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Khadr case complexity deepens

The case of the young Canadian facing war crimes charges at Guantanamo Bay has turned into a four-sided, deeply complex dispute that seems at least months away from any clear outcome.  And, beyond the present array of proceedings, it may also wind up in the Supreme Court.

Even as the war crimes case against Omar Ahmed Khadr inches forward before a military judge at Guantanamo, his legal fate rests in part in the hands of the D.C. Circuit Court (in two separate cases, one already advancing, the other slowing down) and in Canada’s Supreme Court.  Some members of Canada’s Parliament also are pressing the government there to intervene.

Even Khadr’s own defense lawyers are now predicting that — unless civilian authorities take a more active role — he is likely to be tried, convicted of war crimes and given a long military prison sentence for his role in an incident in Afghanistan when Khadr was 15 years old that resulted in the death of a U.S. serviceman.  The defense team contends that the commission system is so flawed that convictions are foreordained — a point that Pentagon officials rigorously contest.

His lawyers have made a wide array of challenges to his impeding trial before a military commission, but so far have not succeeded on one of the most significant of those objections: his claim that, as a “child soldier” forced into service when he was too young to object, he cannot be tried by a military commission.

That argument failed most recently when the Army officer who heads the commission preparing to trial Khadr — Col. Peter E. Brownback III — on April 30 rejected the “child soldier” challenge.  The judge ruled that the U.S. law creating military commissions set no age limit, that a U.S. law limiting court trials of juveniles does not apply to military commissions, and that internatiional law and U.S. treaty obligations do not bar his trial.

Judge Brownback’s ruling can be found here. (This is a large file, including the judge’s seven-page opinion plus the defense lawyers’ motion, the government’s response, amici filings, and other exhibits. This entire file, the judge indicated, will be part of the record that goes to the U.S. Court of Military Commission Review in case Khadr pursues an appeal.)

The judge, continuing to hear other pre-trial disputes in Khadr’s case, has said that the young man’s defense lawyers may try to use his youthful age at the time of the incident as a defense at his commission trial.

The D.C. Circuit, meanwhile, has declined to rule quickly on the same “child soldier” challenge, raised as part of the Khadr defense team’s challenge to a Pentagon panel’s rulng that he is an “enemy combatant” — the basis for keeping him at Guantanamo.   His lawyers sought “judgment as a matter of law” on the “child soldier” issue, but the Circuit Court, in an order on April 21, scheduled full briefing on that issue and said it would hold a hearing this fall, in September.  (The Circuit Court order can be found here.)  That schedule could mean that Khadr’s trial could be in progress, and perhaps even concluded, by the time the Circuit Court ruled.  (That case is Khadr v. Gates, Circuit docket 07-1156.)

The Circuit Court held a hearing April 15 on another Khadr appeal, challenging the authority of the military commission to try Khadr or any other individual found to be an “enemy combatant” by a Pentagon panel (a “Combatant Status Review Tribunal”) because of alleged jurisdictional flaws.  That claim failed in the Court of Military Commission Review, but its decision is under review by the Circuit Court in Khadr v. U.S., 07-1405).  The government has contended in that case that the Circuit Court — and, by implication, the Supreme Court — cannot review any military commission case until after there is an actual conviction and sentence.  (A post on this blog discussing that case and the April 15 hearing can be read here.)

The Canadian Supreme Court held a hearing in late March on an attempt by Khadr’s lawyers to get access to documents held by the Canadian government that are said to describe dealings between U.S. and Canadian intelligence officials over interviews with Khadr after his capture. The Khadr defense teams wants those documents both to use in defending him at the U.S. miltary commission trial, but also to buttress their claim that Canadian officials violated his rights under that country’s civil rights charter.

Meanwhile, the government of Prime Minister Stephen Harper has resisted efforts to demand that U.S. officials return Khadr to Canada.  A committee of Parliament, however, late last month began hearings on Khadr’s situation.

The U.S. Supreme Court may be drawn into Khadr’s case after any one of the proceedings now unfolding in the U.S. military or civilian court.  But many of those proceedings also could be affected by the Justices’ coming decision on the legal rights of detainees (in Boumediene v. Bush, 06-1195, and Al Odah v. U.S.), and its action on a pending government appeal on the nature of civilian court review of military detention decisions (in Gates v. Bismullah, 07-1054 — a case that is on hold pending the Boumediene/Al Odah ruling.