I hope they go the route of a habeus corpus application. It might take a while to put all the pieces the lawyers need together, but I figure they've been building this case for years, no?
Yes, I have no doubt they have the material as there were previous habeas
applications in the US so much of that material would be applicable.
There are two ways to proceed to set aside the plea agreement and convictions and they are not mutually exclusive.
The first is to focus upon the treatment of Khadr in custody - "enhanced interrogation techniques", etc. (possibly rising to torture) so that any statements made would be considered coerced and as they formed the basis for the convictions, the argument would be the plea agreement cannot stand. Also Khadr was held for years without access to counsel, access to consular assistance (guaranteed under the Vienna Convention) and held for years without formal charges being filed. This would be essence an attack upon procedures alleging a lack of fundamental justice or what the Americans call due process.
This last issue ties into the second means of attack - the crimes themselves are not valid. This is a substantive claim. Why was Khadr not charged for years? Well because the crimes of which he was convicted did not exist at the time of the firefight and his capture - it was some four years later that the US began to pass laws and the first two attempts were found unlawful. It was not until 2009 that the process under which Khadr was actually prosecuted was put in place. And it was in the 2009 Military Commission Act that set out any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. The result is a very bizarre construct of Rules of Engagement in Afghanistan - US forces can target anyone they wish and if persons attempt to defend themselves they have committed a crime as defined by the US Congress - regardless of whether the US military force had any grounds whatsoever to launch an attack. Or as law professor David Glazier (see below) puts it:
The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LOAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.
I am sure you can see the problem with making something a crime ex post facto
. And it has been contended that the crimes are not in accordance with international law.
Jason Ralph who is a professor in international relations at the University of Leeds and an expert in the fields of international law, American foreign policy, human rights and the war on terror writes:
The charges against Khadr reflect US attempts to rewrite international law – and the implications for the laws of war are potentially profound.http://www.guardian....da-canada/print
The issue here is that "murder in violation of the laws of war" – the charge laid against Khadr – is not recognised internationally as a war crime. Following the Bush administration's lead, the US Congress insisted in the 2009 Military Commission Act that any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. But "unprivileged belligerent" is not a category of combatant defined in the laws of war.
Under the Geneva conventions, violent individuals are either combatants or civilians. As an enemy combatant, one would have expected Khadr (age aside) to be targeting US soldiers. The only way the US government could have prosecuted him under the laws of war, therefore, was to charge him with killing while disguised as a civilian or with "perfidy". (My note neither of which apply to Khadr - Perfidy is set out Art 37. Prohibition of Perfidy in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 - http://www.icrc.org/...125641e0052b079
As the defence counsel argued in the similar case of Mohammed Jawad, however, al-Qaida fighters do not have uniforms to give up, so their civilian appearance was not a disguise. They were, therefore, in the eyes of the laws of war, civilians. As a non-combatant throwing a grenade, Khadr could certainly have been prosecuted for murder – but not under the laws of war and not in a military commission. He should have been due a trial in the civilian courts of Afghanistan, the US or Canada, where the rules of evidence would have been very different.
The implication of finding a civilian guilty of murder in violation of the laws of war is significant. It is another instance where the US has "militarised" civilian crimes. Other detainees, for instance, have been found guilty by military commission for providing material support for terrorism, and rights groups continue to fear that the US interpretation of "enemy combatant" is now so broad that a proverbial "little old lady in Switzerland" giving to a charity with armed Islamist connections could be tried in a military commission.
Above all, the Khadr ruling is a case where the US has pursued its own definition of the laws of war. "Murder in violation of the laws of war" was codified by the US Congress alone, and many experts consider it a rank misinterpretation of international law. If other states adopt the American example, then we may look back at the Khadr trial as the moment when a new form of war crime was created, unilaterally and for the expediency of the world's pre-eminent military power.
