The Legal Basis for Omar Khadr’s War Crimes Appeal

The legal team for Omar Khadr announced yesterday that they intend to appeal his plea bargain before the military commission at Guantanamo Bay. Khadr is currently serving out his eight-year sentence at Millhaven Institution near Kingston, Ontario. Khadr is eligible for parole this summer.

The appeal would be to an American domestic court, the U.S. Court of Appeals for the District of Columbia Circuit, and if successful would result in Khadr being released immediately. The international transfer agreement under which Khadr was moved to Canada would no longer require his detention.

Khadr’s guilty plea on October 25, 2010 included a confession to killing American Sgt. 1st Class Christopher Speer in 2002 when he was 15 years old; and being guilty for war crimes, including murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying.

There are considerable problems with Khadr’s plea, not least being the conditions under which he made these statements. Without his plea Khadr potentially faced a lifetime of uncertain incarceration at Guantanamo, while an indefinite and ill-defined war on terrorism continued. If his lawyers are to be believed, he was also threatened by American authorities with being gang raped or tortured after being transferred elsewhere.

Numerous challenges exist around the military commissions at Guantanamo. The Supreme Court of the Unites States ruled in the 2004 decision of Rasul v. Bush that habeas corpus rights do apply to detainees, and that they were entitled to legal counsel. In Hamdan v. Rumsfeld (Hamdan I), the Supreme Court of the United States highly criticized the Combatant Status Review Tribunals (CSRTs). The inability to review evidence, discuss evidence with the accused, use of unreliable evidence, and lack of judicial review all violated Art. 36 (b) of the Uniform Code of Military Justice (UCMJ), which requires the President to use the same rules and procedures in military commissions as far as it is practicable. The President had not provided any justification why it was impractical in this case.

The Court in Hamdan I also found that the CSRTs violated Common Article 3 of the Third Geneva Convention, which states that signatories must provide minimum provisions to persons detained outside the combat, including prohibitions on passing judgement without judicial guarantees. The Court rejected the government’s argument that Article 3 of the Geneva Conventions did not apply to al Qaeda because the conflict was international in scope. The Geneva Conventions applies here because it includes individuals who are not associated with a signatory or non-signatory (i.e. states) that may still be involved in a conflict.

In response to Hamdan I Congress passed the Military Commissions Act of 2006 (MCA) to address some of the procedural flaws in the CSRTs. The charges were dropped against both Hamdan and Omar Khadr in 2007 because the CSRT classified him as an enemy combatant, whereas the commission only allowed detention of alien “unlawful” enemy combatants.

Unlawful combatants do not have the protections normally afforded to lawful combatants who become prisoners of war, i.e. the UCMJ. Unlawful combatants remain civilians and may be captured, detained, and treated as criminals under domestic law for their unlawful actions in combat.

Khadr was not released after the charges were dropped in 2007, and the charges were soon reinstated by the United States Court of Military Commission Review, which held that the MCA commission had its own jurisdiction to determine lawful combat status. The MCA itself was later found unconstitutional in 2008 in Boumediene v. Bush, which led to the amendments in the Military Commissions Act of 2009 (Title XVIII).

Despite all the changes to the processes at Guantanamo they still receive particular concern by independent commentators. A comparison of the rights in the military commission trials to criminal trials in the Federal Court has been neatly summarized by Jennifer K. Elsea here. 

Trials before the commission do not have juries. They have panels which are selected from members of the military, but only two-thirds of these panel members are required for a conviction. 

