Khadr's war crimes appeal could hinge on bin Laden propagandist's case

As the wrongful death case against Omar Khadr winds its way through the Ontario courts, his legal battle in the U.S. to quash his war crime convictions remains on hold, pending the outcome of a case involving a former personal assistant to Osama bin Laden.

Khadr's U.S.-based lawyer Samuel Morison said Khadr and the U.S. Court of Military Commission Review are waiting to see what happens with the case of Ali Hamza al-Bahlul and whether that will be taken up by the U.S. Supreme Court — a decision that may not be made until the fall.

"Al-Bahlul's case will potentially make Khadr's case simple," said Morison. "If al-Bahlul wins, then these commissions will be limited to war crimes, what everybody knows are war crimes."

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And a win for al-Bahlul in the Supreme Court means "they're going to have to concede that Khadr's convictions have to be reversed because he didn't commit any war crimes," Morison said.

In 2006, then president George W. Bush signed into law the Military Commissions Act, a legal forum to try those deemed as "unlawful enemy combatants" for  "violations of the law of war."

But critics of the commissions said these tribunals just made it easier for the government to secure convictions, that they allowed the government to introduce evidence that would be inadmissable in civilian courts, and that defendants would now be tried for offences that had not previously been considered war crimes.

In 2010, Khadr pleaded guilty at a military commission to five war crimes: murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy; providing material support for terrorism and spying. 

Khadr has since recanted those confessions, saying they were made in order to get out of Guantanamo Bay and serve the rest of his sentence in Canada.

Despite his confession to those crimes, Khadr is appealing those convictions in the military commission court.

Yet ​Morison argues, in part, that those convictions should be thrown out because those five offences should never have been considered war crimes. He also says military commissions have only concerned themselves with crimes that were violations of international laws of war.

Al-Bahlul's case is significant as it deals with the same issues as Khadr's in terms of the limits and jurisdiction of a military commission, Morison said.

An accused al-Qaeda recruiter

Al-Bahlul is accused of being an al-Qaeda recruiter who did media relations, made videos for bin Laden and, as described by the U.S. Court of Appeals for the District of Columbia Circuit, "assisted with preparations for the attacks of Sept. 11, 2001."

He was convicted by a military commission of solicitation of others to commit war crimes, conspiracy, and providing material support for terrorism and sentenced to life imprisonment at Guantanamo Bay.

In 2014, the appeals court threw out two of those convictions — solicitation and providing material support — ruling that those convictions were unconstitutional, as those crimes were created by Congress only after al-Bahlul had been arrested.

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Meanwhile, al-Bahlul's conspiracy charge, and whether it should be considered a war crime, has been the subject of different rulings by the appeals court, with the most recent decision upholding his conviction.

'Resolution one way or another'

In any event, the Supreme Court is being asked to take al-Bahlul's case. And if the top court decides to hear it, says Morison, "we'll get a resolution one way or another."

The Canadian-born Khadr was 15 when he was captured by U.S. troops in July 2002 following a firefight at a suspected al-Qaeda compound in Afghanistan that resulted in the death of Sgt. 1st Class Christopher Speer and the wounding of Sgt. Layne Morris.

After 10 years, mostly in Guantanamo, Khadr signed an agreement that would allow him to return to Canada in 2012 to serve the remainder of his sentence. He pleaded guilty to those five war-crime charges and received an eight-year sentence from the U.S. military commission.

I'm saying, accepting as true everything he pled to, they don't amount to war crimes.— Samuel Morison, Khadr's U.S.lawyer

Morison said even though the facts of Khadr's case are contestable, his arguments don't depend on challenging them. 

"I'm saying, accepting as true everything he pled to, they don't amount to war crimes."

The murder charge for example, is the clearest case of this, he said. If Khadr did, as the government contends, throw a hand grenade that resulted in the death of Speer, "there's absolutely nothing illegal about that under the law of war," Morison said. 

In 2015, a Utah court awarded Speer's widow and Morris $134 million US in their wrongful injury and death suit against Khadr. They have since filed an application in Ontario Superior Court to have that judgment recognized and enforced.

Last week, an Ontario Superior Court judge rejected their bid to freeze Khadr's assets. The decision came a week after it was announced that Khadr had received an apology and financial settlement from the Canadian government that reportedly totals $10.5 million.

'Doesn't mean they know the facts'

The deal has drawn sharp criticism among those who believe Khadr is a terrorist and does not deserve compensation.

But Morison said Khadr has been subject to a "relentless, negative PR campaign" by the former Conservative government.

"So it doesn't surprise me that people might have a negative impression of him," Morison said. "But that doesn't mean they know the facts of the case and that doesn't meant they know the law."

"He certainly didn't ask to be mistreated the way he was. The apology and the settlement are really separate from the underlying alleged events. They have to deal with what happened to him after that. And that's not OK no matter what he did."