Alliance of White Anti-Racists Everywhere – Los Angeles
Omar Khadr
The Victims
01 year ago
Yesterday was an emotional day of testimony from widow Tabitha Speer and Omar Khadr. As a reminder, on Monday, Khadr pled guilty as part of a plea agreement to all of the charges against him, including throwing a grenade that killed Sgt. Christopher Speer eight years ago. We are now in the sentencing phase of the case.
In eloquent testimony, Sgt. Speer’s widow, Tabitha, testified about the impact of her husband’s death on their 11-year-old daughter, Taryn, and 8-year-old son, Tanner, who was so young at the time of Sgt. Speer’s death in Afghanistan that he does not remember his father. Tabitha read to the court letters from her children to Khadr, and showed photos of Sgt. Speer with their children.
Mrs. Speer said of Khadr, "Everyone wants to talk about how he’s the victim, he’s the child. I don’t see that. The victims, the children, are my children."
Mrs. Speer’s emotionally affecting testimony drove home again the tragedy of her husband’s death in combat. Had this case been brought in federal court, where the legitimacy of the system is not in question, it would have been resolved long ago and Sgt. Speer’s family would have had some measure of closure. (More than 1,200 U.S. service members have been killed in Afghanistan since 2001, but Sgt. Speer’s killing is the only one to be prosecuted as a war crime in a military commission proceeding. Because battlefield killing is not a violation of the laws of war, an alleged murder would usually be handled in domestic criminal courts.) And Omar Khadr, who was just 15 when he was captured by U.S. forces, would not have languished in detention for eight long years awaiting trial.
Yesterday, Mrs. Speer’s moving testimony understandably captured the headlines. What seems to be missing from news coverage is a critically important — and likely unconstitutional — ruling by the military judge, Col. Patrick Parrish. Col. Parrish ruled that no evidence about Khadr’s abuse in U.S. custody could be put before the jury to consider in sentencing.
This ruling is deeply problematic on any number of grounds. In any U.S. sentencing proceeding — whether in federal, state or military court, and regardless of whether a judge or jury decided the sentence — it would likely be a violation of the Eighth and 14th Amendments for evidence of harsh pre-trial detention conditions and abuse in custody not to be a mitigating factor in sentencing. Federal sentencing law also unequivocally states that there should be no limitation placed on background information about a defendant. Under both federal procedure and the rules governing regular military courts-martial, evidentiary standards are relaxed during the sentencing phase of a case. It is virtually inconceivable that, in any forum other than these military commissions, a judge would prohibit evidence of coercion and abuse — especially of a juvenile, as Khadr was — as a mitigating factor. (And indeed, a defense lawyer who failed to raise harsh conditions or mistreatment as mitigation of sentence would risk a strong claim of ineffective assistance of counsel, which is a violation of the Sixth Amendment.)
Apparently disregarding established law and procedure, in the military commissions, Col. Parrish seems to be able to make up his own rules.
The judge therefore ruled that the jury cannot see sworn pre-trial testimony in this case from an Army medic at Bagram who saw Khadr hooded and chained in a cagelike cell with his arms suspended from a metal grate. At the time, Khadr was 16 years old and still recovering from two gunshot wounds in his shoulder and back.
The judge also ruled that the jury cannot see previous testimony from Joshua Claus, identified only as "Interrogator One" in the military commissions, who told Khadr a fictitious story about a young Afghan sent to an American prison, where he was gang-raped and possibly killed by "a bunch of big black guys and big Nazis," because he didn’t cooperate with interrogators. Claus was Khadr’s primary interrogator at Bagram, and was later court-martialed for detainee abuse leading to the death of a detainee.
The jury will never hear testimony that Khadr was taken to Bagram near death and interrogated two weeks later while the 15-year-old was sedated and handcuffed to a stretcher. Nor will the jury hear about how during Khadr’s subsequent detention at Guantánamo, he was subjected to the "frequent flyer" sleep deprivation program and says he was used as a human mop after he was forced to urinate on himself.
Yesterday’s indefensible ruling is emblematic of an untested legal process where a judge can make up the rules, to erase evidence and allegations of abuse from the record before a jury.
