In October 2010, Omar Khadr pleaded guilty to four violations of the Military Commissions Act of 2009.  Khadr, who is presently serving out his sentence in Canada, has now appealed his convictions to the U.S. Court of Military Commission Review (CMCR).  (Steve noted earlier that there does not appear to be a time limit on such appeals.  I do not know whether Khadr did anything to waive, or to fail to preserve, his right to appeal the charges to which he pleaded guilty.  His brief asserts that he “did not submit a waiver of appellate review pursuant to § 950c(b)” and that, in any event, the issues on appeal “go to the commissions’ subject-matter jurisdiction and are therefore not subject to waiver” (citing Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)).)

Khadr’s appeal relies primarily on the Hamdan II decision of the U.S. Court of Appeals, which held that “material support for terrorism” is not an offense under the international law of war, and therefore cannot be the basis for culpability in a military commission based upon conduct that preceded enactment of the Military Commissions Act of 2006.  The reasoning of Hamdan II also affected the “conspiracy” charge in the al Bahlul case.  The latter case is presently pending before the en banc court of appeals.  If the court of appeals were to affirm the panel’s holding in Hamdan II, and were to hold that it applies to pre-2006 conspiracy charges, as well, then presumably two of the four charges to which Khadr pleaded guilty–conspiracy and material support–would be vulnerable to reversal.  [UPDATE:  David Hicks also filed an appeal to the CMCR late last week, arguing that his 2007 plea of guilty to a MST charge likewise must be reversed pursuant to Hamdan II.  Hicks apparently did sign a form waiving his appeal rights at the time of his sentencing, but his brief asserts that “it was never filed after the Convening Authority’s action and is therefore irrelevant as a matter of law.”]

What about the other two charges to which Khadr pleaded guilty?

One of those charges was “murder in violation of the law of war,” 10 U.S.C. 950t(15).  Khadr admitted to using a grenade to kill Sergeant First Class Christopher Speer in a firefight on August 6, 2002.  The prosecution acknowledged that Khadr had not engaged in any conduct that violates the international law of war, such as targeting civilians or “us[ing] either a means or method of warfare prohibited by international humanitarian law.”  The prosecution’s theory was, instead, that Khadr’s killing of Speer was “in violation of the law of war” because Khadr was an unprivileged belligerent when he tossed the grenade.

As I explained a few weeks back, the status of being “unprivileged,” i.e., of not being entitled to the “combatant’s privilege,” means merely that the person (such as Khadr here) may be prosecuted for violation of the relevant state’s domestic law, such as a murder charge for killing someone in battle — a charge that could not be brought against a privileged belligerentBut the international law of war does not prohibit unprivileged killing, as such.

Accordingly, in order to show that Khadr had murdered “in violation of the law of war,” as the MCA requires, the prosecution relied on its “domestic law-of-war” theory:  It noted that “the United States . . . has a long history of punishing hostile acts–including murder–by unprivileged belligerents in time of war,” thereby purportedly establishing an “American common law of war” that is, according to the prosecution, encompassed by the MCA’s reference to murder “in violation of the law of war.”

The Hamdan II court, however, specifically rejected the argument that the MCA’s references to the “law of war” refer to a domestic law of war distinct from the international law of war (see pages 25-27).  If the en banc court of appeals affirms that aspect of Hamdan II, such a holding would appear to undermine the predicate for Khadr’s murder conviction, as well.

Finally, Khadr pleaded guilty to “spying” under 10 U.S.C. 950t(27).  For some reason, when Congress amended the MCA in 2009, it amended the spying provision to require proof that the conduct was “in violation of the law of war”–even though spying traditionally has not been a violation of the law of war, and even though the parallel spying offense under the Uniform Code of Military Justice, 10 U.S.C. 906, does not require proof of a violation of the law of war.

Khadr argues that his efforts to obtain information did not violate the international law of war, and that the government did not offer evidence to the contrary.  The Khadr prosecutors, for their part, did not argue that Khadr’s “spying” violated the international law of war–indeed, they conceded that spying can’t violate that body of law.  Accordingly, they argued, once again, that by using the phrase “in violation of the law of war,” Congress must have intended to refer in part to a domestic body of law under which spying has traditionally been charged in military commissions.

In sum, Khadr’s convictions all appear to be predicated on the government’s argument–later rejected by the court of appeals in Hamdan II–that the MCA references to conduct “in violation of the law of war” refer not only to violations of the international law of war, but also to violations of a so-called U.S., “domestic” law of war.  If the D.C. Circuit does not change its mind about the “domestic” law of war and the MCA in the al Bahlul en banc proceeding, then Khadr would appear to be on strong ground in his appeal to the CMCR, assuming that appeal is not vulnerable on waiver or failure-to-preserve or other procedural grounds.  (Moreover, even if the court of appeals were to hold that the “violation of the law of war” in the MCA does encompass violations of the “domestic” law of war, that would only tee up another substantial question–namely, whether Congress has the constitutional authority to provide for the trial of some or all such domestic law crimes in military commissions rather than in Article III courts.  See my discussion here.)