TORONTO – A U.S. military commission court is threatening to strip the security clearance from Omar Khadr’s Pentagon-appointed lawyers as part of what they call an unconstitutional attempt to keep the public in the dark about the Canadian’s fight for exoneration.
At issue, according to submissions made Friday, is a demand by a senior court official that all appeal documents be kept secret until they can be vetted for national security concerns.
Documents already filed with the Court of Military Commission Review include, for example, the former Guantanamo Bay prisoner’s reasons for having his conviction for five war crimes quashed. The court has yet to release the brief, filed last November, although The Canadian Press obtained a copy at the time and reported on its contents.
The matter came to a head earlier this month when Clerk of Court, Mark Harvey, essentially accused the lawyers of giving a defence filing and government response to the U.S.-based blog Lawfare in apparent violation of security procedures he had implemented.
While it’s not clear who did turn over the material which The Canadian Press also received, court documents show Harvey wrote to Khadr’s lawyer, Sam Morison, to warn that such a violation could “result in the loss of access to classified and sensitive information.”
Loss of security clearance would effectively preclude a lawyer from doing any government work.
The defence says under Harvey’s system, documents must go to the Office of the Military Commission — which prosecuted Khadr and is a litigant in his appeal — for vetting, clearance and release to the media.
So far, the commission has made public only four of 19 defence documents, but seven of 12 government filings. The numbers are “decidedly skewed” in the government’s favour, the defence argues.
Khadr’s lawyers say they have no problem withholding information harmful to national security but say the vetting is being carried out in a secretive “legal vacuum” that runs counter to the open-courts presumption and the public’s right to know.
“The screening process (Harvey) has unilaterally implemented is unwritten and appears to operate on the basis of nothing more than his individual discretion as to the timing, scope, and nature of how information about these proceedings will be released to the public,” Morison states in his legal submission.
“This ad hoc system violates Mr. Khadr’s statutory and Sixth Amendment rights to an open and public proceeding, and the First Amendment right of the press and the public to access this court’s judicial records.”
The new filing shows the defence is also accusing the clerk of unduly trying to influence how they defend their client by trying to curb their ability to go public.
“Mr. Khadr has been subjected to relentless and grossly inaccurate negative publicity, both in the United States and Canada,” Morison states.
“Counsel have both a right and an obligation to correct these material misstatements of law and fact.”
Morison is calling on the court to rein Harvey in.
Harvey could not immediately be reached for comment Friday.
Khadr, 27, is currently serving an eight-year sentence handed down by a military commission in 2010 at a medium-security facility in Alberta.
His lawyers argue the U.S. had no legal basis to prosecute him, because the offences to which he pleaded guilty were not war crimes when they occurred in Afghanistan in July 2002 when he was 15 years old.