(Cross-posted to Huffington Post and Daily Kos.)
Government Witness Claims Gitmo Radicalized Child Soldier
01 year ago
Since Omar Khadr’s guilty plea this Monday, the case has moved into the sentencing phase, and a panel of senior military officers has been hearing testimony about mitigating and aggravating factors. Khadr’s actual sentence is capped under the plea bargain agreement, the terms of which have not been disclosed to the jury. Now 24, Khadr was 15 when he was captured by U.S. forces in Afghanistan, and has spent a third of his life at Guantánamo.
Over the past two days, we heard hours of testimony from prosecution expert witness Dr. Michael Welner, a courtroom psychiatrist-for-hire who invented the "depravity scale," which purports to quantify evil and depravity in criminal defendants. Welner’s assessment of Khadr was made on the basis of a 7- to 8-hour court-ordered interview with him and interviews with 20 other people. Welner worked 500-600 hours on Khadr’s case, and the rumored cost to the government is around half a million dollars.
Welner, who spoke with no detainees other than Khadr and has no expertise in Islam, let alone radicalism or deradicalization programs, dramatically pronounced Khadr to be "highly dangerous" as a result of his imprisonment at Gitmo.The basis for Welner’s conclusions is highly questionable, to say the least.
Welner went on to discuss recidivism among released Gitmo detainees, citing widely discredited (PDF) Pentagon statistics that claim as many as 20 percent of released Gitmo detainees have returned to terrorism. The inflated Pentagon figures even include three British friends who were interviewed for a critically acclaimed documentary on their imprisonment at Guantanamo – according to the Pentagon, the interviews themselves were "anti-coalition militant activity" and thus counted among those "returning to the battlefield."
Welner outrageously cited as signs of Khadr’s future dangerousness that he has "memorized the Quran and studies it energetically," and that he leads other detainees in prayers. Ignoring social science research and epidemiological evidence to the contrary, Welner claimed that Khadr’s religiosity is a sign of future dangerousness, In fact, research has conclusively found the opposite: religious belief and membership in a community are reliable predictors for rehabilitation. In the course of his testimony, Welner variously referred to radical Islam as "deviant," a "pathology," and a "passion;" he also analogized it to a "fungating tumor wrapped around an artery" that must be surgically removed.
Welner based his assessment of Khadr largely on the opinions of a Danish psychologist, Nicolai Senells, who treated Muslim inmates in a Copenhagen prison and wrote a book about his findings. Welner never actually read Senells’ book; he just called Sennels up on the phone and chatted with him.
On cross-examination we learned that a simple Google search reveals numerous examples of Senells’s Islamophobia. He once characterized a Muslim patient as "someone from another planet on my couch." In July, Sennels wrote an open letter to British Prime Minister David Cameron in which he called the Quran "a criminal book that forces people to do criminal things." In an article, Sennels wrote about half of all Muslims are inbred, contributing to problems with "intelligence, sanity, health and society." In an interview, Senells told an online magazine, "We should in general make it so unpleasant and the economic disadvantage so big that the consequences of non-integration would motivate resident Muslims to emigrate."
Welner also pointed to the fact that Toronto-born Khadr is not Westernized as another sign that he is dangerous . Welner testified that Khadr reads the Quran, but has no interests in Western studies. Sure, he read Harry Potter, but that’s just escapist reading, dismissed Welner.
On cross-examination by the defense, however, we learned that Khadr told Welner both that he had secular interests and that he has tried to educate himself while in detention. In fact, in a court-ordered interview, Khadr had told Welner that he is studying GED books and English, math and science textbooks well-wishers have sent him, but finds it difficult to teach himself: "Since I stopped school at eighth grade and it’s been eight years, some things are hard to learn by myself." Khadr told Welner he also has read Ishmael Beah’s A Long Way Gone: Memoirs of a Boy Soldier, President Obama’s Dreams of my Father, Nelson Mandela’s Walk to Freedom, the Twilight series, and John Grisham and Danielle Steele novels. (From previous testimony in this case, we also know that Khadr is a young man who has told interrogators of his love of video games, car magazines, pizza, Coca-Cola, and McDonald’s.)
