Omar Khadr, the Canadian “child soldier” who pleaded guilty to hurling a grenade that killed a U.S. soldier in a 2002 firefight in Afghanistan, is appealing his Guantánamo war crimes conviction.
Pentagon lawyers for Khadr, captured in a firefight at age 15, filed the appeal at the U.S. Court of Military Commissions Review on Friday. They argued both that he was abused in U.S. custody and that throwing a grenade in combat or planting land mines are not war crimes because American soldiers do it.
“Even considering the seriousness of his charges, the punishment inflicted on Khadr since his capture would be atypical for adults in the American justice system, let alone juveniles,” his U.S. military and Canadian lawyers wrote in a 44-page brief that invoked episodes of his mistreatment brought up in pretrial hearings.
He was held in isolation, according to the brief, terrorized by barking dogs, threatened with rape, subjected to sleep deprivation, and shackled painfully.
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It added: “The government’s decision to treat Khadr as an adult war criminal, rather than a trafficked child soldier, resulted in unjust and unreasonably punitive conditions of confinement.”
Khadr’s father moved the family from his son’s native Toronto to Afghanistan before the Sept. 11, 2001, attacks that spawned the Guantánamo tribunals.
The teen was captured, near dead, after a July 2002 battle at a suspected al-Qaida compound in which Army Sgt. 1st Class Christopher Speer, 28, was killed by a grenade.
The U.S. said Khadr, now 27, threw it and separately also planted land mines meant to kill U.S. forces. Three years ago Khadr agreed. He pleaded guilty at Guantánamo under a U.S.-Canadian diplomatic deal to serve the majority of an eight-year sentence in his native Canada, where he is now in a federal prison.
The appeal comes days after a former Australian prisoner at Guantánamo, David Hicks, appealed his war crimes conviction on grounds that he was coerced and that his charges of providing material support for terror were not legitimate war crimes.
Now Khadr’s appeal argues that the acts he admitted doing did not constitute internationally recognized war crimes — an argument a U.S. military judge rejected in pretrial hearings.
The brief was signed by Pentagon-paid appellate attorneys, including an Air Force Capt. Justin Swick, who argue that grenades and “command-controlled land mines” are not only allowed “against a lawful military target” but that “U.S. service members routinely use these types of weapons in combat.”
Pentagon prosecutors had argued at various times that Khadr was obliged to surrender and not resist the U.S. invasion in the aftermath of the 9/11 attacks.
Swick said Friday that although Khadr gave up his right to appeal the conviction in his 2010 plea agreement, “there are certain things you cannot waive. Jurisdiction can never be waived. In other words you can never be found guilty of something that is not a crime.”
At the Pentagon, a spokesman said the prosecution had no immediate comment.
“We believe it’s premature to respond,” said Army Lt. Col. Todd Breasseale. “The response to Mr. Khadr’s arguments will come when the government files its brief.”