Professor David W. Glazier of the Loyola Law School in Los Angeles takes this issue even further and contends that none of the charges are valid and that in fact the only possible war crime here has been committed by the US in subjecting Khadr to the Military Commission Tribunal system. In his extensive paper A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr
– Professor Glazier says:
This analysis, extracted from a larger work in progress examining the overall legal issues with the Obama administration’s military commissions, focuses on the validity of the charges levied against twenty-three year-old Canadian citizen Omar Khadr. Although most public criticism has been directed at procedural shortcomings, the commissions’ substantive law issues are more significant. Even if Khadr did everything alleged, none of the five charges as actually lodged describes a criminal violation of the law of armed conflict (LOAC). Two of the charges, conspiracy and providing material support to terrorism, are inherently problematic. The remaining offenses, murder and attempted murder “in violation of the law of war,” and spying, are capable of valid application, but lack legitimacy in Khadr’s factual situation. Essentially the government seeks to distort the fundamental legal equality between opposing belligerents into a unilateral shield for coalition personnel, turning the conflict into a “hunting season” in which U.S. forces can shoot their enemy on sight but their adversaries commit a war crime by fighting back. Because the tribunals’ statutory bases, the Military Commission Acts of 2006 and 2009, were enacted after Khadr was in custody, any charges lacking sound grounding in the LOAC constitute impermissible ex post facto enactments. These charges fail that test and the commission thus lacks jurisdiction. Khadr can only be validly tried in a U.S. or Afghan domestic law court.http://papers.ssrn.c...ract_id=1669946
As Professor Glazier concludes after an exhaustive review of domestic US law and international law including the law of armed conflict (LOAC):
There has been substantial criticism of the Guantánamo military commissions on the basis of their procedural shortcomings ever since President Bush first announced his intention to employ them in November 2001. The commission procedures mandated by the MCA are a substantial improvement over those envisioned in the immediate aftermath of 9/11 although the initial sessions of Khadr‘s trial show that there is still substantial residual room for criticism as the rules are actually being applied. But far too little attention has been paid to the larger substantive issue of the legal validity of the basic charges. Without valid subject matter jurisdiction over the defendant‘s alleged conduct, any trial is a legal nullity, and the procedure thus wholly irrelevant.
The Guantánamo trials must be legally grounded in the LOAC or else they constitute an impermissible ex post facto application of law enacted well after the defendants were in custody. Yet despite the fact that he faces five separate charges, the specifications lodged against Canadian defendant Omar Khadr either fail to state a recognized violation of the law of war, or where the offense is facially valid, the specific conduct charged does not meet the law‘s definition of the crime. The perverse irony is that the only war crime present in Khadr‘s Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant. And while the analysis in this article has focused on the specific application of these rules to Khadr, it is important to note that the problematic charges of conspiracy and providing material support to terrorism are the only offenses involved in three of the four trials completed to date, suggesting the real possibility of reversal when any of these cases finally get to the civilian appellate review process.
This analysis is not intended to excuse Khadr‘s actions. Although there is some reason to question the validity of prosecuting conduct committed by a 15 year-old under the modern LOAC, this article takes no position on that issue, nor is it necessary to address it, since Khadr‘s prosecution does not comport with the law of war regardless of his age. If the government thinks it is appropriate to prosecute this defendant for his acts in association with al Qaeda, it is free to do so under any applicable provisions of either U.S. or Afghan domestic law, following whatever rules those codes and international human rights law provide for dealing with youthful offenders.
And file this under the heading of ultimate irony or "what is sauce for the goose is (or should be) sauce for the gander" - as Professor Glazier points out if this militarization of what would normally be a civilian crime is correct then this is the logical result:
If the military commission prosecution team was correct that participation in hostilities by a non-uniformed civilian constituted a war crime, then it would be declaring all those participating in, supervising, and having authorized, the CIA‘s drone program to be war criminals, including logically both the immediate past and current commanders-in-chief. This criminalization would also extend to the use of CIA paramilitary personnel, to U.S. special forces troops fighting in civilian clothes, as well as logically to U.S. support for third country ―unprivileged belligerents, such as the original Afghan mujahidin who opposed the Soviet invasion. Incredibly, testimony at Khadr‘s aborted first trial sessions indicated that an armed CIA officer in civilian clothes—an unprivileged belligerent—was among the Americans participants at the firefight in which Speer was fatally wounded. While the allies have been accused of applying a one-sided ―victor‘s justice to captured Axis personnel in World War II era war crimes, the author knows of no instance in which the enemy was punished for conduct which the allies had also engaged in during the precise events in question.
There seems to be wealth of material for Khadr's legal counsel should they choose to try to set aside the plea agreement and convictions.