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Secret note on CIA drone killings reveals US had no legal basis to indict Omar Khadr with war crimes (lawyers)

Khadr’s lawyers argue memo proves US had no legal basis to prosecute Khadr for war crimes, say his Guantanamo Bay convictions should be overturned

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A previously secret memo about the CIA’s involvement in the drone killings casts new doubt on whether the US government had a legal basis to prosecute Canadian Omar Khadr for war crimes.

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In fact, Khadr’s lawyers argue in new files filed with the United States Military Commission Court of Review that the Justice Department document categorically rejects any such legal basis and asserts that his Guantanamo convictions Bay should be canceled immediately.

The note – produced in July 2010 in connection with the drone targeting U.S. citizen Anwar Al-Awlaki – was only revealed last month after a court ordered its disclosure in a hotly contested freedom of information case by the New York Times and the American Civil Liberties Union.

Specifically, the US Department of Defense wanted to know if CIA agents who used drones – but who were not part of the military and did not wear uniforms – could be considered “unprivileged belligerents” and therefore potentially guilty of war crimes.

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THE CANADIAN PRESS / Colin Perkel
THE CANADIAN PRESS / Colin Perkel

In the detailed opinion several months before Khadr pleaded guilty before a widely maligned military commission, the Justice Department’s legal counsel’s office concluded that war crime depends on a person’s actions, not factors such as whether the person is officially in the military or wearing a uniform.

“It completely blows up one of the main strands of government theory in all of these Guantanamo cases,” Sam Morison, Khadr’s Pentagon-based lawyer, said in an interview Wednesday.

In Khadr’s case, the Pentagon argued that as an unprivileged belligerent, Khadr had violated “American Common Law of War” dating back to the Civil War by taking hostilities against American forces.

However, the full legal analysis of the CIA case makes no mention of such a body of law.

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“The overall objective… was to assess whether CIA agents were breaking the law,” Morison said. “The only reasonable interpretation of this analysis is that it does not exist (like the common law of war). “

The memo also raises the question of whether the Canadian government knew Khadr’s conviction was unfounded when it agreed to take him back in September 2012, the motion says.

“Otherwise, the United States appears to have misled one of its closest allies by wrongly imprisoning one of its own citizens. “

US forces captured a seriously injured Khadr, then 15, following a four-hour firefight in Afghanistan in July 2002.

THE CANADIAN PRESS / Colin Perkel
THE CANADIAN PRESS / Colin Perkel

In October 2010, Toronto-born Khadr pleaded guilty to five war crimes – including one murder in violation of the law of war in the death of a US special forces soldier – and was sentenced to an additional sentence of eight years.

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It is not known whether Khadr’s prosecutors were aware of the memo on the CIA drone, which was not disclosed to his lawyers or the military commission’s trial judge.

“They didn’t tell the court that they had a definitive, authoritative legal opinion from the Department of Justice that blew up their theory of the case,” Morison said.

“It’s unethical.”

Khadr, who said he only pleaded guilty to getting out of Guantanamo, is currently serving his sentence in an Alberta jail.

Public Safety Minister Steven Blaney, who has repeatedly called Khadr a hardened and dangerous terrorist and pledged to fight any attempt to ease his sentence, declined to comment on the note. Omar Khadr sued for $ 50 million the widow of an American soldier killed in Afghanistan and wounded sergeant

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