The U.S. Supreme Court declined on July 22 to rehear an appeal by a Canadian former Guantanamo Bay detainee who asked to set aside his convictions for the murder of a U.S. soldier in Afghanistan and related crimes he committed when he was 15 years old.
The decision not to revisit the case of the petitioner, Toronto-born Omar Ahmed Khadr, 37, came after the court denied his petition for certiorari, or review, on May 20 regarding a ruling by the U.S. Court of Appeals for the District of Columbia Circuit.
The case goes back to 2002 when Mr. Khadr was arrested in Afghanistan in connection with the death of Sgt. Christopher Speer, a U.S. soldier, in a firefight. Mr. Khadr threw a hand grenade that killed Sgt. Speer. Mr. Khadr’s father, a senior operative for the al-Qaeda terrorist group, had taken his son to Afghanistan and left him with bomb makers. The terrorist cell fired upon U.S. troops when they arrived in their compound.
He was detained at the U.S. military prison at Guantanamo Bay Naval Base in Cuba for a decade.
In 2007, he was charged with five crimes under the Military Commissions Act of 2006, which was created to support the Global War on Terror declared following the terrorist attacks of Sept. 11, 2001. Among the crimes Mr. Khadr was charged with were murder in violation of the law of war, attempted murder in violation of the law of war, and providing material support for terrorism.
He entered a plea bargain in 2010 that led to an eight-year sentence and a transfer to a Canadian prison.
In 2012, the caselaw governing war-related prosecutions changed when the D.C. Circuit Court ruled in a different case that defendants could not be charged under the Military Commissions Act with crimes that took place before the statute was enacted.
Despite that decision, the D.C. Circuit determined in May 2023 that it could not hear his case because he agreed to waive his right to appellate review when he signed the plea agreement in 2010 before a U.S. military commission.
The Supreme Court’s unsigned order two months ago denied the petition in Khadr v. United States without comment. No justices dissented. Justices Brett Kavanaugh and Ketanji Brown Jackson recused themselves because they participated in the case when they served as judges on the D.C. Circuit Court.
In terms of the outcome of a case, a recusal by a Supreme Court justice is “effectively the same as casting a vote against the petitioner,” the document states, quoting a lower court ruling from 2004.
Recusal in the circumstances was optional, not mandatory, and was waived by Mr. Khadr, the document adds.
“[B]arring a compelling basis for disqualification, Justices are under an obligation to hear and decide a case to ensure the integrity of the judicial system.”
Moreover, rehearing the case with all nine justices participating is “justified to allow this Court to give full consideration to the fundamental question presented by [the] Petitioner’s case.”
The two justices’ involvement in the case when it was before the D.C. Circuit did not have “any bearing on the core issue presented by the Petition [for certiorari],” the document states.
That issue was whether the plea agreement he entered prevented him from later filing an appeal in the case.
The Epoch Times reached out for comment to Mr. Khadr’s attorney, Juan Perla of Curtis, Mallet-Prevost, Colt, and Mosle in Washington, and the U.S. Department of Justice, but no replies had been received by the time of publication.
Mr. Khadr was also involved in legal proceedings in Canada.
The Supreme Court of Canada ruled in 2010 that his human rights were violated when Canadian intelligence officials helped to interrogate him at Guantanamo Bay. Among the out-of-bounds tactics identified was sleep deprivation. These allegations were not part of the recent appeal before the U.S. Supreme Court.
The Canadian government announced in July 2017 that it had reached a civil settlement in the case and formally apologized to Mr. Khadr. The details of the settlement were confidential.
Mr. Khadr had sued Canadian officials for 20 million Canadian dollars ($14.5 million) for violating his rights, but the financial settlement he received reportedly totaled 10.5 million Canadian dollars ($7.6 million).
