The US Supreme Court on Monday rejected an appeal by a Canadian-born former Guantanamo Bay detainee who was seeking to wipe away his war crimes convictions, including one for the killing of a US soldier in Afghanistan.
Omar Khadr waived his right to appeal in 2010 when he pleaded guilty to murder charges. Despite a subsequent ruling by the federal appeals court in Washington, DC which called into question whether Khadr could have been charged with the crimes in the first place, a divided three-judge panel ruled that he had given up his right to appeal. Khadr was 15 years old when he was captured by US troops during a firefight at a suspected al-Qaida compound in Afghanistan. Khadr was accused of throwing a grenade that resulted in the death of US Army medic Sergeant First Class Christopher Speer. Khadr was taken to Guantanamo and ultimately charged with war crimes by a military commission. In 2019, a Canadian judge ruled that his war crimes sentence had expired.
Following the alleged firefight in 2002, the US military provided Khadr with medical care and sent him to the US naval base at Guantanamo Bay, Cuba. Four years into Khadr’s detention, the Bush administration enacted the Military Commissions Act of 2006. The law gave military tribunals the power to try “unlawful enemy combatants” for a list of terrorism-related crimes, and it established a new military review court in Washington to hear appeals.
In 2007, charges against Khadr were referred to a military tribunal. Khadr pleaded guilty to all five of the charges against him, including providing material support for terrorism, in front of a military commission at the Guantanamo Naval Base. His guilty plea contained an express waiver of his right to appeal. The commission sentenced Khadr to 40 years in prison. The Obama administration agreed in 2012 to transfer Khadr to Canada to serve the rest of his sentence there. A Canadian court ultimately released him on bail in 2015 and four years later commuted his sentence.
The same year that US authorities transferred Khadr to Canada, however, the US Court of Appeals for the District of Columbia Circuit—the federal court of appeals that presides over the Bush administration’s military review court—issued a ruling on the 2006 law under which Khadr was convicted. In an opinion by then-Judge Brett Kavanaugh, the court held that military commissions lacked the power to try individuals for offenses, such as material support for terrorism, that were not designated as war crimes before the law’s enactment.
While still in prison in Canada, Khadr asked the military review court in Washington to wipe his conviction off the books. He argued that because the acts to which he pled guilty occurred in 2002, his conviction violated the US Constitution’s ban on convicting someone of a crime for conduct that was not against the law when it was committed. The military review court dismissed Khadr’s challenge, finding he had waived his right to appeal when he pleaded guilty over a decade before.
A divided panel of the DC Circuit agreed with that ruling. The majority reasoned that when Khadr pleaded guilty, he signed a general waiver agreeing not to appeal for any reason. The court held that challenging a conviction as invalid under the Constitution is not exempt from this waiver, so Khadr was barred from raising it after the fact.
In Khadr v. United States, Khadr asked the Supreme Court justices to grant review and reverse the DC Circuit’s ruling. He argued that the appeals courts were divided over whether criminal defendants could waive their right to say their conviction was legally invalid by pleading guilty.
Defending against an appeal, US Attorney General Elizabeth Prelogar responded that Khadr admitted that he voluntarily “chose to conspire and agree with various members of [al-Qaida] to train and ultimately conduct operations to kill United States and coalition forces.” The government argument reminded the court that although the petitioner was 15, he was born in Canada as the son of Ahmad Khadr, a former wealthy financier of al-Qaida. Khadr trained and fought in Afghanistan with al-Qaida, and US forces gave the occupants inside the compound multiple chances to surrender during the contested firefight. Concluding, Prelogar said, “the petitioner’s broad and “unambiguous[] waive[r]” of his right to appellate review in exchange for a generous reduction in his sentence and other benefits is enforceable because it was knowing and voluntary.”
Khadr’s counsel argued that the “petitioner was detained as a juvenile, served eight years in pre-trial confinement, served another two years in Guantanamo before being transferred to a maximum-security prison in Canada, and then served six more years in custody until his sentence expired. At that time, courts judged his conduct on supervised release “exemplary.”
Khadr has been released from prison in Canada and can now apply for a passport and potentially visit family abroad. However, the rejected appeal from the US Supreme Court means his war crimes convictions have not been cleared from his record.
