GUANTANAMO BAY, CUBA—Nearly eight years after his capture, 23-year-old Omar Khadr will go before a military judge Wednesday in what one military legal adviser called the first substantive tribunal hearing of the Obama administration.
Over the next two weeks, the attorneys for Khadr, a Canadian citizen charged with murder, conspiracy and support of terrorism who has been detained by the U.S. since 2002, will attempt to convince trial judge Col. Patrick Parrish that incriminating statements Khadr made are inadmissible because they were obtained through torture.
But the question of whose responsibility it is to prove Khadr’s guilt or innocence remains highly disputed.
“It’s [the defense’s] burden,” to show Khadr’s admissions were coerced, said Capt. David Iglesias, a legal adviser with the Office of Military Commissions, calling the proceedings the “first full-blown hearing” since President Barack Obama came to power.
Jennifer Turner, an attorney and commission observer for the American Civil Liberties Union, argued instead that, as constructed, the burden of proof in commission cases is unclear.
“The problem is there are currently no rules in place,” she said. “Those rules should tell us how coerced evidence should be handled at trial. Without those rules the judge has to make it up as he goes along. It shows that, again, the case should be transferred to federal court where they have years of experience dealing with these types of cases.”
Khadr is accused of throwing a grenade that killed Sgt. Christopher Speer, a Delta Force commando, during a July 2002 firefight in Afghanistan. After the fight he was found unconscious, partially blinded by shrapnel and shot twice in the back by American forces, and was airlifted to Bagram Air Base for medical attention. He was 15 at the time.
His father, Ahmed Said Khadr, was an aid worker who had close ties to militants such as Osama Bin Liden. The U.S. government says that the father, who was killed by the Pakistani forces in 2003, took his son to meetings with Bin Laden and other Al Qaeda leaders. Omar Khadr’s alleged presence at those meetings is being used as evidence against him.
Defense attorneys Barry Coburn, Kobie Flowers and Army Maj. Jon Jackson will present evidence that during Khadr’s detainment at Bagram and Guantanamo Bay he was subjected to a variety of abuse: Stress positions, suffocation, threats of rape, and being used to wipe up his own urine among them. During those interrogation sessions, Khadr now says, he told his interrogators what they wanted to hear rather than the truth.
Prosecutors claim that Khadr is lying, writing in a court document that his incriminating remarks were “the products of conversational and noncoercive interviews.” “Khadr’s uncorroborated allegations of mistreatment are false; they are self-serving fabrications,” wrote Maj. Jeffrey D. Groharing, the government’s chief prosecutor.
With formal charges filed against him in 2005, Khadr is one of the first detainees to be prosecuted under the military commission system. As the commissions have evolved and Khadr’s combatant status has been reconsidered, the charges against him have been dropped and reinstated multiple times. The most recent charges were filed in September 2007, when the Court of Military Commission Review ruled that the tribunal itself could determine whether he is alleged combatant activities were unlawful. Khadr’s case is further complicated by his age and citizenship.
Khadr is the youngest accused war criminal in modern history, and several human rights advocates are arguing that he should be treated as a child soldier, not an unlawful combatant. The ACLU’s Turner, Daphne Eviatar, a senior associate with Human Rights First, and Shayana Kadidal, a senior attorney for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights, all said rehabilitation, historically the reaction to situations involving child soldiers, as opposed to prosecution, should have been an option for Khadr.
Iglesias said Khadr’s age does not prohibit the U.S. government from prosecuting him. “The judge can take into consideration his youth” he said.
Khadr’s Canadian citizenry is another complicating factor. Earlier this year the Supreme Court of Canada ruled that Canadian officials who participated in Khadr’s interrogation violated his rights, although it did not order the government to seek his repatriation. In March, the National Post newspaper in Canada reported that the Obama administration was seeking a way to return Khadr to Canada. While the defense will argue that Khadr’s confessions were obtained through unlawful interrogation, his lawyers also will claim that an original report about the engagement says Speer’s killer was killed at the time, ruling out Khadr.
One of Khadr’s former defense attorneys, Navy Lt. Cmdr. William Kuebler, accused the government of manufacturing evidence when it produced an “updated” version of the report that said Speer’s assailant had merely been “engaged,” not killed. However the prosecution is not relying solely on Khadr’s disputed admissions or the accusation that he killed Speer.
They argue his terrorist involvement is proven by a video discovered at the site of the firefight. The video shows Khadr building and planting improvised explosive devices, known as IEDs.
“Realistically there is a very good chance his statements will be suppressed,” said Joanne Mariner, director of Human Rights Watch’s Terrorism and Counterterrorism Program.