It’s clear from the past two days of testimony that the government witnesses are of questionable credibility, to say the least, and their determination that Khadr is a future danger contradicts everything we already know about him.
Of course if the U.S. had adhered to international juvenile justice standards and the U.S.- ratified Optional Protocol on the involvement of children in armed conflict since Khadr’s capture eight years ago, this bogus assessment of future dangerousness wouldn’t be a question. Khadr would have been held separately from adult detainees and enrolled in education, reintegration and rehabilitation programs, not abused and prosecuted by the discredited military commissions.
(Cross-posted Huffington Post and Daily Kos.)
Escape from Guantánamo by Plea Deal
01 year ago
Yesterday, Canadian detainee Omar Khadr pled guilty to all five charges against him, in an 11th-hour plea deal that averted the scheduled resumption of his military commission trial. Imprisoned since his capture in Afghanistan at age 15, Khadr has spent a third of his life in U.S. detention.
If Khadr’s trial had gone forward, it would have been the first military commission trial under Obama and only the second contested trial since Bush created the Guantánamo military commissions. Khadr’s conviction brings the total number of convictions in the military commissions to five, three of which were obtained through plea deals. It is not a track record to applaud: only five convictions in nearly nine years. In that time, over 400 defendants have been convicted of terrorism-related offenses in federal court.
After Khadr’s lawyer announced the guilty plea yesterday, the military judge asked Khadr a battery of questions about whether he understood the offenses he was admitting he had committed, going through the elements of each in rapid-fire legalese. Bearded and wearing a dark pinstriped suit, the 24-year-old toyed with his microphone and whispered “yes” to each of the judge’s questions. Khadr’s Canadian lawyer leaned over and appeared to be showing him a written script whenever it came time for him to answer the judge.
As part of the script, Khadr admitted that he shot and killed two Afghan soldiers who were killed in the firefight in which he was was the only captured survivor. Prosecutors have never introduced, or even claimed that they have, evidence to suggest that Khadr was responsible for the Afghan soldiers’ deaths. In July, Khadr rejected a previous secret plea deal because, he said, he wouldn’t admit to crimes he didn’t commit. It seems that yesterday he even admitted to a crime he was not accused of committing. Khadr also pled guilty to throwing the grenade that killed Sgt. Christopher Speer in the same firefight, an allegation that has been a part of the case all along.
Khadr pled guilty in exchange for a set sentence that will be made public after a jury of military officers — who don’t know the terms of the plea deal — sentences him. Khadr will serve whichever sentence is shorter, either the one under the plea agreement, or the one the jury sets. We do know that under his plea agreement, Khadr will serve one year more at Gitmo, on top of the eight he’s already served, then he can apply to serve out the rest of his sentence (rumored to be seven more years) in Canada. Starting today, the jury will hear victim testimony and mitigating evidence, in a sentencing hearing that may just be for show.
As part of his plea deal, Khadr waived his right to appeal. He also waived his right to sue the U.S. government for his abuse and detention at Guantánamo, and agreed to be interrogated by the U.S. government at any time over the year he remains in U.S. custody.
By agreeing to the plea deal, prosecutors avoided the years of legal appeals that can be expected in any military commissions case. In particular, prosecutors avoided having the military appellate court decide whether the invented war crimes Khadr is convicted of committing are illegal since they aren’t actually war crimes. (All five of the charges to which Khadr pled guilty yesterday—battlefield murder, attempted murder, conspiracy, material support for terrorism, and spying—are not war crimes under the laws of war. They were made up just for the Gitmo military commissions.)
Khadr’s Canadian lawyer, Dennis Edney, said yesterday, “He had to make a hellish decision. And he had to make it on his own to get out of Guantánamo Bay.”
Faced with an unfair system designed to produce convictions, not justice, it seems the only reliable way for Khadr to end his Guantánamo and military commissions nightmare was to plead guilty.
(Cross-posted to Daily Kos and Huffington Post.)
