on hold while civilian courts decided another commission case, that of Ali Hamza al-Bahlul. A military commission had convicted al-Bahlul in 2008 for doing media-relations work for terrorist leader Osama bin Laden, but a civilian court quashed most of his convictions in 2013.
Khadr had asked the U.S. Court of Appeals for the District of Columbia Circuit in April to order the military reviewing court to hear his appeal.
"The CMCR has obdurately failed to exercise its affirmative statutory obligation to review the validity of his conviction," Khadr's lawyer Sam Morison stated in the petition. "After nearly six years, the CMCR's continued foot-dragging amounts to little more than a pocket veto of Khadr's right to direct review, and this court's appellate jurisdiction."
In August, the D.C. Circuit Court ordered the U.S. government to respond.
In its response, the U.S. government argues Khadr, who has been released unconditionally and lives in Edmonton, has suffered no prejudice. It argues that putting the hearing on hold was a "reasonable measure designed to conserve the court's and parties' resources."
The government also points to Khadr's waiver of his appeal rights, and says he is asking for an "extraordinary remedy" without clear justification.
In response, Khadr's lawyer argues the government itself has essentially admitted no legal reason exists to keep his client waiting because the al-Bahlul case has been decided.
"The government has effectively conceded that the CMCR's abeyance orders are unlawful...and that the resulting delay violated Khadr's indisputable right to due process in the application of his statutory right of appeal," Morison says.
The U.S. government, however, says al-Bahlul is appealing his sentence and rejects the claim that the Khadr delay has been "indefinite."
"What is stayed is the adjudication of the merits of Khadr’s claim that raises the same issues involved in Bahlul," the government says.
The dispute comes ahead of a hearing on Friday in which lawyers for Speer's relatives are expected to press a motion in Toronto that they be allowed to question him about his confession to war crimes. The motion is part of their ongoing quest to enforce a US$134-million wrongful-death award against Khadr from Utah.
The Canadian Press first published this story on Nov. 7, 2019.
Colin Perkel, The Canadian Press