The Case of Omar Ahmed Khadr, Canada

Canadian citizen Omar Khadr was detained by U.S. forces in Afghanistan in July 2002 and transferred to Guantánamo Naval Base in October 2002. He was 15 years old when he was taken to Guantánamo and has spent more than a quarter of his life there, now in his eighth year of confinement. Khadr alleges he was repeatedly subjected to torture and cruel treatment during multiple interrogation sessions in U.S. military custody at Bagram Air Field in Afghanistan and at Guantánamo Bay.

Khadr is accused of killing a U.S. soldier with a hand grenade during combat with U.S. forces, planting mines to target U.S. convoys, and gathering surveillance at an airport in Afghanistan. He is the sole detainee at Guantánamo Bay to be charged for acts committed as a juvenile, after charges were dropped against Mohammed Jawad, who was subsequently repatriated to Afghanistan in 2009.

The International Covenant on Civil and Political Rights and international juvenile justice standards require prompt determination of juvenile cases and discourage detainment of juveniles at all except as a last resort, but such standards have not been heeded by the U.S. government in the case of Khadr.  He was held for two years prior to being given access to an attorney, waited more than three years prior to being charged before the first military commission, and is now in his eighth year in U.S. custody.  During Khadr's time in detainment, he has been held both in solitary confinement as well as with adult detainees, contrary to international standards requiring that children be treated in accordance with their age and segregated from adult detainees. Khadr also alleges to have been subjected to abusive interrogation practices in violation of U.S. humane treatment standards, including Common Article 3 of the Geneva Conventions, and other binding prohibitions against torture and cruel, inhuman, and degrading treatment

In 2002, the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which prohibits the use of children under 18 in armed conflict and requires signatories to criminalize such conduct and rehabilitate former child soldiers as well as provide "all appropriate assistance for their physical and psychological recovery and their social reintegration."  The U.S. has clearly failed to heed these legal obligations in the case of Khadr.

Khadr was designated an "enemy combatant" and an al Qaeda fighter at a Combatant Status Review Tribunal ("CSRT") in September 2004. On April 24, 2007, the Convening Authority referred charges against Khadr for murder, attempted murder, conspiracy, providing material support for terrorism, and spying on U.S. forces in Afghanistan. But in June 2007, military commission Judge U.S. Army Colonel Peter Brownback dismissed the charges as improper because Khadr had not been designated an "unlawful enemy combatant" by the CSRT. The CSRT had found that Khadr was an "enemy combatant," but it had not determined whether he was a "lawful" or "unlawful" combatant.

The U.S. government appealed Colonel Brownback's decision to the Court of Military Commission Review ("CMCR")--a special military appeals court which was created pursuant to the 2006 Military Commissions Act. In September 2007, in its first decision ever, the CMCR held that commission judges were themselves authorized to make "unlawful enemy combatant" determinations. Following the CMCR's decision, the military commission charges against Khadr were reinstated.

In October 2007, Khadr appealed the CMCR decision to the D.C. Circuit Court of Appeals. The government moved to dismiss Khadr's appeal, contending that the D.C. Circuit has no jurisdiction to hear the case until the military commission trial is completed. At the same time, Khadr asked the D.C. Circuit to delay the military commission proceedings against him until ruling on his appeal. The court rejected Khadr's plea for delay on November 6, 2007.

Khadr was arraigned before Colonel Brownback on November 8, 2007. The question whether Khadr is an "unlawful enemy combatant" subject to the jurisdiction of the military commissions was temporarily set aside.

In January 2008, Khadr's lawyers moved to dismiss the charges against him on several grounds, including: (1) lack of subject matter jurisdiction; (2) violation of the bill of attainder clause of the U.S. Constitution; and (3) lack of jurisdiction to try child soldiers under the Military Commissions Act of 2006 ("MCA"). The defense argued that Khadr must be tried based upon the law in 2002, when the alleged offenses occurred, and that none of the charges fall within the category of offenses historically tried by military commission.

They further contended that the MCA is an unconstitutional bill of attainder as applied to Khadr. Finally, they argued that Congress did not intend for military commissions to hear juvenile cases, and that the MCA ignores fair trial standards for juvenile offenders outlined in the Juvenile Justice Act. The government opposed the motions. A hearing on the motions was held on February 4, 2008.

In a written ruling on February 20, 2008, Colonel Brownback denied the defense motion to dismiss for violation of the bill of attainder clause. In another written ruling on May 2, 2008, Colonel Brownback denied the defense motion to dismiss for lack of jurisdiction to try child soldiers.

Discovery hearings were held in Khadr's case on March 13 and April 7, 2008. The defense had filed more than 50 discovery motions, including requests for the names of all eyewitnesses to the alleged crime, any physical evidence seized from the scene of the crime, all of Khadr's statements made during interrogation, the names of any and all interrogators and any notes taken by the interrogators, copies of any and all audio and video recordings of the interrogations, and other documents relating to the interrogation methods used on Khadr and the abuse and mistreatment of security detainees. 

