Monday, October 15, 2007

Guantanamo's First Trial: Omar Khadr

Earlier today, a US military judge in Guantanamo Bay ordered that the trial for Omar Khadr, the Canadian imprisoned in Guantanamo Bay, would resume on November 8.

Khadr is charged with murder, for allegedly throwing a hand grenade that killed US Army Sgt. Christopher Speer.

One thing I have noticed is that most of the news media have not done a good job at analyzing Khadr’s defense and his current legal status. If they did, I think many people would be quite surprised.

So far, the military trials in Guantanamo Bay have been surprising in terms of their transparency. Khadr’s military attorney, Lt. Cmdr Bill Kuebler has evidently been taking his role as Khadr’s lawyer very seriously. He has been very vocal, publicly lashing out at the judicial system setup to try his client and the other defendants, and being a very public advocate of his client’s defense. Kuebler has even traveled to Canada to speak to politicians and the press, to lobby Canadian politicians to "step up" for his client, and drum up support on behalf of his client. It is actually quite remarkable to see a military officer traveling to a foreign country to speak out against his own government. But, if this is the freedom Kuebler is accorded in defending his client, it speaks well for the fairness and transparency of the system he is operating in.

The military judge, Col Peter Brownback, has also shown himself to be a very level-headed judge, unafraid of stirring up controversy with his rulings. Col. Brownback was the same judge who dismissed the case against Khadr, ruling that the government had not determined him to be an “unlawful enemy combatant”, only an “enemy combatant”.

It is obvious from following the trial thus far that the military justice system is not acting as the rubber-stamp Kangaroo court that some members of the Bush administration perhaps hoped it would be. On the contrary, I would argue that Khadr has a better chance of getting a fair trial than he would in a civilian court in the United States itself.

Is Khadr an Enemy Combatant or an Unlawful Enemy Combatant?

Khadr’s defense is technical – nobody disputes the fact that he killed Sgt. Speer. The question is whether or not that killing could be considered murder.

The lynchpin in this case is whether or not Khadr is an “enemy combatant” or an “unlawful enemy combatant”. This is a very important consideration: in a war, soldiers kill each other, that in itself does not make them murderers. So long as the soldiers fight under the “laws of war” (i.e.: the Geneva convention), their actions are not considered murder.

Khadr was in Afghanistan, fighting for the Taliban (the government of Afgahnistan at the time) against a foreign invader. This makes Khadr an enemy combatant, but not an unlawful combatant. In fact, the only thing that has been alleged that makes Khadr an unlawful combatant is the fact he was not wearing a uniform when he was fighting the US Army.

I would expect Khadr’s lawyer to make a very big deal over this element in the case – because if Khadr is not an unlawful enemy combatant, then he is not guilty of murder.

What about a jury of his peers?

In the United States, cases of murder are tried in front of a jury of the defendant’s “peers”. This is fine and dandy, but in the case of Khadr, he really doesn’t have too many peers in the United States. Your typical American cannot relate to Khadr, and so putting together a jury that is not biased against him in some shape or form is unlikely.

Even if you do put together an unbiased jury, the prosecution could influence the jury against Khadr with talk of al-Qaeda, 9/11, showing pictures of Sgt. Speer’s dead body, etc. After the prosecution is done making their case in front of an American jury, the defense would have a real uphill battle.

One benefit to a military trial is that Khadr will be tried in front of a military tribunal – a team of legal experts in uniform, who are not only experts in military law (the Geneva convention, etc.).; they are also soldiers who are unlikely to be swayed by grisly photos, etc. and are thus less likely to allow this type of evidence to distract them from the defendant’s legal arguments.

Given the technical nature of Khadr’s defense (is he an “unlawful enemy combatant” or just an “enemy combatant”), a military tribunal is likely to be more objective.

What about the judge?

The judge in Khadr’s case, Col. Brownback, has demonstrated that he is not afraid to rule in favor of the defendant, no matter what the political impact of his ruling. In June, Brownback delivered a major setback to the government by throwing the case out of court – ruling that his court did not have the authority to try Khadr because Khadr had not been ruled an “unlawful enemy combatant”.

Brownback’s ruling was appealed by the government, but the appeals court did not rule that Khadr was an “enemy combatant” – instead they ruled that Col. Brownback’s court has the legal authority to determine whether Khadr is a legal combatant or not. Then, they sent the case back to Col Brownback.

By my estimation, this does not look good for the government’s case. Col. Brownback obviously takes his role very seriously, and will likely make a very objective assessment of Khadr’s status. Given Brownback’s prior history in the case, I’m sure many people in the government are not happy with having him as the presiding judge for the trial.

Double jeaopardy

One element of US law (from the fifth amendment to the Constitution) is the concept of double-jeopardy: a defendant can only be tried for the same crime once. Once a court rules that the defendant is not guilty, the government’s case is over - they cannot appeal, they cannot refile in another jurisdiction, etc.

In the case of Khadr, the only reason they are able to proceed to trial at this point is because Col. Brownback previously dismissed it on a technicality: ruling he did not have authority to try the case. If the case had actually gone to trial and Khadr had been found not guilty because he was determined as not being an enemy combatant (and therefore his actions were not murder), the government would not be able to refile the case later or appeal the ruling.


The timing of Col. Brownback’s ruling is very beneficial to the defense: they can essentially have their cake and eat it too. They are appealing the whole military tribunal process (that it is unfair, etc.) but at the same time are proceeding to trial while their appeal is ongoing.

If the military tribunal finds Khadr not guilty, the government cannot refile or appeal the case and the defense can just drop their appeal. However, if they find him guilty, the defense can continue to pursue their appeal, and if the appeals court rules that the military tribunal process was invalid, they will get a new trial anyway in a civilian court.


If I were representing Omar Khadr, I would be very happy with the current state of affairs as far as his legal defense. Khadr is likely to have a more fair trial in front of a military tribunal than a civilian court at this point, but even if the military tribunal finds him guilty, he still has a number of appeal routes.