Khadr Accepts Plea Deal, Trial Averted
01 year ago
Earlier today, Omar Khadr pled guilty to all charges against him, averting a full-blown military commissions trial that was slated to restart today. A sentencing hearing will commence tomorrow. (But like Ibrahim al-Qosi before him, his actual sentence — reportedly one more year at Gitmo, and seven more to be served in Canada — has already been negotiated; the sentencing hearing will only matter if the jury delivers a sentence shorter than the one negotiated.)
Khadr is the youngest of Guantanamo’s remaining 174 detainees. Captured eight years ago at the age of 15, Khadr turned 24 since I was last here in August, when his trial was abruptly cut short by his lawyer’s collapse in court. Khadr is accused of throwing the grenade that killed Delta Force Sgt. Christopher Speer in a firefight in Afghanistan.
Over a week ago, reports surfaced a plea deal was in the works that would have Khadr serve a sentence of eight years, with one year to be served in isolation in Gitmo and seven years in Canada, on top of the eight years he’s already served. Such an arrangement requires the assent of the Canadian government, and an exchange of diplomatic notes, which occurred Saturday. On Friday, Hillary Clinton and Canadian foreign minister Lawrence Cannon discussed the Khadr case, but no more details about the rumored plea deal and diplomatic negotiations were made public.
On Friday, I flew here with 26 journalists, half of whom are Canadian, and four NGO observers also here to observe Khadr’s case. Also on board were several witnesses expected to testify at Khadr’s sentencing: Sgt. Speer’s widow, Tabitha; Layne Morris, the former National Guard soldier blinded in one eye by the grenade Khadr is accused of throwing; and psych experts for the prosecution and defense.
Also on the Pentagon flight was a State Department spokesperson, whose first-time presence is probably an indication of the Obama administration’s concern that this case, the first war crimes prosecution of an alleged child soldier since WWII, undermines U.S. legitimacy overseas.
Yesterday, when reporters asked Edney why Khadr might plead guilty, he said, "There’s not much choice." Edney added, "He either pleads guilty to avoid trial or he goes to trial, and the trial is not a fair process."
Indeed, the prospect of trial in the illegitimate military commissions system was an awful one. Khadr could have faced life imprisonment if convicted. Self-incriminating statements that were coerced out of him by interrogators at Bagram and Gitmo were to be used against him at trial. And under a new military commisions rulebook issued in the spring, he could not get credit for the eight years he has already served. Omar Khadr’s entire military commissions experience thus far has been a circus spanning several years, 11 lawyers, more than three arraignments, and multiple sets of rules since he was first charged in 2004. It has been plagued by legal and procedural problems since the beginning, and any result at trial would probably have been subject to years of appeals.
Despite today’s good news that a trial has been averted, Khadr’s case is emblematic of a set of fundamental flaws of the military commissions that won’t be resolved by a plea deal. These tribunals are simply incapable of providing fair trials, and they ought to be shut down altogether. Individuals accused of terrorism-related crimes should be prosecuted in federal courts. Those courts have shown over and over again that they are capable of delivering results that are both legitimate and seen as legitimate.
Khadr Trial Postponed, Plea Deal in the Works
01 year ago
by Suzanne Ito, ACLU
in Omar Khadr
Early yesterday afternoon, Muna Shikaki tweeted: "Al Arabiya BREAKING GTMO: SETTLEMENT REACH IN KHADR CASE in Guantánamo."
Needless to say, we were excited. We’ve been watching Omar Khadr’s case wind its way in and out of the military commission system for several years now as human rights observers at Guantánamo. A Canadian citizen, Khadr was only 15 when he was captured in a firefight in Afghanistan in 2002. He was sent to Guantánamo, where his torture and abuse is now well-known. And all this time, we’ve been calling for the government to drop the charges against this alleged child soldier and send him back to Canada.
The rest of the day was a flurry of follow-up tweets and stories from Shikaki and other seasoned Gitmo reporters, including the Toronto Star‘s Michelle Shephard, the Globe and Mail‘s Paul Koring and the Miami Herald‘s Carol Rosenberg, speculating about a plea agreement in the works between prosecutors, Khadr’s defense counsel, Lt. Col. Jon Jackson, and the Convening Authority.
By the end of the day, with no comment from the principal parties involved in negotiations, we only know that resumption of Khadr’s trial, originally scheduled for this coming Monday, October 18, has been stayed a week until Monday, October 25.
