Gitmo War Court Back in Business
By Carol Rosenberg, The Miami Herald
Nov. 9–GUANTANAMO BAY NAVY BASE, Cuba — Canadian captive Omar Khadr’s war crimes trial sputtered to a new start Thursday — with no plea, no evidence and the explosive disclosure that the defense had learned of a top secret U.S. eyewitness who could help their client’s case.
Khadr, 21, appeared at his military commissions with fuzzy sideburns, his hair tied up in a black stocking cap and the white prison camp garb of a cooperative captive.
He agreed to let a U.S. Navy officer defend him, answering politely “yeah” and “no” to the judge’s questions. Then he elected not to enter a plea on charges that included murder in the 2002 grenade killing of a U.S. Delta Force medic outside of an alleged al Qaeda compound in Afghanistan.
Word of the secret evidence trickled out after Army Col. Peter Brownback, a military judge, recessed the trial at least until December.
The Pentagon’s deputy defense counsel, a retired Army lawyer named Michael Berrigan, rushed to the media room ahead of Pentagon briefers to say that the prosecution had only Tuesday night notified the defense of a key piece of information:
Berrigan described it as “potentially exculpatory evidence” — still classified as an intelligence secret — from an eyewitness that could prove that Khadr, 15 at the time of the firefight, was not an “unlawful enemy combatant.”
His status could be critical because, absent the classification, Khadr could be considered an ordinary prisoner of war who was captured during the U.S. invasion of Afghanistan after the 9/11 attacks.
The military says it assaulted a suspected al Qaeda compound in July 2002, and Khadr tossed a grenade from inside that killed Sgt. 1st Class Christopher Speer, 28, and maimed another U.S. soldier.
The crux of his alleged war crime was that he had no right to engage in combat — as an illegitimate member of an unlawful fighting force. Moreover, he is charged with spying on U.S. forces, providing material support for al Qaeda as a terror group and conspiracy.
“Who knows how much other exculpatory evidence is out there behind the black curtain?” said Navy Lt. Cmdr. William Kuebler, Khadr’s Pentagon appointed defense attorney.
He said the case prosecutor, Marine Maj. Jeffrey Groharing, told him about the eyewitness Tuesday night after the Pentagon prosecution team arrived on this remote base in southeast Cuba.
In reply to a query of how an eyewitness could be discovered five years after Khadr arrived at Guantanamo, a Pentagon statement said: “As evidence becomes available the prosecution will provide the defense as required.”
Kuebler would not name the witness, saying the details of why he could help clear his client were so far classified as military intelligence secrets. But he said the witness worked for the U.S. government at the time — and saw the firefight.
Americans in rural eastern Afghanistan at that time likely included the Utah National Guard, the 82nd Airborne, the Delta Force from Fort Bragg and CIA agents.
What was especially remarkable about the disclosure is that it came after a two-hour session in the Pentagon’s third attempt to arraign the Toronto-born scion of a fundamentalist Muslim family that moved to Afghanistan and sometimes celebrated Islamic feasts with Osama bin Laden and his family prior to the 9/11 attacks.
A June 2006 U.S. Supreme Court ruling of Military Commissions as unconstitutional upset the first bid for a trial. Then this summer the judge, Brownback, dismissed charges against Khadr because Pentagon panels had failed to find him an “Unlawful Enemy Combatant,” and merely designated him as an “Enemy Combatant,” a broader category not covered by Congress’ 2006 Military Commissions Act.
Thursday, they were back in court because a military appeals court threw the question back to Brownback. It ruled that the Army colonel could hold a hearing to decide whether Khadr meets Congress’ definition of unlawful enemy combatant — which covers al Qaeda or Taliban members who engaged in hostilities against the United States or its allies.
At the request of Khadr’s defense team, Brownback chose to delay the issue until after other challenges to the case. But none of the men disclosed the newly discovered evidence inside at the war court.
A Human Rights Watch attorney here as an observer cast the revelation as “totally outrageous” — especially because the case prosecutor asked to show a video and press forward with other portions of his case, before the defense had time to examine the newly unearthed evidence.
“Anyone who has ever gone to law school knows the fundamental legal and ethical rule: the prosecution cannot withhold exculpatory information from the defense,” said Jenifer Daskal, the Human Rights Watch advocacy director.
Khadr’s lawyer said Canada should ask for his client’s return to the nation where his mother, sister and brothers live — and decide whether to put him on trial.
“If he were anyone else, we would call him a child soldier” deserving of “rehabilitation, sympathy and compassion,” said Kuebler.
Khadr’s father, Ahmed Said, was killed in October 2003 when Pakistani security forces attacked an alleged al Qaeda hideout in North Waziristan. By then, Khadr had turned 16 in U.S. custody and had been transferred to the interrogation and detention center here.
The hearing itself included a process called “voir dire,” in which lawyers question the prospective judge about possible conflicts that could disqualify him from serving at the trial.
Brownback, who returned to military service from retirement and a job as a census enumerator, has been a commissions judge since the first effort began in August 2004.
Kuebler asked him to excuse himself, in part because he said the retired colonel was too invested in it succeeding — even as the defense would challenge the war court’s legitimacy. Defense lawyers and critics argue that commissions do not provide the protections of established U.S. civilian and military justice.
History would decide, Kuebler said, whether the Guantanamo war court was “an exceptional historic moment . . . or a failed legal experiment that we are all going to want to forget.”
Independent legal observers permitted by the Pentagon to speak to the media afterward took particular exception with Brownback’s defining al Qaeda, in response to a defense query, as “an organization dedicated to the spread of Islam.”
Amnesty International’s Jumana Musa said his remark reflected “an underlying prejudice” because “everyone on this planet has known since Sept. 11 [2001] that it is a terrorist organization — and he perceives it to be an organization that is recruiting people to Islam.”
The hearing for the first time also featured three special guest observers, all former American soldiers, flown in by a Pentagon Public Affairs unit and equipped with special access passes.
After watching the two-hour arraignment, Heritage Foundation research fellow James Jay Carafano, a retired Army lieutenant colonel, declared: “The American people had a good day today. What I saw in there was a process the way I think it’s supposed to work.”
A New York journalist asked Veterans of Foreign Wars vice president Glen Gardner Jr., a Vietnam era Marine sergeant, whether criticisms of the process were justified.
“I don’t think the proceedings I saw this morning was a kangaroo court,” he replied.
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