If you have the time to watch a 46-minute video about Omar Khadr, the Canadian citizen and former child prisoner held at Guantánamo for 11 years, then I heartily recommend the recording of a recent talk in Canada by Sam Morison, a civilian lawyer working for the US Department of Defense, who recently submitted an appeal against Khadr’s 2010 conviction in his trial by military commission, as I explained in an article two weeks ago entitled, “‘He Didn’t Commit a War Crime': Omar Khadr’s US Lawyer Challenges His Conviction at Guantánamo.”
The video of the talk, which took place at The King’s University College in Edmonton, was posted on the website of the Free Omar Khadr campaign, and is posted below, via YouTube. It was organized by the University of Alberta’s Chester Ronning Centre for the Study of Religion and Public Life and the Micah Centre at The King’s University College, and a previous talk (also posted below) featured Retired Brig. Gen. Stephen Xenakis, MD, a psychiatrist who spent hundreds of hours with Omar Khadr at Guantánamo. Both events took place under the heading “Omar Khadr: The Man – The Law.”
Morison, who “has practiced law for more than 20 years and is a nationally recognized expert on federal executive clemency and the restoration of civil rights,” as his website describes him, delivered a compelling explanation for why Khadr is not guilty of war crimes, when the appeal was submitted. Khadr accepted a plea deal in October 2010, pleading guilty to five crimes, including killing a US soldier by throwing a grenade during the firefight in Afghanistan in July 2002 that led to his capture, but there is no evidence that he actually threw the grenade, and he only accepted the plea deal as a way to leave Guantánamo, receiving an eight-year sentence in exchange.
As I explained two weeks ago when Khadr’s appeal was submitted:
Sam Morison … told Colin Perkel [of The Canadian Press] that, in challenging Khadr’s conviction on all five counts, “the main argument turns on whether what Khadr is accused of doing as a 15 year old in Afghanistan was in fact a war crime under American or international law.”
Morison said, “These things weren’t crimes, at least in 2002. They weren’t crimes at the time of the charged conduct. Even if you take the government’s allegations at face value, he still didn’t commit a war crime.”
As Perkel explained, “The basis for charging [Khadr] for the battlefield death was that he was not in uniform, and was therefore an ‘unprivileged combatant,’” but Morison pointed out, as Perkel put it, that “there is no authority under international law to elevate what Khadr did to the status of a war-crime, which includes such egregious acts as deliberately targeting and killing civilians as the 9/11 terrorists did.”
As Morison described it, “Merely being an unlawful combatant is not by itself a war crime. War crimes still have to be war crimes. It has to do with what you do.” And on this basis, of course, even if Khadr had thrown the grenade that killed US Special Forces Sgt. Christopher Speer, who died in the firefight, it was not a war crime.
This was noted by Paul Koring in an article for the Globe and Mail, in which he stated that Khadr’s legal team “will argue that even if he tossed the grenade that killed a US special forces soldier, it wasn’t murder and his other activities weren’t war crimes.” Koring cited Morison as saying, “He is, in fact, an innocent person because he never committed a crime.”
In his talk in Edmonton, Sam Morison delivered an even more compelling explanation of why Omar is not guilty of war crimes, why his trial was a sham, and why what the US government is doing is rewriting, in a truly alarming manner, the laws of war, so that anyone who allegedly raises arms against the US — even on a battlefield in an occupied country — can be caught and convicted as a war criminal.
After the war crimes convictions against two other prisoners — Salim Hamdan and Ali Hamza al-Bahlul — were thrown out by the conservative court of appeals in Washington D.C. last October and in January this year, because the judges correctly concluded that the war crimes for which they had been convicted had been invented by Congress, other legal challenges were to be expected. David Hicks, the first to accept a plea deal, in March 2007, recently launched an appeal, and Omar Khadr’s followed shortly after.
I believe that Sam Morison is absolutely correct to call for Khadr’s conviction to be overturned, although it is clear that, just as dark forces are arrayed against him in Canada, in the form of the Canadian government, which continues to treat him shamefully, so there are dark forces that continue to support his unjust treatment in the US.
