“If there are any policies dealing with how we are to treat and handle minors who are captured, I don’t care what you think—that’s discoverable.”

Frank Kendall – Human Rights First volunteer consultant – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. He is providing updates of what he observes.

Guantánamo Bay, April 11, 2008: Today’s defendant, Mr. Omar Khadr, a 21 year old Canadian citizen, was 15 years old when he was wounded and captured in Afghanistan. He has been imprisoned at Guantánamo since he was 16 years old. Mr. Khadr’s case has gained a good deal of notoriety; it is the subject of at least one book and has been covered on 60 Minutes and elsewhere. The government has charged him with murdering an American soldier by throwing a grenade in the course of a firefight that occurred in Afghanistan on June 27, 2002. He is also charged with attempted murder, conspiracy, providing material support for terrorism, and spying. The United States is seeking life in prison for Mr. Khadr. There is great international concern over the issue of Mr. Khadr’s age at the time of his alleged offenses and the appropriateness of bringing charges against him. The American government asserts that Mr. Khadr can be tried and punished as an adult, and the Canadian government has not intervened. Prosecuting someone for alleged war crimes committed as a juvenile is virtually without precedent, particularly by western nations in modern times.

Mr. Khadr’s Case

Mr. Khadr’s charge sheet alleges that he received training from al Qaeda members in June and July 2002. He is said to have scouted American positions (apparently the basis of the spying charge), and to have engaged in planting improvised explosive devices after the training. It is also alleged that, on July 27, 2002, Mr. Khadr and other al Qaeda members engaged American and Afghan forces in a firefight at a compound occupied by al Qaeda members or affiliates. Mr. Khadr is accused of throwing a grenade at American troops during the firefight, resulting in the death of an American sergeant. At some point, Mr. Khadr was shot twice in the back. Ultimately, he was taken prisoner.

The initial public accounts of the incident implied that Mr. Khadr had been lying in wait for American troops to enter the compound after the fight occurred and that he surprised them by throwing a grenade as they entered. Subsequent accounts have called into question the accuracy of this version. Today defense counsel raised the possibility that based on eyewitness reports, the sergeant may have been killed by other fighters or even by friendly fire. Defense counsel also reports having received more than one version of the initial incident report, prepared immediately after the firefight, and asserts that the government may have altered the report to strengthen the case against Mr. Khadr. The possibility that Mr. Khadr’s case is being brought as a result of political interference was also raised.

Today’s Proceedings: Ability to Mount an Effective Defense and “Equality of Arms”

The hearing today addressed the status of numerous discovery motions filed by the defense and some other procedural issues. Mr. Khadr was present but did not speak. The defense has filed more than 50 discovery motions, requesting the disclosure of documents, witness names, and physical evidence. (Motions filed prior to about two weeks ago are available at the military commission site at http://www.defenselink.mil/news/commissionsKhadr.html.) The military commission rules require that the government provide the defense with relevant and material information, particularly anything that tends to prove Mr. Khadr’s innocence or provides mitigating and extenuating factors for sentencing. Government prosecutors say they are doing everything they can to respond to the defense requests, but at the same time, they have actively objected to many of those requests. This is not unusual trial practice, but it does highlight the difficulties of mounting an effective defense and the inherent lack of “equality of arms” built into the military commission rules. Today the prosecutor repeatedly asserted that defense counsel had not explained the materiality of the requested information.

There is an inherent imbalance in this and all military commission cases. The government controls almost all of the information, in particular the classified information. This is despite the fact that defense attorneys have appropriate security clearances. Mr. Khadr’s defense counsel, for example, is a Navy Lt. Cmdr. with a top secret clearance. In one instance today, the prosecutor argued that, in his view, the defense did not have “the need to know,” a standard military term of art generally applied to classified information. The prosecutor also asserted a “heightened standard” with regard to classified information that, in his view, the defense had not met. It was quite clear from this exchange that the government has power to deny or delay the exposure of information to the defense. On one occasion, the trial judge noted that the prosecutor had referred to a defense discovery motion as “voyeuristic.”

