The Relevance of Discovery in Trial

Sahr MuhammedAlly – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, May 8, 2008: Today’s military commission hearing in the case of 21-year-old Omar Khadr was all about discovery—what documents the government will turn over so that Khadr can effectively mount a defense. One thing was clear: the government is in possession of documents it does not want to disclose to the defense.

In the third discovery session since Khadr was arraigned in November 2007, Judge Col. Peter Brownback went through a list of outstanding discovery requests. Some of the requests include: an al Qaeda membership list from 1989 onwards; documents pertaining to the Libyan Islamic Fighting Group (LIFG) and contacts between al Qaeda and LIFG; copies of the DIMS (Detainee Information Management System) records relating to Khadr while in Guantánamo; documents relating to the men with Khadr during the firefight on July 27, 2002; policy on SERE (Survival, Evasion, Resistance, Escape) Interrogation Techniques; documents regarding the recruitment and use of children by al Qaeda, the Taliban or associated forces; and investigator notes of witness interviews.

The Charges

Toronto-born Khadr is accused of throwing a hand grenade in a July 2002 firefight between U.S. forces and al Qaeda suspects in Afghanistan. The grenade allegedly hit Special Forces medic Sgt. 1st Class Christopher Speer, who died of his wounds. Khadr was 15 years old at the time. Khadr has also been charged with attempted conspiracy with Osama bin Laden and associates of al Qaeda and with providing material support for terrorism. He is accused of providing himself to al Qaeda, which engaged in hostilities against the United States, including attacks in Kenya and Tanzania in 1989, the attack against the USS Cole in 2000, and the September 11, 2001 attacks.

Discovery Related to Issues of Ill-Treatment

The defense has claimed that Khadr was coerced into making statements as a result of harsh interrogations. In a redacted affidavit written in 2008, Khadr says that during his three-month imprisonment at Bagram, he was interrogated approximately 42 times. He also says that he was interrogated over 30 times in Guantánamo. He alleges that while in Bagram, he was hooded, sexually humiliated, threatened with attack dogs, and made to stand with his arms tied above him after suffering bullet and shrapnel wounds. At Guantánamo, Khadr says, “I was not provided with any educational opportunities, no psychological or psychiatric attention, and was routinely interrogated.” He also alleges that he was subjected to prolonged periods of isolation, sensory deprivation, stress positions, temperature exposure, and humiliation. Khadr claims that he was frightened into telling interrogators what they wanted to hear.

The defense has requested production of DIMS (Detainee Information Management System) records, which document Khadr’s day-to-day treatment in Guantánamo, to show that Khadr was punished for his failure to cooperate with interrogators. Judge Brownback ordered the government to produce the records by May 22 and said that, although he understand concerns about protecting prison officials’ identification, two members of the defense team, including lead counsel Navy Lt. Cmdr. William Kuebler, have the appropriate security clearances and are under a protective order. In the alternative, the judge ordered that the information be provided with the names of personnel redacted. Brownback warned that failure to produce the documents could result in an “abate[ment]” of the proceedings.

As part of the DIMS request, counsel referred to two government investigations: a 2005 Naval Criminal Investigation and a 2006 U.S. Army Criminal Investigation Division reportabout abuse in Bagram. The Army CID investigation was terminated because it involved “Sgt. C,” who had interrogated Khadr and was being court-martialed for his involvement in the death of a Bagram detainee. That investigation did, however, corroborate that Khadr was made to stand for hours with his hands chained above him. (Sergeant Joshua Claus was one of 15 US military personnel charged in connection with the murder of two men at Bagram five months after Khadr’s arrival. Claus was court-martialed for assault and “maltreatment of a detainee.” He pled guilty and was sentenced to five months in jail).

Counsel also made a motion to seek production of the December 2002 SERE Standard Operating Procedure (SOP), which apparently lists a set of abusive interrogation methods employed at Guantánamo. The SERE program was designed to help U.S. troops resist breaking under abusive interrogations if captured by enemy forces. As part of the SERE program, trainees are subjected to abuse, including sleep deprivation, sexual and cultural humiliation, and, in some instances, waterboarding. Prosecutor Marine Major Jeffrey D. Groharing admitted that the government has the SERE SOP, but said that it was not official policy at Guantánamo and therefore not relevant for discovery purposes. Notably, a March 2005 sworn statement by the former chief of the Interrogation Control Element at Guantánamo, however, said that SERE instructors taught their methods to Guantánamo interrogators. (The ACLU also made public a redacted document, obtained through Freedom of Information Act litigation, which referred to the December 2002 document).

Defense counsel has also sought the production of a February 2003 videotape of Khadr’s interview with Canadian officials to show that Khadr’s mental state is that of someone who has suffered abuse. Counsel also informed the court that a request has been made to the Convening Authority to allow Khadr to be evaluated by a psychiatrist and to show the expert the 2003 videotape. The government has agreed to produce the video but will alter the images of government officials.

Discovery Needed to Refute Charges

Defense counsel argued that because the government has charged Khadr with being associated with al Qaeda, it needs the membership list of al Qaeda, information about LIFG, an organization associated with al Qaeda, and names of known co-conspirators. Prosecutor Groharing objected, stating that the documents are not relevant and that Khadr had confessed to being a member of al Qaeda. Defense counsel replied: “a coerced statement by a 15-year-old is not proof.” He elaborated that “this is a case about a firefight, but the government has made it about Khadr’s alleged involvement with al Qaeda activities in 1998, the USS Cole, and 9/11—things that Omar has nothing to do with. This has consequences. . . .The nature of charges leads to scope of discovery.”

Judge Brownback asked the prosecution whether they knew the names of Khadr’s co-conspirators. The government stated that Khadr conspired with Abu Laith al-Libbi, former head of LIFG who was killed by U.S. forces in 2008, and other unknown individuals shown with Khadr in a bomb-making video.

No Discovery, No Trial Date

Judge Brownback asked the prosecution several times whether it had the documents requested, and the government’s answer was affirmative. Yet the government has not provided those documents to the defense. A frustrated judge at one point said: “I have been badgered by the prosecution to set a trial date. . . but one need’s discovery. . . This is incumbent on all to comply. If you [referring to the prosecutor] want to try the case discovery is needed. Get on with it.”

Maj. Groharing repeated the government’s request for a trial date because victims are “waiting for justice.” He then said that Lt. Cmdr. Kuebler spends more time “writing op-eds” and trying to put political pressure on Canada to release Khadr instead of preparing for trial. Judge Brownback replied that, according to the commission, “how opposing counsel best allocates time is not relevant to setting a trial date. Trial schedule is based on whether we are ready for trial.”


Published on May 9, 2008


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