As Paul Koring explained in the Globe and Mail last Friday, the United States Court of Military Commission Review “has demanded his legal team establish that it should even hear the case.” Koring added, “While the right of others convicted at Guantánamo to appeal have been routinely accepted by the Court” — including David Hicks’s recent appeal – the same court “has turned Mr. Khadr’s case into a two-step process that could add months, perhaps years, of delay.”
Koring further explained that the court “has ordered the issue of whether Mr. Khadr’s appeal should be heard first and decided separately from the underlying merits of whether Mr. Khadr was wrongfully convicted for acts that weren’t war crimes under international or US law.”
Dennis Edney, Khadr’s long-term civilian lawyer in Canada, responded to the news by calling the commission system “a fundamentally corrupt system that is not good enough for an American citizen but good enough for a Canadian.” He added that it was not a “judicial process but a politically cynical process constituted to shield itself from public scrutiny,” and also stated, “Our government knows this and should have the courage to challenge this process for all Canadians.”
In Washington D.C., Sam Morison and the rest of Khadr’s US legal team have challenged the Court of Military Commission Review’s order, stating in a motion that “the requirement to litigate the issue of jurisdiction” before the substance of Mr. Khadr’s appeal “needless bifurcates the case to [Mr. Khadr’s] obvious disadvantage.”
Koring explained that, if the court rules that it is unable to hear Khadr’s appeal, “that ruling would in turn be appealed, meaning it might take years before there is a determination over jurisdiction, and without any consideration of the merits of the case.” As Sam Morison noted in his challenge to the court’s ruling, “The practical effect of the Court’s order is thus to indefinitely position meaningful judicial review, thereby ensuring that [Mr. Khadr] will remain in prison unless and until his full term expires.”
The court’s position is unacceptable, as the filing on Khadr’s behalf explained. As Paul Koring described it, Sam Morison “raised the vexed issue of legitimacy that continues to cast a pall over the entire Guantánamo process.” In the filing, he stated, “Rather than expediting these proceedings, the court … unnecessarily protracts the resolution of this case, transparently tips the tactical scale in the government’s favour and thus case a pall of illegitimacy over any decision.”
The motion also stated, “If the government cannot defend the charges it brought against the appellant today, then there is no good reason to believe that it will articulate a winning argument years from now.”
Morison also argued that the wording of the direction “creates an appearance that the court has prejudged the outcome of this appeal.”
Speaking to Colin Perkel of The Canadian Press, Morison said, “It’s terribly unfair to Khadr. The court’s supposed to be neutral. That’s what’s most troubling.”
It is difficult to argue with Sam Morison’s conclusions, although, unfortunately, this kind of lawlessness is familiar to all of us who have been watching the moral, ethical and legal abuse of Omar Khadr for the last eleven years.
See below for the video of Stephen Xenakis’s talk at the University of Alberta on October 22:
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
On Facebook, Pauline Kiernan wrote:
Jehan Hakim wrote:
I really hope this Dr doesn’t end up hurt or even worse somewhere..
May the truth be revealed!
If you’re talking about Dr. Stephen Xenakis, Jehan, he’s a retired Brigadier General in the US Army, one of many critics of Guantanamo and the “war on terror” from the military. Several retired generals and admirals signed the mission statement of the “Close Guantanamo” campaign when Tom Wilner and I launched it two years ago, and Stephen is one of dozens of retired generals and admirals who regularly support Human Rights First’s campaigning on Guantanamo. I think he’s in good company!
Close Guantanamo mission statement here: http://www.closeguantanamo.org/Our-Mission
And the latest statement from the generals and admirals is here: http://www.humanrightsfirst.org/uploads/pdfs/NDAA-guantanamo-letter-2014.pdf
Mark Erickson wrote:
Shared. Take care Andy.
Thanks, Mark. Great to hear from you! Hope all is well with you – personally, that is. Politically, of course, only someone profoundly delusional would think all is well!
Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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