Jennifer Turner of the ACLU’s Human Rights Program, who was originally slated to be in Guantánamo for a four- to five-week trial, is now scheduled to return to Gitmo for only one week. We presume this means only a sentencing hearing is planned for, rather than a full-blown trial.
This is all to say, of course, that nothing is a done deal. All parties must agree to a plea, and Khadr himself has refused to a plea bargain in the past. There is also an issue of Canadian authorities accepting Khadr for repatriation.
Nevertheless, we remain optimistic. Khadr has now spent a third of his life at Gitmo. It’s time to send him home so he can be rehabilitated and reintegrated back into society.
Khadr Trial to Resume October 18
01 year ago
by Suzanne Ito, ACLU
in Omar Khadr
This week, the ACLU’s Jamil Dakwar is in Warsaw for the Organization for Security and Cooperation in Europe (OSCE) conference. The OSCE is the world’s largest regional security organization.
Today, Jamil moderated a session focusing on OSCE’s progress on a range of issues including the prevention of torture and protection of human rights while fighting terrorism.
In a statement the ACLU submitted to the OSCE yesterday on torture and human rights (PDF), we address the ongoing detention of Guantanamo detainee Omar Khadr, whose military commissions trial is slated to restart on October 18. In that statement, we note that it appears Khadr’s case was left in the military commissions system instead of being sent to federal court because the government’s case against Khadr is weak and he was tortured. The Obama administration likely chose to stick with the military commissions because it will be easier for the government to rely on questionable evidence, as well as to be better shielded from public scrutiny of past unlawful actions, in that questionable forum.
Khadr, an alleged former child soldier, was only 15 when he was taken into U.S. custody where he has now been for a third of his life. As we pointed out previously, the U.N. Special Representative on Children in Armed Conflict said Khadr’s trial sets a dangerous precedent that could endanger child soldiers around the world. She also said: "juvenile justice standards are clear — children should not be tried before military tribunals."
Despite this, Khadr remains at Gitmo, and his trial date approaches. Last month, Andy Worthington marked the occasion of Khadr’s birthday, writing:
No country that dares to call itself civilized should tolerate holding anyone as a prisoner in an experimental prison whose rationale — as formulated by the Bush administration — was to establish a policy of indefinite detention, and to facilitate coercive interrogations outside the scrutiny of the US courts. To do this to a child is unconscionable, and the very least the Obama administration, and the government of Stephen Harper, should do before Omar’s trial by Military Commission resumes on October 18, is to arrange for him to be returned to Canada, to begin filling in the blanks in those eight long and lost years of his life.
It isn’t too late for the U.S. to drop the charges against Khadr and send him back to Canada where he can be rehabilitated and reintegrated back into society. Or, if there are credible charges against him, he could be prosecuted in federal criminal court where international juvenile justice and fair trial standards apply.
The U.S. lost its moral compass when it imprisoned and tortured Omar Khadr eight years ago; we are even further from redemption if we allow his trial to proceed.
"Five Years of Kafkaesque Legal Shenanigans," One More Chance to Do Right by Omar Khadr
01 year ago
On Saturday, Alex Neve, Secretary General for Amnesty International Canada, wrote an op-ed in the Ottawa Citizen about the military commissions trial of Canadian citizen Omar Khadr. As we blogged earlier, Khadr’s defense attorney, Lt. Col. Jon Jackson, collapsed in court, and the trial was stayed for at least a month. (We later learned Lt. Col. Jackson’s illness was due to complications following gall bladder surgery last month.)
Neve sees this one-month stay as Canada’s last chance to end the "five years of Kafkaesque legal shenanigans" and bring Khadr home:
It is a delay that offers the Canadian government one last chance to do right by Omar Khadr. It also offers a chance to demonstrate to the world that we do in fact stand by the important international legal standards dealing with child soldiers that Canada was instrumental in developing.
To date we have heard nothing but silence and excuses from the government. The Federal Court and Federal Court of Appeal have both ordered the government to seek his repatriation. The Supreme Court has found that the Canadian government continues to violate his rights and that those violations must be remedied (by repatriation or some other means). UN human rights experts and agencies such as UNICEF have called on the U.S. government to abandon this trial and for Canada to seek his return.
