United States of America v. Omar Ahmed Khadr

Court	Military Commission, United States
Decision title	Verdict
Decision date	31 October 2010
Parties	United States of America Omar Ahmed Khadr, a.k.a. Akhbar Famad, a.k.a. Akhbar Farnad, a.k.a. Ahmed Muhammed Khahi
Other names	Akhbar Farhad Ahmed Muhammed Khali Akhbar Famad
Categories	Conspiracy, Terrorism, War crimes
Keywords	murder, child, child soldier, conspiracy, material support, Terrorism
Links	Not available yet
Other countries involved	Canada

Summary

Omar Khadr, a Canadian citizen, was 15 years old when he was captured and seriously injured in a firefight in Afghanistan on 27 July 2002. The US accused Khadr of throwing a grenade that killed US Army Sergeant First Class Christopher Speer and injured two others. He was charged with murder and attempted murder, conspiracy to commit terrorism, providing support for terrorism, and spying.

On 25 October 2010, Khadr pleaded guilty to murder and attempted murder in violation of the laws of war, conspiracy to commit terrorism, providing support for terrorism, and spying, and was sentenced to eight years of imprisonment.

In spite of Khadr's young age at the time of his capture, the United States imprisoned him together with adults.

Khadr was the first person since World War II to be prosecuted in a military commission for war crimes committed while still a minor. His conviction and sentence were widely denounced by civil rights groups and various newspaper editorials. He has been frequently referred to as a child soldier.

Procedural history

The Canadian citizen, Omar Ahmed Khadr (1986), was captured in July 2002 in Afghanistan when he was 15 years old and was transferred to Guantanamo Bay in November 2002. The Combatant Status Review Tribunal (CSRT) concluded on 8 September 2004 that Khadr was an “enemy combatant”.

US Military Commissions

On 7 November 2005, Khadr was charged with conspiracy, murder, attempted murder and aiding the enemy. He was to be tried by the Military Commission, but it was later abolished after the Supreme Court ruled that military tribunals were unlawful.

On 2 February 2007, new charges were sworn against Khadr, namely murder, attempted murder, conspiracy, providing material support for terrorism and spying. Khadr petitioned the U.S. Supreme Court to review the legality of the Military Commission and his detention, but his request was denied on 24 April 2007.

On 4 June 2007, all charges against Khadr were dismissed because Khadr was not classified as an “unlawful enemy combatant”. The Military Commissions Act of 2006 says that military commissions do not have jurisdiction over those classified as “lawful combatants”. This decision was finally overturned and on 9 September 2007, charges were reinstated against Khadr.

On 8 March 2010, Khadr sought an order declaring inadmissible into evidence all statements pursuant to § 948r of the Military Commissions Act of 2009 and Military Commissions Rules of Evidence 304 because they were the product of torture, involuntary, unreliable.

On 17 August 2010, the US Supreme Court refused the petition for writ of mandamus filed on 2 August 2010 and rejected claims of torture to obtain a confession. The heavily-criticized military court trial against Khadr began on 10 August 2010.

However, on 14 October 2010, proceedings were suspended as the parties began negotiations on a plea agreement, which was made on 13 October 2010. On 31 October 2010, the details of the agreement and sentence were released, with Khadr admitting his guilt and receiving a sentence of 40 years' imprisonment. Under the terms of the agreement, Khadr was to serve a maximum of 8 years.

US Courts

On 15 April 2008, following a petition filed by Khadr, the US Court of Appeals, Columbia, declined to review his combatant status. In addition, on 30 April 2008, a motion to dismiss the case due to child soldier status was rejected. Further denial was declared by the US Columbia District Court on the request to have the trial stopped.

On 13 October 2010, a Stipulation of Facts was agreed upon by the Prosecution and the Defence.

Canadian Courts

The proceedings before the Canadian Courts relates to the request by Khadr's lawyers to have access to certain documents that Canada allegedly provided to US authorities, along with videotapes of Khadr's interrogations at Guantanamo Bay.

