Omar Khadr. Is There a Path to Justice

A week of the military commission trial in the case of the United States vs Omar Khadr has just wrapped up.  And no one would have ever predicted where we’ve ended up.

When the week began, there were a multitude of doubts as to whether things were going to go ahead.  It was not certain whether Omar, who had dismissed his 2 US civilian lawyers last month, was going to recognize his assigned military lawyer, Lt-Col Jon Jackson, or whether he would instead decide to represent himself.  It was unclear whether Omar would even attend the proceedings, choosing instead perhaps to boycott the trial .  There were unresolved legal questions as well, none more important than whether the judge would allow the prosecution to admit into evidence a number of confessions and statements Omar gave during some of the more than 100 interrogation sessions he was subject to at Baghram Air Base in Afghanistan and then here at Guantánamo in 2002 and 2003.  It is clear that those statements were either directly or indirectly the result of torture and other ill-treatment.

As the week ends, however, what was expected to be a trial that would last between 4 and 6 weeks has been recessed for at least 30 days.  Omar’s lawyer, Lt-Col Jackson collapsed in court late in the day on August 12, while he was in the process of cross-examining the second witness called by the prosecution.  It is thought to be related to gall bladder problems.  Fortunately it is not life-threatening and clearly everyone’s primary concern is that he receive the treatment he requires.  

It is not at all clear yet what it means for the trial.  There are, for instance, obvious questions about the status of the jury, known as a “panel “in the military commission process.  Is it reasonable to expect that over the coming month, as they return to their regular postings and personal lives, they will be able to keep at bay media coverage and conversations that may touch on all of the high-profile issues at the heart of this trial: Guantánamo Bay, al Qaeda, military commissions, treatment of “war on terror” detainees, Afghanistan, and more?   Or are we looking at the likelihood that a new panel will have to be selected when the trial resumes?

For this to have happened in any case it, of course, had to be Omar’s.  There is such tragic irony to it.  He has endured every delay and screw-up imaginable in the many years he has been lost in the labyrinth of injustice here at Guantánamo.  Of course there had to be another.

In between the uncertainty at the beginning of the week and the uncertainty at the end – much has happened.  The judge did rule on many of the outstanding legal motions, some of which have been pending for months.  Most disconcerting was his quick (delivered in under 90 seconds) decision that all of the statements and confessions taken from Omar can be entered into evidence.  He gave no reasons – he says those will come later.  It certainly left a sour, though sadly not unexpected, taste of how casually concerns about torture and ill-treatment are taken in the military commission process.

The jury selection process was fascinating and offered perhaps one of the only positive developments Omar has experienced here.  After the 15 possible panel members had gone through group and individual questioning by both sides over a span of two days, the prosecution sought to exclude 3 and the defence 7.  The prosecution succeeded in one of their requests, but only because the defence agreed.  They then had to use their only peremptory challenge, sort of a “free pass” (each side has one), to exclude one other.  The defence succeeded in 5 of their challenges and used a peremptory challenge for the sixth.

Gone was one very forthright Army Lieutenant Colonel who laid out his concerns that Guantánamo Bay had eroded US moral authority in the world.  He highlighted various concerns about the system in place here, including lengthy detention without charge, charges being brought which had limited legal precedent, and the admissibility of information obtained under torture.  He spoke of his concerns about the positions that former White House Counsel and US Attorney General Alberto Gonzales had taken on the handling of detainees and interrogation methods.  Ultimately he repeated several times that he supported President Obama’s position that it would be best to close down the Guantánamo detention facility.

The prosecution was vehement in laying out their case for why this Lieutenant Colonel should be excluded.  He was accused of disloyalty for his criticism of Alberto Gonzales.  He was described as having a hostile attitude towards the government.  And he was repeatedly chastised for having said that he “agreed with the President” when it came to Guantánamo Bay, for which he was accused of clearly being biased against the government.  One was left wondering just who the prosecution thinks the government is.  It was he who the prosecution excluded with their peremptory challenge.

The prosecution and defence each then made their opening presentations to the panel of 7 remaining officers.  The prosecution insists that Omar very deliberately and intentionally conspired with other members of al Qaeda to kill as many US soldiers as possible and was responsible for throwing a grenade that killed a US soldier during a firefight on July 27, 2002.  They assured the panel that all of the interrogations being relied on during this trial were friendly, engaging conversational affairs and all resulting statements were freely and voluntarily given. 

The defence talked of a scared boy who found himself in a compound with three “bad men” when the firefight erupted – and that he was injured, blinded, and bleeding during the attack but did not throw the grenade.  They highlighted the torture and mistreatment Omar was subject to, including at the hands of his first interrogator who, while Omar was in a stretcher, angrily threatened him with being sent off to a US prison to be raped and killed by “big black men and Nazis”. 

The defence, of course, stressed the importance of taking into account the fact that Omar was only 15 years old when all of this happened.  The prosecution never mentioned it.

There were many poignant and touching moments.  On the first day of jury selection, Omar’s Canadian lawyer, Dennis Edney, noticed a suit hanging in a room in the courthouse building and made a spontaneous decision to dress Omar up!  He walked into the courtroom that day with such a warm, proud and somewhat bashful smile.  It was a reminder of his youth and of all of the little things in life he has been cheated of, such as wearing a suit for the first time.

As well, the widow of Sgt. Christopher Speer, the soldier killed by the grenade during the firefight was present here for the first time. At various points she was teary-eyed, such as when she listened to one witness describe the pep talk he gave to Sgt Speer while he lay on the ground bleeding, urging that he “live for his wife and kids.”

And then there was defence lawyer Lt-Col Jackson’s heartbreaking description of the role that Omar’s father played in all of the events and circumstances that led a 15 year old boy from Canada to even be in the middle of a firefight in Afghanistan in the first place.  As he put it:  “Omar’s father hated his enemies more than he loved his son.”

So now we break for at least a month.  Could it be one last ditch opportunity for some long overdue justice in this case.  An opportunity for the US and Canadian governments to agree to a resolution that would see him repatriated to Canada?  That would be sensible and responsible.  Given the Canadian government’s limitless intransigence when it comes to Omar Khadr it would seem highly unlikely.  But we should, nevertheless, still press that demand.  Omar Khadr’s rights, at long last, must be protected.

Alex Neve is a lawyer, with a Masters Degree in International Human Rights Law from the University of Essex in the United Kingdom. He has served as Secretary General of Amnesty International Canada’s English branch since 2000. In that role he has carried out numerous human rights research missions throughout Africa and Latin America as well as within Canada.