Lessons From the North: Omar Khadr’s Release on Bail in Canada

UPDATE: The Supreme Court of Canada unanimously ruled on May 14 that the U.S. military commission that convicted Omar Khadr sentenced him as a juvenile and not, as the Canadian government argued, as an adult. In a ruling issued from the bench, the Court rejected the Canadian government’s argument that Khadr’s eight-year sentence for murder and other charges should be considered as a separate penalties, thereby qualifying the sentence as a more severe adult penalty under Canadian law. While the ruling does not affect Khadr’s previous release on bail, it means that if Khadr were ever returned to prison in Canada, it would be to a provincial reformatory, rather than to a federal prison.

Last week, the Alberta Court of Appeal upheld a lower court ruling releasing former Guantánamo detainee, Omar Khadr, on bail pending resolution of his appeal of his US military commission conviction. Khadr, who had previously pleaded guilty to killing a US soldier in Afghanistan, is now challenging his conviction. The Canadian government had opposed his release, citing the risk he posed to the public and harm to its diplomatic relations. (To its credit, the State Department denied any harm to US-Canada relations). While Khadr will still have significant restraints, including electronic monitoring and travel restrictions, he is no longer incarcerated for the first time since American forces arrested him when he was 15. As Court of Appeal Justice Myra Bielby put it, “Mr. Khadr, you’re free to go.” Paradoxically, it was only because he pleaded guilty that Khadr was able to hear those words.

In some respects, Khadr’s case is sui generis. He is one of a handful of Guántanamo detainees convicted of war crimes by a military commission and the only commission defendant serving his sentence in another country. In 2002, the US transferred Khadr to Canada pursuant to an existing US-Canada treaty to serve out the remainder of his eight–year sentence. The Canadian court ruling turned on an interpretation of Canada’s bail statute and the Canadian Charter on Fundamental Freedoms. The ruling does not directly impact any other Guantánamo detainee and could possibly be revisited were US courts ultimately to uphold Khadr’s conviction. (Although, since Khadr has been classified as a minimum security prisoner and has a pending parole hearing, he could still remain free even if his conviction were affirmed on appeal.)

The decision is nonetheless significant for several reasons. First, it highlights the continued skepticism of the US government’s position that it can retroactively prosecute as war crimes offenses that were not recognized as such at the time. The Canadian government expressly conceded that there is a strong likelihood Khadr would prevail on appeal (thus undermining its repeated references to Khadr being a “convicted terrorist”), and the lower court judge acknowledged the strength of Khadr’s appeal in ordering his release on bail. The offenses Khadr pleaded to — material support for terrorism, conspiracy, murder and attempted murder in violation of the law of war, and spying — warrant that conclusion. The D.C. Circuit has already barred prosecuting detainees in military commissions for material support for terrorism for pre-2006 conduct and is presently considering the legality of conspiracy. Murder in violation of the law of war and spying, which will be addressed for the first time in Khadr’s appeal, are similarly vulnerable because of the expansive manner in which they have been applied. I’ve described some problems with the US government’s broad theory of liability here and Steve Vladeck and David Glazier have addressed similar concerns here and here, respectively. That Khadr was a child at the time makes his conviction even more vulnerable. 

Second, Khadr’s release on bail highlights the important role judges can play in protecting liberty by scrutinizing government claims of security in individual cases. US judges had a critical opportunity to engage in this kind of inquiry after the Supreme Court upheld detainees’ constitutional right to habeas corpus in Boumediene v. Bush. In October 2008, district judge Ricardo M. Urbina ordered the conditional release of seventeen Uigher prisoners into the United States under his habeas authority. But the D.C. Circuit blocked the ruling, concluding that judges lacked the authority to order such relief. Congress subsequently prohibited the transfer of Guantánamo detainees to the United States, thus providing an additional barrier to courts’ conducting any conditional release inquiry. The D.C. Circuit later ruled that judges could not consider a Guantánamo detainee’s future dangerousness, even when determining his eligibility for transfer to another country. Were judges not precluded from ordering interim relief to the more than 50 cleared prisoners still at Guantánamo or from examining the future risk posed by non-cleared detainees, the Guantánamo landscape would look radically different today. Last year, Justice Breyer underscored the glaring absence of any duration-of-detention review by courts in his separate statement respecting the denial of certiorari in Hussain v. Obama.

Finally, Khadr’s case underscores the Kafkaesque nature of the commissions, where, at least for some, the surest path to freedom is to be charged with a crime. Had Khadr never been charged — as most Guantánamo detainees have not been — he would almost certainly still be imprisoned at Guantánamo as a law-of-war prisoner under the 2001 Authorization for Use of Military Force. Proponents of military commissions labor to distinguish law-of-war detention (preventive and nonpunitive) and incarceration upon conviction (criminal and punitive). This formal distinction may survive on paper. But it hardly satisfies real-world concerns about the coherence of a system in which many prisoners long for an opportunity to be charged with a war crime so they can plead guilty, be sentenced, and go home.

So while the decision releasing Khadr on bail will not establish any precedent for other Guantánamo detainee cases, it underscores the continued flaws of the military commissions and the absurdities that flow from them. Khadr’s release should cause US officials to pause before pursuing new war crimes prosecutions and deter lawmakers from renewing restrictions on releasing Guantánamo detainees. As Khadr’s case suggests, once subjected to independent review, the facts often fail to support assertions that prisoners pose a future danger. Further, Khadr’s release on bail underscores the important role judges can play in protecting liberty, a role they have largely abdicated in the Guantánamo habeas litigation. 

About the Author(s)

Jonathan Hafetz

Professor of Law at Seton Hall University School of Law Follow him on Twitter (@JonathanHafetz).