Supreme Court Won’t Hear Former Guantanamo Detainee’s Appeal

Omar Khadr and his lawyer Dennis Edney arrive at Mr. Khadr's bail conditions hearing in Edmonton, Alta., on Sept. 11, 2015. Jason Franson/The Canadian Press

The Supreme Court declined on May 20 to take up an appeal by a Canadian former Guantanamo Bay detainee who sought to set aside his convictions for the 2002 murder of a U.S. soldier in Afghanistan and for various crimes he committed when he was 15 years old.

Toronto-born Omar Ahmed Khadr, who is now 37, was appealing a May 2023 ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which would not hear his case because he agreed to waive his right to appellate review when he entered into a plea bargain in 2010 before a U.S. military commission.

Mr. Khadr was arrested in Afghanistan in 2002 in connection with the death of Sgt. Christopher Speer, a U.S. soldier, in a firefight. Mr. Khadr lobbed a hand grenade that killed Sgt. Speer. Mr. Khadr’s father, a senior operative for the al-Qaeda terrorist group, had taken Mr. Khadr to Afghanistan and placed him with bomb makers. The terrorist cell fired upon U.S. troops when they arrived in their compound. Mr. Khadr was shot twice by U.S. troops and seriously wounded.

He was detained at the U.S. military prison inside the Guantanamo Bay Naval Base in Cuba for a decade. He offered his guilty pleas there and was convicted. But Mr. Khadr later tried to retract the pleas, claiming they were made under duress.

In 2007, he was charged with five crimes under a 2006 statute known as the Military Commissions Act. The act was created to support the Global War on Terror that was 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. His guilty pleas were entered when he was 24.

In 2012, the District of Columbia Circuit 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.

Plea Bargain

The plea bargain led to an eight-year sentence and a transfer to a Canadian prison. He finished serving his sentence in 2019. At the same time, he continued seeking dismissal of his convictions.

Despite having signed the appeal waiver, Mr. Khadr pursued an appeal with the District of Columbia Circuit. He argued that his convictions, based as they were on things he did in 2002, before the statute was enacted, ran afoul of the U.S. Constitution’s ex post facto clause, which forbids the retroactive criminalization of actions that were lawful when they were carried out.

The circuit court held that the appeal could not proceed because Mr. Khadr had previously agreed to waive appeals.

The Supreme Court denied the petition for certiorari, or review, in Khadr v. United States, in an unsigned order. No justices dissented. The court did not explain its decision. Under current practice, at least four of the justices must vote to approve the petition for it to move forward to the oral argument stage.

Only seven of the nine justices apparently participated in the consideration and decision of the case. Justices Brett Kavanaugh and Ketanji Brown Jackson both recused themselves.

In the petition, Mr. Khadr argued that because none of the offenses with which he was charged “constituted a war crime” before the Military Commissions Act came into being, the prosecution violated the Constitution’s ex post facto provisions.

“A valid guilty plea requires more than an agreement. It requires a crime. Plea agreements based upon non-criminal conduct cannot serve as a proper basis for convicting or sentencing individuals,” the petition states.

The federal courts of appeal disagree on whether an appeal waiver bars “criminal defendants from bringing otherwise timely direct appeals to assert that there is no legal basis for their conviction,” it says.

“The existing split between circuits on the question presented here guarantees the discriminatory application of this Court’s decisions from one courthouse to the next,” the petition reads.

Officials Argue Against Khadr

On April 10, U.S. Solicitor General Elizabeth Prelogar filed a brief urging the Supreme Court not to take up the appeal.

Mr. Khadr admitted that he voluntarily “chose to conspire and agree with various members of al Qaeda to train and ultimately conduct operations to kill United States and coalition forces,” Ms. Prelogar’s brief said.

In July 2002, Mr. Khadr joined a cell in Afghanistan consisting of terrorists affiliated with al-Qaeda and the Libyan Islamic Fighting Group. He participated in the cell’s building and deployment of improvised explosive devices (IEDs) to kill U.S. and coalition forces. He acknowledged the goal was to kill “as many [Americans] as possible,” according to the brief.

One of his responsibilities in the cell was to spy on U.S. forces to determine where best to locate IEDs to cause maximum death and destruction, the brief says.

After the four-hour firefight at a compound between cell members and U.S. forces, the military gave the other side several opportunities to surrender. Women and children were allowed to exit the facility, and the military escorted them to safety.

But Mr. Khadr and the remaining cell members “made a pact that they would rather die fighting than be captured by U.S. forces,” and they took up a fighting position within the compound, after which the U.S. soldier was killed, the brief said.

The legal issues are straightforward, according to Ms. Prelogar.

Mr. Khadr signed a plea agreement in which “he expressly waived ... his right” to further review by the District of Columbia Circuit and the Supreme Court, and the next day, he was sentenced to 40 years of confinement.

“At the sentencing hearing, the military judge reviewed with [Mr. Khadr] the terms of his appeal waiver and confirmed in a colloquy that the waiver was both knowing and voluntary,” the brief says.

Consistent with the plea agreement, the convening authority approved only eight years of the 40-year sentence pronounced by the military commission.

The Supreme Court should not grant the petition because the circuit court’s decision was “correct and does not conflict with any decision of this Court or another court of appeals,” Ms. Prelogar argued.

The case is an unsuitable vehicle for review because “the military-commission context of this case involving a foreign belligerent detained outside of the United States is highly atypical,” she said.

Moreover, the circuit court lacks statutory jurisdiction to hear the case, and Mr. Khadr “waited to seek review until after he had obtained all the benefits of his plea agreement and is now in Canada beyond the United States’ power to confine him for his offenses,” the brief says.

Apart from the legal proceedings in the United States, allegations were made in his home country that Canadian intelligence officials extracted evidence from Mr. Khadr using heavy-handed tactics.

The Supreme Court of Canada ruled in 2010 that his human rights were violated when Canadian intelligence officials participated in the interrogation process at Guantanamo Bay. Among the out-of-bounds tactics identified was sleep deprivation. These allegations were not part of the current appeal before the U.S. Supreme Court.

The Supreme Court of Canada issued a declaration saying that Mr. Khadr’s rights under the Canadian Charter of Rights and Freedoms had been violated.

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 for violating his rights, but the financial settlement he received reportedly totaled 10.5 million Canadian dollars.