In another discovery hearing on May 8, 2008, the prosecution pressured Judge Brownback to set a trial date. Judge Brownback, however, ordered the government to produce DIMS (Detainee Information Management System) records, which document Khadr's day-to-day treatment at Guantánamo, and warned that failure to produce the documents could result in an "abate[ment]" of the proceedings altogether.

On May 29, 2008, Chief Judge Marine Col. Ralph Kohlmann unexpectedly dismissed Judge Brownback from Khadr's case, replacing him with Army Col. Patrick Parrish. Although some suspected that Judge Brownback was dismissed because of his repeated rulings against the government, Judge Kohlmann said his decision was "based on a number of manpower management considerations" unrelated to the tribunals.

In early June 2008, Khadr's lawyers issued a press release announcing their review of a "standard operating procedure" document, turned over by the government on discovery, encouraging interrogators to destroy handwritten notes containing interrogation information. The defense argued that the document suggests that the Department of Defense destroyed evidence, as a matter of policy, to thwart its use in pending or anticipated legal proceedings.

At a pretrial hearing in June 2008, Khadr's attorneys moved for additional discovery. Khadr's trial was set for October 8, 2008.

In July 2008, Khadr's lawyers released a ten-minute video showing an interrogation of Khadr by Canadian intelligence officials in Guantánamo in 2003. The video shows a distraught teen crying and pleading for his release.

Pretrial hearings continued on August 13, 2008, as Lt. Cmdr. William Kuebler, Khadr's Pentagon-appointed lawyer, argued that his client should be given an independent psychological examination. Kuebler also argued an unlawful influence motion, claiming that the prosecution allowed other government agencies to influence the amount of information shared with the defense.

On September 4, 2008, Judge Parrish banned Air Force Brig. Gen. Thomas Hartmann from acting as the Pentagon legal advisor in Khadr's case, citing concerns that Hartmann favored the prosecution. Kuebler said the ruling provided "token relief," recognizing that Hartmann had already refused to fund a child psychologist that may have bolstered the defense's case.

At a pretrial hearing on September 10, 2008, Khadr's attorneys asked Judge Parrish to grant defense attorneys access to eyewitness descriptions of the firefight during which Khadr allegedly threw a grenade that killed a U.S. soldier. They also requested that Khadr be given a mental health examination. On September 11, Judge Parrish agreed to delay Khadr's trial. And on September 16, 2008, Khadr's trial was rescheduled for November 10, 2008.

Additional pretrial hearings began on October 22, 2008. Navy Lt.-Cmdr. Bill Kuebler requested an indefinite delay of Khadr's trial, arguing that political interference had led the government to suppress evidence. Kuebler also stated that the defense was given an incomplete account of Khadr's medical records and that Khadr should be given sufficient time to develop a relationship with an independent psychologist.

On October 24, 2008, Judge Parrish agreed to delay the trial yet again. Pretrial hearings are currently scheduled to begin on January 19, 2009, with the trial set to start on January 26, 2009.

On January 12, 2009, Human Rights First, along with four other prominent human rights groups, sent a letter to President-elect Barack Obama, urging Obama to drop the military commission charges against Khadr and either repatriate him to Canada or prosecute him in U.S. federal courts.

Following a 120-day continuance at the request of the Obama Administration, pretrial hearings resumed on June 1, 2009. Khadr complained about infighting amongst his Pentagon-appointed lawyers and asked to fire them. He also rejected exercising his right to proceed pro se. Judge Parrish refused to allow Khadr's case to proceed without any counsel and Khadr chose to retain only Navy Lt.-Cmdr. Kuebler as his attorney.

Pretrial hearings were scheduled to resume on July 15, 2009 to resolve remaining representation issues and to consider the government's motion for an additional 120-day continuance.  According to a Human Rights First observer at the hearing, Navy Lt. Cmdr. Kuebler argued against the government's request for still more delays in Khadr's case.  Khadr stated, "I have no trust [in the military lawyers]."  He did not want to continue to have Lt. Cmdr. Kuebler, or any uniformed attorney, play a lead role in his defense. The judge agreed to remove Kuebler pending security clearance for a civilian attorney that Khadr approved.

A motion for continuance was scheduled for Khadr on October 7, 2009. At what amounted to about a thirty-minute hearing according to a Human Rights First representative who was present to observe the proceedings, Navy Lieutenant Commander William Kuebler, who had served as Khadr's military defense attorney since early 2007, was officially dismissed from the case.  His defense attorneys are now civilian attorneys Barry Coburn and Kobie Flowers of Coburn and Coffman, PLLC.

On November 13, 2009, Attorney General Holder and Defense Secretary Robert M. Gates announced that Khadr would be tried in military commission.  HRF observers are monitoring the current hearings in the Khadr case from April 27 ? May 6, 2010.

Case Documents Available from the Department of Defense

Sign the petition to close Guantánamo and bring an end to the military commissions.