Prime Minister Stephen Harper has defiantly refused to do so. It is a position that has become a source of both international puzzlement and national embarrassment. I was even asked by various soldiers stationed at Guantanamo why Canada seemed so indifferent to Omar’s fate.
It is an untenable position not worthy of our nation. But it is not too late to change it.
From the other side of the border, we’ve watched in horror as the U.S. government has charged towards the first prosecution of an alleged child soldier since World War II. The military judge has been holding scheduling conferences to determine when Khadr’s trial can resume. It’s full steam ahead once Lt. Col. Jackson is well enough to return to Gitmo.
So while it’s Canada’s last chance, it’s also a last chance for our country to do the right thing, too. Send Khadr back home to Canada.
The Gitmo Sentence Guessing Game
01 year ago
Before Omar Khadr’s trial ground to a halt last week, the sentencing hearing of 50-year-old detainee Ibrahim al-Qosi continued apace. Al-Qosi is the first detainee to be convicted in the military commissions under the Obama administration, in a plea deal in which he admitted to being an al Qaeda cook and occasional driver.
During the two days of sentencing hearings, everyone in the room other than the jurors knew that there had been a secret plea agreement capping the actual amount of time al-Qosi will serve at 10 years (two years in addition to the eight he’s already served). On Monday, the judge, Lt. Col. Nancy Paul, ruled that this true sentence would be kept secret until the military commissions’ Convening Authority approves it, at an unspecified date. The jurors were only given the enumerated charges to which al-Qosi had pled guilty, and had to set a formal sentence based on that information.
So what followed in the courtroom was a charade. The jury’s sentence was just for show. The true sentence was secret.
On Wednesday, Judge Paul ordered the jury to give a sentence of 12 to 15 years. There’s nothing in the military commissions rules manual empowering a judge to set a minimum sentence; it also never happened in the two cases that have gone to trial here at Gitmo. Prosecution and defense lawyers made arguments about why the sentence should be 15 or 12 years, respectively. The judge told the jurors that in determining the sentence, they could consider the amount of time al-Qosi has already served. (Under a new Obama administration rule enacted this April, the judge can’t give credit for time served — 8 years, 7 months, and 27 days in al-Qosi’s case.) After a brief deliberation, the jury returned a verdict of 14 years. Al-Qosi reportedly showed no emotion when the sentence was read. Not surprising, since he probably knew he’s headed in home in two years, not 14.
This charade was a win-win situation for the Obama administration. News articles with the headline "Al Qaeda Cook Gets 14 Years" were splashed across the Internet and print media, and the administration avoids criticism for sentencing their first convicted Gitmo detainee to only two more years in prison.
While an election-year charade that conceals a detainee’s true sentence may serves the administration’s political goals, it is galling from a president who promised transparency . Even the Bush administration didn’t conceal Salim Hamdan ‘s 2008 sentence of five months beyond time served.
The farce that was al-Qosi’s sentencing hearing brings to mind a hand-written statement that Omar Khadr read to the court in July, in which he announced that he had rejected a secret plea deal. He said the military commissions are not fair or seeking justice, but rather are
"…to accomplish political and public goal and what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only 5 years so I asked why the 30 years? I was told it make the U.S. government look good in the public eyes and other political causes."
Welcome to the Obama military commissions, where sentences are made secret to silence critics, and guilty pleas are secured with the threat that detainees won’t get credit for eight-plus years of pretrial detention if they go to trial.
I guess this is what passes for justice at Guantánamo.
(Originally posted on Daily Kos.)
Gitmo Justice
01 year ago
Friday morning, the first trial at Gitmo under President Obama was suspended because the defendant’s lawyer, Lt. Col. Jon Jackson, collapsed and had to be medevacked off the base for medical treatment. He’s been given 30 days’ convalescence leave. In a closed-door meeting in his chambers Friday, the military judge declared Omar Khadr’s trial on hold for at least 30 days. The scheduled hearing was cancelled and the jury was never brought back into court.
