Khadr's legal odyssey
Omar Khadr walking the track in 2010 after morning prayers in Guantanamo's "Camp 4." MICHELLE SHEPHARD / TORONTO STAR
Is Omar Khadr a war criminal?
More than 11 years after Khadr was shot and captured in Afghanistan, more than seven years after he was first charged in Guantanamo with war crimes, and more than three years after he pleaded guilty in return for an eight-year-sentence, that's the key question still being debated in court.
But thanks to what one law professor has called a "highly unusual" court order, that question could take years to decide.
Sam Morison, Khadr's Pentagon lawyer, said Friday that he received an order from the Court of Military Commissions Review, the Washington appeals court set up to hear challenges of Guantanamo convictions. The court only wants to hear arguments as to whether they have the authority to hear the appeal, not the merits of the appeal itself, he said.
This is not the norm, and it's not what has happened in three other cases that have come before the court.
"I think it's highly unusual. It doesn't make sense," said Jonathan Hafetz, an associate professor of law at Seton Hall Law School, in an interview Friday.
Morison called it a "complete departure from standard practice."
As Canadian Press reporter Colin Perkel explains: "Normally, appeal courts hear arguments on all the issues at play — including the merits of the case — allowing everything to be decided together."
That's what is happening in the case of Australian David Hicks, who also had a Guantanamo plea deal, and launched his appeal just a couple days before Khadr.
The court order in the Khadr case means his appeal could bounce from the military appeals court to a civilian court, and back again.
"This order is a recipe for enormous delay in a case where there's already been enormous delay," Hafetz said. "He's got a very strong argument and yet they're not going to consider it and they're just going to string this out."
If you get lost in the Khadr legal labryinth, it's understandable.
There are three ongoing legal challenges. Khadr is suing the Canadian government in a civil case for $20 million and in a separate appeal, arguing that Ottawa is illegally holding him in a maximum-security federal penitentiary.
The U.S. appeal seeks to overturn Khadr's conviction, arguing he cannot be guilty of war crimes because in 2002, when he was captured, it was not considered a war crime to kill a soldier in battle. (Khadr pleaded guilty in 2010 to throwing a grenade in Afghanistan that fatally wounded Delta Force soldier Christopher Speer.)
That charge of "murder in violation of the laws of war" was only introduced with the Bush administration's creation of the Military Commission Act following the Sept. 11 attacks.
The U.S. Court of Appeals for the District of Columbia’s three-judge panel cleared Yemeni Salim Hamdan, Osama bin Laden’s former driver and one of Guantanamo’s most famous prisoners, in an October 2012 ruling that stated he could not be convicted of “material support for terrorism,” which was not a war crime at the time Hamdan chauffeured the Al Qaeda leader.
Because of that decision — referred to as Hamdan II — there is a strong argument for Khadr's conviction to also be overturned, although his case is unique because of the plea deal and the difference of charges.
It poised to be a landmark case that goes beyond the fate of Khadr — closely watched by the legal community and the Obama administration, as the start of the Guantanamo trial for the 9/11 accused draws near.
But just when those arguments in the key Khadr case may be heard is another matter.
Michelle Shephard is the Star's National Security correspondent and author of "Decade of Fear: Reporting from Terrorism's Grey Zone" and Guantanamo's Child: The Untold Story of Omar Khadr. She is a three-time recipient of Canada's National Newspaper Award. Follow her on Twitter @shephardm