WASHINGTON - Canadian Omar Khadr shouldn't be able to appeal his terrorism case in a regular American court until his military trial is over, U.S. government lawyers said Monday.
In a submission to the federal U.S. Court of Appeals for the Washington, D.C. district, they argue Khadr must first face judgment in a Guantanamo Bay courtroom.
"There is no final judgment for this court to review,'' wrote U.S. attorney John De Pue.
"No court has adjudicated the charges against Khadr; indeed, no court has yet conclusively determined whether the military commission has jurisdiction over Khadr.''
It's the latest legal twist in what Khadr's lawyers call the "sad and strange saga'' of military commissions for foreign terror suspects set up by President George W. Bush.
Khadr, 21, is charged with killing a U.S. soldier in Afghanistan in a 2002 firefight when he was 15 years old. He is also charged with attempted murder, planting bombs in Afghanistan, spying for al-Qaida and conspiring with terror chief Osama bin Laden.
Last week, a U.S. military judge ordered Khadr to appear Nov. 8 for a hearing at the American naval base in Cuba.
That hearing is supposed to determine whether Khadr is, in fact, an "unlawful'' enemy combatant who can be tried by the military.
In June, Col. Peter Brownback threw out the charges, saying he didn't have jurisdiction to hear the case because it hasn't yet been determined that Khadr was fighting illegally when he allegedly threw the grenade that killed Sgt. 1st Class Christopher Speer.
But a special military appeals court said in September that Brownback has the authority to make the determination.
It's that ruling that Khadr's lawyers are appealing.
While government lawyers called the defence appeal "frivolous,'' Khadr's military lawyer, Lt.-Cmdr. William Kuebler, said it's outrageous that they're complaining.
The military commissions system is supposed to allow for an appeal to regular courts from either side during a military trial, he said.
"Usually they're making up rules as they go along. Now they're unmaking rules,'' said Kuebler.
Khadr's military trial has been plagued by legal wrangling since it began in January 2006.
Canada has refused to get involved in the case even though countries like Britain have demanded their citizens be sent home to face justice.
Khadr is the last prisoner from a western country at Guantanamo's detention facility, which has been widely condemned by human rights groups.
