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 sixth 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 one of two detainees at Guantánamo Bay to be charged for acts committed as a juvenile.

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 a then-non-existent special military appeals court, the Court of Military Commission Review (“CMCR”). 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 had 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”). They 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, Col. Brownback denied the defense motion to dismiss for violation of the bill of attainder clause.  In another written ruling on May 2, 2008, Col. 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 has 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. 

Col. Brownback is expected to rule on some of the discovery motions when proceedings continue on May 8, 2008.

• Motions to Dismiss (02/2004-08/2008)
• Khadr Commission Transcripts, Exhibits, and Allied Papers
• Khadr Referral and Charge Sheet
• DOD Press Release (January 10, 2006)
• DOD Press Release (January 9, 2006)
• DOD Press Release (December 1, 2005)
• DOD Press Release (November 7, 2005)