Because there was no public hearing, there’s no word yet on whether the judge will declare a mistrial or send the jurors home with instructions to stay away from press reports about the case for the next month or longer. Khadr’s case has been beset by delays and legal challenges over the five years he’s been before the military commissions. Khadr is the third detainee to go to trial since the prison that has held nearly 800 detainees was opened in 2002.
I was last here at Gitmo in July, for a hearing in which Khadr fired his civilian lawyers and Lt. Col. Jackson was appointed sole defense counsel. That hearing was a week after Lt. Col. Jackson underwent gall bladder surgery, and his collapse on Friday morning was reportedly due to complications from that surgery. It’s notable that the Pentagon provided Lt. Col. Jackson with only two military paralegals to assist him with the complex and historic trial, while the prosecution team includes four lawyers and around four paralegals.
That’s justice in the military commissions.
(Originally posted on Daily Kos.)
Reasonable Doubt
01 year ago
Opening statements began in the first trial under Obama’s military commisions yesterday, and the prosecution called their first two witnesses against Canadian Omar Khadr. The youngest of Guantanamo’s remaining 176 detainees, Khadr was captured in Afghanistan eight years ago, when he was 15 years old.
Khadr is accused of throwing the grenade that killed Delta Force Sgt. Christopher Speer. Sgt. Speer’s widow, Tabitha Speer, observed the trial today, dabbing her eyes with a tissue when witnesses described her husband’s mortal injury in the firefight that preceded Khadr’s capture.
More than 1,200 U.S. servicemembers have been killed in Afghanistan since 2001, but Sgt. Speer’s death is the only one being prosecuted as a war crime. In fact, this trial is the first prosecution in history for murder in violation of the laws of war (murder is not a recognized war crime; it is usually handled in domestic criminal courts).
Prosecutor Jeffrey Groharing said in his opening statement, "This trial is about holding an Al Qaeda terrorist accountable for his actions and vindicating the laws of war." Defense lawyer Army Lt. Col. Jon Jackson told the jury in his opener, "Omar Khadr did not kill Sgt. Speer. He has been waiting eight long years to tell you that. To tell somebody who can finally listen and who can finally make a difference." He said the only reason Khadr was in the compound where the firefight occurred was because Khadr’s father "hated his enemies more than he loved his son."
After opening statements, the Special Ops commander who led the assault on the compound (who can be identified only as Col. W because of a court order protecting his identity), testified about a report he wrote hours after the battle, in which he reported that one of his shooters killed the enemy who threw the grenade that killed Sgt. Speer. His report also noted that in addition to the enemy forces his men had killed, there was one wounded, Khadr. Years later, after an investigative team from the Guantanamo military commissions visited Col. W about the case against Khadr, he altered his copy of the report to indicate that the enemy who killed Sgt. Speer was "engaged" by the Special Ops shooter, not "killed."
A U.S. commando, identified as Sgt. Maj. D, also testified today that there were two individuals alive in the compound when the grenade that killed Sgt. Speer was thrown. He said that after the grenade came from an alley, he shot and killed an adult male in the alley, then shot another sitting with his back to him — Khadr.
None of this testimony is news to those who have followed the case, as these factual issues were raised in pretrial hearings long ago. Given the reasonable doubt cast by today’s evidence — not to mention Khadr’s age at the time the alleged crime was committed — it is hard to fathom why this case was chosen as the first test case of the Obama-era military commissions.
The first day of the trial ended abruptly when, while cross-examining Sgt. Maj. D, Khadr’s defense lawyer collapsed. Lt. Col. Jackson had asked for a momentary pause, stood at attention until the last juror filed out of the courtroom for a five-minute recess called by the judge, and collapsed. The first to come to his aid was the case’s chief prosecutor, Jeffrey Groharing, who kneeled down and loosened Lt. Col. Jackson’s tie. He was taken out of the courtroom on a stretcher.
Lt. Col. Jackson is the lone defense attorney for Khadr; he is up against four prosecutors who are trying the case. It is unclear what his prognosis is, and how it will affect the trial schedule, but it is inconceivable that the case could continue without Khadr’s sole lawyer.
(Originally posted on Daily Kos.)