Military hiding evidence that could clear Khadr: lawyer

These military courts are kangaroo courts in the first place. Khadr's own military lawyer summed the matter up succinctly:
"This is a process that's not designed to be fair; it's is designed to produce convictions," said Mr. Kuebler. "My ultimate hope is that Canada, like Britain, like Australia, like every other western country, will finally (understand) that this process in Guantanamo Bay is an affront to the law, is an affront to basic human rights, and that they will take Omar home to face due process in a legitimate system."
There is little hope that Canada will do anything with the likes of Stephen Harper, and Stockwell Day involved. At least Day did not go along with Gonzales et al on Arar but I doubt that he will do a thing about Khadr even though Khadr is a Canadian citizen and other countries have intervened when their citizens have been involved. Harper and Day don't want to be seen as soft on terrorists or even question what is a legal farce.


Thursday » November 8 » 2007

Military hiding evidence that could clear Khadr: lawyer

Sheldon Alberts
CanWest News Service


Thursday, November 08, 2007


U.S. NAVAL BASE GUANTANAMO, Cuba -- Lawyers for Omar Khadr alleged Thursday that U.S. military prosecutors have a mystery eyewitness who can prove the Canadian terrorism suspect is not an "unlawful enemy combatant" -- a dramatic development that could again derail Pentagon efforts to try Khadr as a war criminal.

At a news conference following Mr. Khadr's arraignment on murder charges at this American military base, defence attorneys said the witness is a U.S. government employee who was present at the July, 2002 firefight in Afghanistan where Khadr was captured.

"This is not something that just came to their attention. It is something that was buried because no one ever looked," said Lt.-Cmdr. William Kuebler, Khadr's U.S. military lawyer.

"Our question is: How much other exculpatory evidence is out there behind the black curtain that we can't see?"

Defence attorneys said the lead prosecutor in Khadr's case, Marine Corps Maj. Jeff Groharing, informed them just two days earlier of the existence of a witness who could have "exculpatory evidence" that debunks the Pentagon's claim that the Canadian was illegally fighting American troops.

The still-classified evidence is potentially crucial because U.S. law says only "unlawful enemy combatants" can be tried under the current system of military commissions, established by President George W. Bush and Congress in 2006.

The Military Commissions Act defines an unlawful enemy combatant as a member of the Taliban or al-Qaeda who was "engaged in hostilities or who has purposefully and materially supported hostilities against the United States."

Mr. Khadr is charged with murder for allegedly throwing a grenade that killed army Sgt. Christopher Speer during a firefight near Khost, Afghanistan. Mr. Khadr, then 15, was seriously wounded during the battle with U.S. special forces. He faces additional charges of attempted murder, spying, conspiracy and providing material aid for terrorism.

Mr. Khadr, who has been held at the U.S. military prison at Guantanamo since the fall of 2002, exercised his right to defer entering a plea to the charges.

Military prosecutors declined requests to speak to reporters about the defence team's claim.

"They are going to do their talking in the courtroom," said Lt.-Cmdr. Rick Helmer, a spokesman for the Pentagon's Office of Military Commissions.

Defence attorneys have long complained the legal deck is stacked against Mr. Khadr because of commission rules that hamper their ability to learn of evidence in the possession of prosecutors.

"He has been in custody for how long? Coming up on six years?" said Mike Berrigan, the deputy chief defence counsel for the military commissions. "How we can be on the eve of a hearing to determine (Mr. Khadr's) status, and how we can have newly discovered evidence, is beyond me."

The latest legal twist came as Pentagon prosecutors sought to introduce a videotape they claim shows Mr. Khadr making and planting roadside bombs in Afghanistan.

Army Col. Peter Brownback, the military judge presiding over Khadr's case, refused to allow the tape to be shown, denying prosecutors a public relations coup.

"It is totally outrageous that the prosecution would try to push ahead with a hearing on whether or not Mr. Khadr was an unlawful enemy combatant, while all the time withholding from the defence potentially exculpatory information," said Jennifer Daskal, the senior counter-terrorism counsel at Human Rights Watch, who was an observer at Thursday's hearing.

"Anyone who has ever gone to law school knows the fundamental legal and ethical rule: The prosecution cannot withhold exculpatory information from the defence."

It was Mr. Khadr's first appearance in a Guantanamo courtroom since June, when Mr. Brownback threw out all charges against the Canadian -- a decision later overruled by a military appeals court.

On Thursday, Mr. Khadr entered the court wearing the white prisoner's uniform given to detainees who are considered "highly compliant" with prison rules.

Mr. Khadr wore a mutton-chop beard and smiled on several occasions at lighthearted comments made by Mr. Brownback.

Asked whether he wanted to be represented by his U.S. military attorney, Mr. Khadr replied: "Yes, sir." At past hearings, Mr. Khadr had expressly refused American legal representation.

Mr. Khadr's lawyers have been trying, unsuccessfully so far, to persuade the Canadian government to intervene with the Bush administration on his behalf. They contend that, after more than five years of false starts and international controversy, the Pentagon is pressuring prosecutors and judges to deliver convictions of Guantanamo detainees.

"This is a process that's not designed to be fair; it's is designed to produce convictions," said Mr. Kuebler. "My ultimate hope is that Canada, like Britain, like Australia, like every other western country, will finally (understand) that this process in Guantanamo Bay is an affront to the law, is an affront to basic human rights, and that they will take Omar home to face due process in a legitimate system."

The U.S. Supreme Court ruled an earlier version of the military commissions violated international and U.S. law.

Mr. Brownback stirred controversy Thursday when he told the court he did not believe the earlier tribunals were illegal.

The judge also acknowledged he "took heat" from senior Pentagon officials for his June ruling to dismiss charges against Mr. Khadr. But Mr. Brownback told defence attorneys he was never directly reprimanded for the ruling, which temporarily threw the Bush administration's war crimes tribunals into chaos.

"I feel certain that I never (heard complaints from) anyone who has influence over me," Brownback said.

Mr. Kuebler said he believed Mr. Brownback had been subject to "inappropriate external influences" and was "too personally invested in the military commissions process."

But Mr. Brownback rejected defence claims he could not fairly preside over the trial.

"I find I am qualified," said Mr. Brownback.

To date, the Bush administration has only won one conviction of a Guantanamo detainee. Australian David Hicks pleaded guilty and was sent home to serve a nine-month sentence after Prime Minister John Howard intervened on his behalf with Vice-President Dick Cheney.









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