The justices declined to hear an appeal by Omar Khadr, now age 37, of a lower court’s refusal to hear his case on the grounds that he had waived his right to appellate review as part of a 2010 plea agreement before a US military commission.
Khadr, who was one of the youngest prisoners held at the detention facility at the US naval base in Cuba, pleaded guilty in exchange for an eight-year sentence and transfer to a Canadian prison. Khadr was granted bail in 2015 and completed his sentence in 2019 as he continued to pursue the dismissal of his US convictions.
He was taken to Afghanistan by his father, a senior al-Qaeda member who apprenticed his son to a group of bomb makers who opened fire when US troops came to their compound in 2002. During the firefight, Khadr, 15, threw a hand grenade that killed Sergeant Christopher Speer, a US Army medic. Khadr was gravely wounded – shot twice – when he was captured by US forces.
In 2007, Khadr was charged under a 2006 US law called the Military Commissions Act with five crimes including murder and attempted murder in violation of the law of war, and providing material support to terrorism. He was 24 when he pleaded guilty.
In 2012, a federal appeals court in a separate Guantanamo Bay detainee’s case issued a decision with potential implications for Khadr. The US Court of Appeals for the District of Columbia Circuit ruled that defendants could not be charged under the Military Commissions Act for certain crimes that occurred prior to the law’s adoption in 2006.
Despite having agreed to waive his right to appellate review, Khadr appealed to the DC Circuit. Attorneys for Khadr argued that his convictions, which were based on actions he took in 2002 before Congress passed the statute, violated the US Constitution’s ban on criminalising conduct after it has occurred.
The DC Circuit rejected Khadr’s appeal because of his waiver of appellate review.
At issue in Khadr’s petition to the Supreme Court was whether he was bound by his agreement to waive his right to appeal, not whether his convictions should be immediately vacated.
Khadr’s attorneys told the Supreme Court that although Khadr had agreed to waive his right to appeal, he had not actually filed the paperwork to finalize the waiver when the DC Circuit issued its ruling establishing a new legal standard favourable to Khadr’s case.
President Joe Biden’s administration had urged the justices to turn away Khadr’s appeal.
Khadr’s plea deal came in a case that made the US the first nation since World War Two to prosecute a defendant in a war crimes tribunal for acts allegedly committed as a juvenile. Khadr’s lawyers had argued unsuccessfully at the time that he was a child soldier who should be rehabilitated rather than prosecuted in a military tribunal.
Canada formally apologised to Khadr in 2017 “for any role Canadian officials may have played in relation to his ordeal abroad and any resulting harm” and paid out C$10.5 million (US$7.83 million) in compensation.
The US opened the Guantanamo detention facility for foreign terrorism suspects in 2002 under former President George W Bush, months after US forces invaded Afghanistan in the aftermath of the Sept 11, 2001, attacks on the US by al-Qaeda militants who were harboured by the country’s Taliban leaders. The Taliban returned to power in Afghanistan in 2022 after Biden withdrew US forces.