Alex Neve, Secretary General of Amnesty International Canada, described the selection process during Khadr’s trial as follows:

What stays with me from these two days is the intensity of the prosecution’s determination to exclude anyone who had an informed view about the well-documented human rights concerns associated with Guantánamo Bay and other aspects of the USA’s post-September 11th counter-terrorism policies. This was particularly notable in the case of the Army Lieutenant Colonel against whom the prosecution eventually used their peremptory challenge. He spoke openly about his understanding of the concerns that had arisen at Guantánamo Bay and elsewhere. He worried about what he saw as US moral authority having been eroded. He talked of concerns such as lengthy detention without charge, charges being brought which had limited legal precedent, and the admissibility of information obtained under torture. He spoke of his concerns about the positions that former White House Counsel and US Attorney General Alberto Gonzales had taken on the handling of detainees and interrogation methods. Ultimately he repeated several times that he supported President Obama’s position that it would be best to close down the Guantánamo detention facility.

The prosecution was vehement in laying out their case for why this Lieutenant Colonel should be excluded. He was accused of disloyalty for his criticism of Alberto Gonzales. He was described as having a hostile attitude towards the government. And he was repeatedly chastised for having said that he “agreed with the President” when it came to Guantánamo Bay, for which he was accused of clearly being biased against the government. One was left wondering just who the prosecution thinks the government is.

However, critiques over detention at Guantanamo by the international community are not likely to be considered or weighed by the court in the Khadr appeal, nor will elements of duress or the fact that he was arguable a child soldier under international law. The basis for the Khadr appeal will largely center around whether the charges against him were actually a crime in international law at the time when he committed them.

Two key cases appear to support Khadr’s case.

In December 2007 the MCA commission found Hamdan an alien “unlawful” combatant, and convicted him in August 2008 to 66 months. He served out the remainder of his commuted sentence in his homeland in Yemen. But in October 2012 the US Appeals Court for the District of Columbia acquitted him and overturned the charge (Hamdan II). The court made three important points:

1. Despite Hamdan’s release the case was still important and had considerable consequences in law
2. Congress intended to avoid a constitutional violation of ex post facto laws in the creation of MCA 2006 (see clause 3 of Article I, Section 9)
3. When Hamdan committed the acts, the international law of war did not include material support for terrorism as a war crime

The court indicated that aiding and abetting terrorism is a war crime in international law. Hamdan, however, was charged with material support for terrorism, not aiding and abetting, which has a different causation standard and mens rea requirement. Hamdan could not be charged for actions which were not crimes under international law while he had committed them.

On the basis of Hamdan II another Guantanamo detainee was successful on January 25, 2013 in having his charges dropped, in Bahlul v. United States. Ali al-Bahlul was convicted on November 3, 2008 by the MCA commission for providing material support and resources for terrorism, conspiring with al Qaeda to commit murder, and soliciting people to commit these offences. Al-Bahlul remains the only Guantanamo detainee convicted before 2009 who is still held there.

When the United States Court of Military Commission Review considered Bahlul in 2011 it did not consider the ex post facto issue sustainable, as they considered the accused’s conduct an offense under the law of armed conflict. The commission pointed to the lack of any treaty or customary international law that would allow membership in a terrorist organization when engaged in armed conflict with a nation to provide any status under the law of armed conflict. The Court of Appeal in Hamdan II took the opposite position, and noted that no treaty or customary international law had made material support an internationally recognized crime. The court pointed to other offences like spying and aiding the enemy which had yet to achieve international recognition.

The Department of Justice filed a Supplemental Brief in Bahlul on January 9, 2013, arguing that Hamdan II was decided incorrectly, and filed a petition for rehearing on March 5, 2013. The Court of Appeal granted this rehearing on April 23, 2013, meaning the cases that Khadr will rely upon are still largely contested.

Finally, the charges that Khadr confessed to in the plea bargain include elements like murder which would not appear to violate the ex post facto rule, limiting the holding in Hamdan II and Bahlul in his appeal. Even if Khadr was able to have the war crimes conviction overturned he would still have to contend with the death of Speer, for which there is largely contradictory evidence surrounding his role.

While the Guantanamo judicial process has been a complete fiasco for anyone in the international legal community, it’s still unlikely that the issues around the MCA would be resolved any time soon, or that an appeal by Khadr would result in his release in the near future.