Omar Khadr's trial lacked legal basis

After the way Omar Khadr has been persecuted by both the American government and ours, I wouldn't have thought any more outrageous news of this sordid affair could emerge. But it has. After a hard-fought freedom of information case by the New York Times and the American Civil Liberties Union, a court has ordered the release of a U.S. Department of Justice memo that rejects any legal foundation for Khadr's trial for war crimes.

In order to prosecute Khadr, the U.S. military invented the category of "unprivileged belligerent," i.e. because he wasn't wearing the uniform of a regular army, his actions constituted war crimes. It appears that the CIA became concerned that this legal sleight of hand might turn around and bite them in the ass. They use civilians to pilot drones and they do a lot of killing, so could these civilians be tried for war crimes? The CIA asked the Justice Department and got a decisive answer—no. In a detailed opinion, the Department concluded war criminality depends on a person's actions, not on whether the person is officially part of an army or wears a uniform. This, according to Khadr's Pentagon-based lawyer, "completely blows away one of the major prongs of the government's theory in all these Guantanamo cases."

Of further interest, the Justice Department memo came out several months before Omar accepted a plea. It isn't clear whether the prosecutors knew about the opinion, but if they did, and they didn't reveal it to the court, they were guilty of a serious breach of ethics.

Of particular interest to Canadians is whether or not our government knew. Was it aware that Khadr's conviction had no legal basis when it agreed to take him back? If not, then the Americans misled us about wrongfully incarcerating one of our citizens. If it did know, then its continued imprisonment of this young man is even more egregious than we had thought.

Khadr's story represents one of the sorrier episodes in the war on terror. This horrific abuse of a child soldier by the Americans aided and abetted by our own government has brought shame on both our countries. The least our government can do now is to recognize this legal charade and give Khadr his freedom. Unfortunately, this government is not one to admit error. The outrage will continue.