On 23 May 2008, the Supreme Court of Canada ruled that Omar Khadr has a constitutional right to see confidential documents, but that the government could withhold some information for national security purposes.

Furthermore, on 23 April 2009, the Federal Court ruled to order Canada to seek Khadr's repatriation from Guantanamo Bay, but the Supreme Court overturned this decision on 29 January 2010. The Supreme Court also unanimously found that Canada had breached Khadr's rights under the Canadian Charter of Rights and Freedoms.

On 5 July 2010, the Canadian Federal Court gave the Canadian government seven days to remedy its breach of Khadr's rights, having so far failed to ameliorate the breaches of the Charter. On 27 July 2010, the Federal Court of Appeal ruled that the lower court lacked the authority to impose a remedy and the decision had interfered with matters solely the domain of the government.

In April 2012, Omar Khadr, still detained at Guantanamo, sent an application to the Canadian government requesting a transfer to his home state. On 29 September 2012, Omar Khadr was transfered to Canada where he will serve the rest of his eight-year sentence.

Related developments

Omar Khadr was repatriated to Canada on September 29, 2012, where he will serve the remainder of his sentence. He was incarcerated at maximum-security prison Millhaven Institution near Bath, Kingston, Ontario upon his arrival.He would be eligible for parole in mid-2013.

Khadr was classified as a prisoner who should be held in maximum security, due to his murder conviction.This has delayed his application for parole, as prisoners in maximum security are never given parole.

On 14 March 2013, Colin Perkel of the Canadian Press, reported that Corrections Canada was refusing to let journalists interview Khadr. Corrections Canada justified its refusal by asserting an interview could interfere with Khadr's treatment plan, could pose a security risk, or could be disruptive.

On 28 May 2013, Khadr was transferred to maximum security prison Edmonton Institution in Edmonton, Alberta, Canada.

On 13 August 2013, Dennis Edney filed a brief arguing that under Canada's International Transfer of Offenders Act, it was not legal to hold Khadr in an adult institution, since the crime he pled guilty to occurred when he was a minor.

Legally relevant facts

Omar Khadr was 15 years old when he was captured.

In the pre-trial agreement, Khadr admitted to throwing a grenade that killed Army Sgt. 1st Class Christopher Speer after a firefight between Khadr and his associates and coalition forces. Khadr also admitted that prior to and during the firefight, he had the opportunity to safely leave but chose to stay and fight against the American and coalition forces. He admitted building and planting ten landmines, intending to kill as many Americans as possible.

Core legal questions

Was Omar Khadr guilty of murder and attempted murder in violation of the laws of war, conspiracy to commit terrorism, providing support for terrorism, and spying?

Court's holding and analysis

As part of a plea agreement, Omar Khadr admitted guilt with respect to five war crimes charges, in particular murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism, and spying. He acknowledged that he was ineligible for protection as a prisoner of war under the Geneva conventions because he was not a member of an organised regular fighting force.

Khadr admitted to throwing a grenade that killed Army Sgt. 1st Class Christopher Speer after a firefight between Khadr and his associates and coalition forces. Khadr admitted that prior to and during the firefight, he had the opportunity to safely leave but chose to stay and fight against the American and coalition forces. He admitted building and planting ten landmines, intending to kill as many Americans as possible. A US military tribunal sentenced Khadr to 40 years in prison for war crimes but a pre-trial agreement concluded between the Prosecution and the Defence limited the actual sentence to eight years.

Under the rules provided by the Manual for Military Commissions, Khadr will not receive credit for the time (more than eight years) that he spent in law of war detention before his conviction. Khadr’s sentence was limited by the terms of his plea agreement to eight years confinement, but he received the benefit of whichever is less - the adjudged sentence or the eight-year sentence limitation. Consistent with the terms of Khadr's plea agreement, the governments of Canada and the United States exchanged notes reflecting that both would support Khadr's transfer to Canadian custody to serve the remainder of his approved sentence after he serves one year in U.S. custody.