The prosecutor repeatedly asked the military judge, Col. Peter Brownback, to explain the basis upon which he would rule on discovery issues. The stated purpose of this request was to give the prosecutor a basis for appealing the judge’s decision to the Court of Military Commissions Review (CMCR). The CMCR is a new and unique military court set up under the MCA as the first level of review from a military commission prior to review by a federal court. Under the MCA, the prosecutor has the right to file interlocutory appeals of adverse discovery rulings regarding classified information. The defense can appeal adverse rulings on access to classified information only after a verdict is reached, and when reversal is less likely.

There were several instances discussed today in which information had been slowly extracted from the government or where the government had not been forthcoming. A video from the firefight in Afghanistan was only recently found in storage at Guantánamo. Multiple reports written by the commander of the unit that provided significantly different accounts of the battle and of Mr. Khadr’s individual role were only recently located. The prosecutor cited the late emergence of these items as proof that the government is searching diligently for information, but the opposite interpretation is just as plausible.

In response to some of the requests, the prosecution has been very forthcoming with documents, which highlights another imbalance between the prosecution and defense. One member of the defense team informed me that the defense has received approximately 20,000 pages of documents to review. The prosecutor has a team of six attorneys and has been preparing its case for years. The detailed defense team has two attorneys and has had much less time to prepare.

I want to end this part of today’s discussion with a quote from a passionate argument the prosecutor made to the military judge: “We take our discovery obligations seriously, and have gone well and beyond what the drafters of the Military Commissions Act expected at a military commission…We have volumes of discovery requests that do not spell out any explanation as to why they would need the material.” I have to infer from this that the prosecution believes that the drafters of the MCA did not expect a serious discovery process, but something more abbreviated than that conducted in other more established criminal systems.

Prosecution Theories of Culpability

Because the MCA creates a new body of criminal law, it is unclear how the offenses included in the MCA will be defined in practice. Today the prosecution provided some insight into how broadly it construes the war crimes enumerated in the MCA. For example, the prosecutor articulated a theory of conspiracy that is exceptionally broad. Essentially the government asserted that anyone who joins or cooperates with al Qaeda in any way is a co-conspirator in any crime that al Qaeda intends to commit or commits. The logic articulated by the prosecutor was that, if someone joins or supports al Qaeda, knowing the organization’s history of terrorist activity, the mere act of joining the organization makes one guilty of conspiracy. Conspiring to commit a specific act of terrorism is not required. This could make designation as an unlawful enemy combatant synonymous with having committed a war crime, although the standard of proof is higher before a military commission.

Finally the prosecution seems to be endorsing a felony murder theory. In most criminal jurisdictions, a person who commits a felony during the course of which someone is killed may be tried for murder, even if the person had nothing to do with the actual killing and even if the death was an indirect result of the crime. There is no provision under the MCA, however, for this theory of culpability. The MCA defines murder as “intentional kill[ing of] one or more persons, including lawful combatants, in violation of the law of war.” During today’s press conference, the chief prosecutor Col. Morris suggested that Mr. Khadr could still be convicted of murder, even if the sergeant was killed by friendly fire, because Mr. Khadr participated in the firefight during which the sergeant was killed. This may significantly extend the scope of the MCA as it is written.

Final Observations

Although Judge Brownback made few rulings today, he forcefully asserted himself during at least one point. He made the following statement regarding the discovery of mitigation evidence: “If there are any policies dealing with how we are to treat and handle minors who are captured, I don’t care what you think – that’s discoverable.” The fact that Mr. Khadr was 15 when he was arrested is not going to change. However, the rules related to juvenile prosecutions—like almost everything else associated with the conduct of the military commissions—are going to be made up along the way.

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Published on April 14, 2008

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