Omar Khadr's defence lawyer Lt Col Jon Jackson in the media hangar. © Amnesty International
By Alex Neve, Secretary General of Amnesty International in Canada, who will be observing the military trial of Omar Khadr.
In a case that has moved so slowly for so long – it is now nearly five years since Omar Khadr was first charged under the Bush administration – much happened during the first day of his military commission trial here at Guantánamo, both expected and unexpected. Proceedings began with opening statements from the prosecution and defence. They ended in drama when Omar Khadr’s military lawyer, Lieutenant Colonel Jon Jackson, collapsed in court late in the afternoon while cross examining a witness. He was taken to hospital by ambulance and as I write it is uncertain when the trial will resume.
Earlier the commission heard from two prosecution witnesses and viewed a video that US forces had retrieved from the compound in Afghanistan where the firefight took place that is at the heart of the case against Omar Khadr. It is there that, as a 15-year-old, he is alleged to have thrown a grenade that fatally wounded a US soldier, Sergeant Christopher Speer. Among those present in the courtroom today, for the first time, was the widow of Sgt Speer.
For the prosecution, Jeffrey Groharing began by wheeling in a scale model of the compound where the firefight took place. He alleged that Omar Khadr had told one of his interrogators that he was a “terrorist, trained by al-Qa’ida” and that what he was most proud of was carrying out attacks against Americans. He alleged that Omar Khadr had deliberately decided to conspire with members of al-Qa’ida to kill as many US soldiers as possible. When it came to the question of statements and confessions obtained during the teenager’s interrogations at the US air base in Bagram in Afghanistan and subsequently in Guantánamo, the prosecutor insisted that they were the result of friendly conversations between the detainee and his interrogators and that all were freely and voluntarily given. He made no reference to Omar Khadr’s young age when these interrogations took place.
In his opening statement for the defence, Lt Col Jackson portrayed Omar Khadr as a scared child in the company of “three bad men” on 27 July 2002 when the firefight occurred. He blamed Omar Khadr’s late father for the fact that Omar Khadr was there in the first place, adding that “Omar’s father hated his enemies more than he loved his son”. [Editor’s note: Members of the Khadr family, including Omar, are believed to have moved to Afghanistan when he was 11 years old. According to the Miami Herald on 12 August 2010, the prosecutor said in his opening statement that Omar Khadr had grown up in a family of “radical Islamists” and had “even lived with Osama bin Laden in an al-Qa’ida compound in Afghanistan”].
Lt Col Jackson asserted that “Omar Khadr did not kill Sergeant Speer” and that it was another man who was also still alive after US airstrikes against the compound who had thrown the grenade. On the question of interrogations, Lt Col Jackson highlighted the way Omar Khadr was treated in Bagram by his first interrogator, who questioned him while he was still in a stretcher, recovering from his serious injuries, and effectively threatened him with being raped and killed by “big black guys and Nazis” in a US prison.
The rest of the day was spent hearing from two prosecution witnesses, Colonel W and Sgt-Major D, both of whom had been involved in the 27 July 2002 firefight. Colonel W had ultimate command and Sgt-Major D is the officer who shot and killed the other man who was still alive in the compound at the end of the firefight and also shot Omar Khadr, twice, in the back. Both officers gave vivid testimony describing how the fighting unfolded, including highly charged moments such as when Sgt-Major D described holding Sgt. Speer’s hand as he lay bleeding from the shrapnel wound that ultimately took his life and urged him to live for his wife and children.
Neither Colonel W or Sgt-Major D actually saw Omar Khadr throw the grenade but testified they believed it had been him. Sgt-Major D’s account of shooting Omar Khadr (who he said he saw sitting facing away from him) in the back certainly raises questions. Inconsistencies appeared, too, between Colonel W’s testimony and the initial written report he had filed about the incident, which he further admitted he had changed some years after the events. The first report, written hours after the fighting, said that “one badly wounded person threw the grenade and was later killed.” Omar Khadr, however, obviously survived. Colonel W then laid out how he revised his own personal copy of that report, some two or three years later, changing the word “killed” to “engaged.” He indicated that the first report had been based on his mistaken assumption that Omar Khadr, who he had been told was unlikely to survive, had in fact died. He said that when he realized the error, he made the correction.
The prosecution also showed a video that US forces had recovered from the compound some 30 days after the firefight. The video is a hodge-podge of images, some with conversation, others not, and included depictions of the making of improvised explosive devices (IEDs) and planting IEDs on a roadway. Omar Khadr appears in some of the images – which the prosecution argues is proof that he conspired with other al-Qa’ida members. At the same time the video underscores Omar Khadr’s young age at the time and shows a teenager apparently eager to please the adults he was with.
But the dominant concern as the day ended was that of Lt-Col Jackson’s health. It is virtually certain the trial will not continue on Friday, as he has been hospitalized overnight. Depending on the results of medical tests, proceedings might resume on Monday. If he needs to be transferred to the mainland for treatment, an adjournment of at least several weeks is inevitable.
Post script, 13 August 2010
It was announced on Friday morning that Lt-Col Jackson has been transferred to the US mainland and that there will be a minimum 30-day delay in the trial.
Amnesty International will be urging the US authorities to use this development to abandon Omar Khadr’s military commission trial once and for all, and to resolve the Omar Khadr case in accordance with international human rights standards. The Canadian authorities should do what they have so far failed to do – seek Omar Khadr’s repatriation.
Follow Alex Neve’s updates throughout the Omar Khadr trial on Amnesty International Canada’s website
Even if Khadr somehow managed to accurately toss a grenade over his shoulder with his eyes full of shrapnel while facing in the opposite direction, having been wounded in a massive bombing attack (see the report from the soldier – OC-1), since when is killing or attempting to kill enemy soldiers in the course of a battle during a war a “war crime”, especially when the country in which you live is invaded by a foreign army?
The answer to that question is since George Bush so decided and his advisors, probably the same ones who managed to “legalize torture”, distorted the international laws of war to make it one. They argued that because their enemies in Afghanistan fought with irregular armed groups, as opposed to state armies (and not even the Taliban were considered qualified as a state army) and didn’t wear recognized uniforms as such, they are not commonly entitled to POW status according to the Geneva Conventions (but an argument could be made for those like Khadr responding to a foreign invasion prior to the full functioning of the new Afghan government). That somehow was interpreted to mean such people are automatically guilty of war crimes, just for fighting against the US in a war. At least its interpreted that way for Omar Khadr, although we haven’t heard of thousands of other such insurgents being charged in the deaths of thousandsd of US or allied soldiers. According to Lt Col. (ret.) David Frakt (see his article on Khadr and the Military Commission Manual at the Huffington Post) three military judges have rejected the ludicrous notion of the so-called “status war crime” as not being consistent with international law. But, on the eve of the resumption of the Khadr trial earlier this year the Defence Department rushed out a new Manual containing a comment that a person can violate the laws of war without violating international laws of war. Presumably their intention is to convict Khadr of violating some American law of war, as might have been used against civilian southerners who took up arms in the civil war, for example. Another precedent they like refers to Germans who came to the US during WWII to attempt sabotage. How such a domestic US “law of war” can possibly apply to people fighting its troops in their own country on the other side of the world remains to be seen. Khadr, btw, is a Canadian citizen because he was born here, but his parents raised him mainly in neighbouring Pakistan, then Afghanistan. He attended only one year of school in Canada, grade one.