During a firefight on 27 July 2002, Khadr was captured by the US Army and imprisoned in Guantanamo. Khadr’s lawyers have asserted he has been abused in U.S. custody and that his capture and detention at age 15 violated American responsibilities under accords regarding treatment of young people during war.
On November 4, 2005, Khadr was charged with Conspiracy for joining an enterprise of persons who shared a common criminal purpose and conspired with Osama bin Laden and various other members of the al Qaeda organisation to commit several war crimes like attacking civilians, attacking civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent, and terrorism.
Moreover, Khadr is indicted for the murder of Sergeant First Class Christopher Speer and attempted murder of US military personnel by planting the improvised explosive devices in the ground where U.S. troops were expected to be travelling.
Finally, Khadr is accused of intentionally aiding the enemy, Al Qaeda, in the context of and associated with an armed conflict.
On 10 and 11 January 2006, pre-trial hearings took place, even though there was a pending Supreme Court case regarding the legality of the trials before the military commissions (cf. Salim Ahmed Hamdan in "related cases").
The United States did not seek the death penalty against Omar Ahmed Khadr or any other of the nine Guantanamo Bay prisoners who have been charged with war crimes.
The charges were formally approved by the Pentagon on 24 April 2007 and his trial before a Guantanamo military commission was set to begin in August 2007.
The jurisdiction of the military commissions for foreign citizens in the war on terror is based on the President's determination from 30 July 2005 that Omar Khadr is subject to his Military Order from 13 November 2001.
A lawsuit brought by Khadr and Hamdan (see "related cases") to challenge the legality of their trials by a military commission was rejected by the US Supreme Court on 30 April 2007.
Under the new 2006 Military Commissions Act, coerced testimony is allowed and no one subject to such trials "may invoke Geneva Conventions as a source of rights."
In May 2007, Khadr fired his US military and civilian lawyers and asked to be represented by Canadian lawyers of his choice. However, the rules for the military commissions prevent foreign lawyers from being the lead attorneys in war crimes trials.
During a first arraignment before the Military Commission on 4 June 2007 a US military judge dismissed all charges against Khadr due to lack of jurisdiction to try him.
The Judge ruled that Congress had created the military commissions to try only so-called "unlawful'' enemy combatants. The military panel that ruled on Khadr's status designated him only as an "enemy combatant'' in 2004. Only if Mr. Khadr were an "unlawful'' combatant could his alleged acts be a war crime or murder.
Khadr was however not released following this ruling. The Bush administration said he might be held as a prisoner until the end of hostilities in the so-called war on terror.
On 29 June 2007 a US military judge declined to revive charges against Khadr.
On July 4 2007, Prosecutors filed an appeal in Khadr's case with the Court of Military Commission Review.
On 24 September 2007 the US Court of Military Commission Review overruled the decision by the military judge and reinstated terrorism charges against Khadr.
The appeals court held that the distinction between 'enemy combatant' and 'unlawful enemy combatant' was purely semantic and that the military tribunal system still had the authority to try Khadr.
The Court indicated that it had not been established whether Khadr was an illegal enemy combatant and that this was to be determined by the military judge himself.
For the purpose of determination of his status, Khadr appeared before the military judge on 8 November 2007.
A pretrial hearing began at Guantanamo Bay on 4 February 2008. Khadr's military defence team had 15 different motions prepared. Some essentially assert that the military commission process itself is illegitimate because it was set up by Congress at the urging of the Bush administration in 2006, four years after the alleged crimes were committed.
In 2010, Khadr pleaded guilty to five war crimes, as part of a plea bargain. He spent eight years in Guantanamo Bay before being convicted to eight years in prison.
On 29 September 2012, the US transferred Khadr to Canada from Guantanamo Bay under the International Transfer of Offenders Act. He was put under the authority of the Correctional Service of Canada.
On 8 July 2014, the Alberta Court of Appeals ordered that Khadr be transferred from a federal penitentiary to a correctional facility, because he was 20 years old at the time of the transfer.
In June 2014, a secret memorandum by the Justice Department's Office of Legal Counsel from 2010 regarding Central Intelligence Agency (CIA) involvement in drone killing of a US citizen Anwar Al-Awlaki in Yemen, came to light after a court ordered it to be disclosed in a freedom of information case.
This memorandum casts doubt on the legal basis of the American government's decision to prosecute Khadr for war crimes at all. The Department of Defence prior to Khadr's guilty plea wanted to know whether CIA agents could be considered unlawful combatants when they operate drones, since they are neither part of the armed forces, nor wear uniforms. Previously, the US claimed that as an unlawful combatant, Khadr violated "US common law of war" when he directly participated in hostilities against US. However, the legal analysis in the CIA case does not mention this body of law. The memorandum concluded that CIA agents would not be guilty of war crimes by using drones, even though they could be seen as unlawful combatants.
Khadr's defence lawyers assert that it is clear from the memorandum that unprivileged belligerency is not a war crime, and that Khadr's convictions from Guantanamo Bay must be set aside immediately.
The US government argued this memorandum is irrelevant for Khadr's case, since CIA agents are government actors, engaged in lawfully authorised hostilities, while Khadr as a non-governmental actor was engaged in hostilities not sanctioned by any state.
On 7 May 2015, pending his appeal against his US conviction and despite the opposition of the Conservative government of Stephen Harper, Khadr is released under certain conditions. He will live with his lawyer, can talk with his family only under surveillance and in English. He must respect a curfew and his Internet connections are limited and monitored.
Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty.