Last-Minute Evidence, Legal Debate Delay Case on Canadian Detainee

By Donna Miles
American Forces Press Service

Nov. 8, 2007 - The case against a Canadian detainee accused of killing a U.S. soldier in Afghanistan and supporting al Qaeda took another strange twist today when the judge delayed the proceedings to give the defense team time to review last-minute evidence likely to favor the defendant. Army Col. Peter Brownback arraigned Omar Ahmed Khadr here today on charges of murder, attempted murder, conspiracy, supporting terrorism and spying. Khadr, who sat in the courtroom in a white detainee uniform with his hair tucked up under a black skull cap, waived the right to raise motions or enter a plea to the allegations.

Brownback had been expected to rule today on Khadr's status -- specifically, to determine if he is considered an "unlawful enemy combatant." As Marine Corps Maj. Jeffrey Groharing, the lead prosecutor, pushed Brownback to make that ruling, the defense team urged a delay until after legal challenges to the military commission's legitimacy are resolved.

Brownback said that unless the defense makes a motion to dismiss the case, proceedings against Khadr will continue. But instead of moving forward today, he gave the defense team more time to review the new evidence. He set Dec. 7 and Jan. 11 deadlines for filing new motions and recessed the proceeding just over two hours after beginning today's session.

The judge and lawyers are expected to meet tomorrow to set a trial date, but Navy Lt. Cmdr. William Kuebler, the lead defense attorney, said it's still far too soon to set that timetable. "We're not at a point today that we can seriously talk about a trial date," he said.

The big issue today -- one that wasn't shared with reporters until the defense team talked with them after today's session -- is that the defense received potentially exculpatory evidence just two days ago. Exculpatory evidence is considered favorable to the defendant in a criminal trial.

Kuebler told reporters a U.S. government employee was an eyewitness to events that could prove Khadr isn't an unlawful enemy combatant. Kuebler declined to share more specifics, saying he hadn't had the opportunity to talk with the eyewitness himself or even to see the evidence firsthand.

Another complicating factor is that the eyewitness is not here in Guantanamo Bay and that the evidence involved is still under review to determine if it's classified.

Kuebler expressed dismay today that the prosecution had provided the information only after arriving here at Guantanamo Bay late Nov. 6. However, he said he has no reason to believe the prosecution team had previous knowledge of the eyewitness or had intentionally waited until the 11th hour to share that information.

His bigger objection was the fact that the judge and the prosecution wanted to move forward with Khadr's case without giving the defense team time to review the new evidence.

Kuebler said it demonstrates the political pressure the Defense Department is under to move on with the commission process. "It's a sign of the desperation," he said.

Kuebler opened today's proceedings by challenging Brownback's suitability to oversee the case, claiming the judge is "too personally invested" in the commission process and his personal reputation is too pinned to its outcome. Brownback dismissed Kuebler's challenges and continued with the proceedings.

The issue of Khadr's status has been in question since a combatant status review tribunal concluded in September 2004 that he was an "enemy combatant" without designating him an "unlawful enemy combatant."

Brownback noted the discrepancy in June during what was expected to be a routine arraignment and threw out all charges against Khadr on the basis that the commission had no authority to try him. Brownback argued that the Military Commissions Act makes strict distinctions between enemy combatants who fight for legitimate armed forces, and unlawful enemy combatants, who don't.

Today Brownback said the U.S. Court of Military Commission Review's September 2007 decision that reversed his June ruling and reinstated charges against Khadr means the case can move forward.

Earlier this week, the U.S. Court of Appeals for the District of Columbia Circuit made a similar finding, rejected Khadr's appeal.

Kuebler said today he agrees with Brownback's initial finding and disagrees with the appellate court's decision to overturn it.

Kuebler said he wouldn't be doing his job if he didn't fight to ensure his client gets a fair trial. "We're not saying set Omar free," he said. "But we're saying, 'Give him a fair trial.'"

Khadr is accused of lobbing a grenade during a firefight near Khost, Afghanistan, in July 2002 that killed Army Sgt. 1st Class Christopher Speer and cost former Army Sgt. Lane Morris an eye. Khadr, now 21, was 15 at the time.

He was captured during the firefight at an al Qaeda compound and has been detained at Guantanamo Bay since late 2003. Khadr was born in Toronto, the youngest in a family that has been called "Canada's family of terror" and allegedly had close personal ties to al Qaeda and Osama bin Laden.

His father, Ahmad Khadr, moved the family in 1990 to Pakistan, where he rose to become a senior al Qaeda lieutenant, according to background information included in the charges filed against Omar Khadr. The senior Khadr was imprisoned in Pakistan for providing funds to support the bombing of the Egyptian Embassy in Pakistan and moved the family to Afghanistan in 1996 after his release, documents show.

The Khadr family allegedly traveled extensively through Afghanistan and Pakistan through 2001. Documents reveal that their travels gave Omar Khadr the opportunity to meet bin Laden and other key al Qaeda leaders at bin Laden's compound, as well as al Qaeda training camps and guest houses.

The senior Khadr died during a 2003 shootout with Pakistani forces, an incident that put another son operating with him for al Qaeda in a wheelchair. But before his death, he put his son Omar on the path to follow in his footsteps.

Charges against Omar Khadr allege he began his own al Qaeda training in the summer of 2002, getting private instruction in the use of rocket-propelled grenades, rifles, pistols, grenades and explosives. He joined a team of other al Qaeda operatives to apply his new knowledge converting landmines into remotely detonated improvised explosive devices and planting them where U.S. forces were known to travel.

Groharing told the court today the prosecution plans to include in its evidence against Khadr a videotape showing him making and planting mines.