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GUANTANAMO BAY NAVAL BASE, Cuba — Omar Khadr's pretrial hearings at Guantanamo Bay resumed Wednesday with the Canadian's defence team once again testing the extent to which the military commission is prepared to grant Mr. Khadr certain requests based on his age at the time of his capture.
Lieutenant-Commander Bill Kuebler, Mr. Khadr's U.S. military defence lawyer, asked the court to allow the defence to produce testimony from an expert on false confessions made by juveniles – a request the government doesn't appear to oppose. However Lt.-Cmdr. Kuebler said the expert's testimony would be "merely abstract" if it were not based on psychological assessments of Mr. Khadr made by two other experts the defence wishes to allow to interview Mr. Khadr.
The prosecution objects to this second request, saying that government psychologists and psychiatrists are more than sufficient to conduct an examination of Mr. Khadr.
Lt.-Cmdr. Kuebler countered that Mr. Khadr had previously been interviewed by government experts, but they were only interested in manipulating the client for the purposes of extracting information from him. Given that Mr. Khadr was 15 at the time of his capture in 2002, his case is unique and the request for an independent psychological examination should be granted, the defence lawyer said.
The argument over whether non-government experts should be allowed to examine Mr. Khadr kicked off pre-trial hearings that are expected to continue through much of Wednesday and Thursday afternoon.
Much of the argument surrounding Mr. Khadr's potential psychological and psychiatric assessment revolves around the defence's contention that their client made certain statements during abusive interrogation and detention conditions. Major Jeff Groharing, the lead prosecutor on the Khadr case, rejected those allegations, adding that the government's case includes more than just the statements made by the accused.
Major Groharing said that although Mr. Khadr made statements that he helped build and plant improvised explosive devices, and wanted to "kill U.S. forces," the government also has other evidence. That evidence includes videotapes of Mr. Khadr making explosives, as well as eyewitness testimony, Major Groharing added.
The prosecution lawyer also said that bringing in the defence's experts would cost $60,000, an expense the U.S. taxpayer should not have to pay, given that government-employed experts could conduct the same examinations.
Mr. Khadr appeared in court alongside his Canadian lawyer, Dennis Edney. Mr. Edney does not have full standing as a lawyer before the military commission, but has been allowed to attend the proceedings. The Canadian lawyer has a long history of representing members of the Khadr family. He and Mr. Khadr sat at one end of a courtroom table, Lt.-Cmdr. Kuebler and his fellow attorney, Rebecca Snyder, sat at the other end.
Mr. Khadr spent much of the early part of Wednesday's hearing talking to Mr. Edney or looking down at the table. He was watched over by the usual half-dozen or so soldiers.
In the adjoining gallery, a group of Canadian reporters watched the proceedings, alongside some human rights group representatives, soldiers and an official from the department of foreign affairs in Ottawa.
Prosecution and defence lawyers also argued about defence allegations of "unlawful influence" over the military commission proceedings. Lt.-Cmdr. Kuebler argues that the prosecution allowed outside government agencies to weigh in on how much information should be handed over to the defence as part of the prosecution's discovery obligations. Lt.-Cmdr. Kuebler's argument focuses on two reports examining detainee abuse in, among other places, Guantanamo Bay. The defence had originally been allowed to view the report, but that access was subsequently "clawed back," according to Lt.-Cmdr. Kuebler, at the request of outside government agencies. Major Groharing argued that the prosecution's mistake was not consulting with such agencies, but in giving the defence a preview of the documents in an effort to streamline the discovery process, a mistake the prosecution lawyer said his team would not make again.
In a rare move, Lt.-Cmdr. Kuebler is looking to put members of the prosecution team on the stand to discuss the issue.
The military judge in the case, army colonel Patrick Parrish, chided the prosecution for the amount of time it has taken to review whether one of the reports can be handed over to the defence. The judge gave the prosecution a deadline of 26 August to come up with a response on the matter, adding that the process should "move faster than glaciers."
The pretrial hearing is expected to continue Wednesday afternoon, with possible testimony from two witnesses. The prosecution is expected to call Brigadier General Thomas Hartmann, the legal adviser to the military commission, whom the defence accuses of improperly interfering in the prosecution of military commission cases. In turn, the defence is calling Colonel Morris Davis, the former chief prosecutor in Guantanamo, who quit last year, citing excessive government interference.
By military commission standards, Wednesday's court proceedings suffered from only minor technical glitches. At the beginning of the proceedings, the audio feed was cut to the adjoining gallery where members of the media sit. Several soldiers immediately said that was due to a delay in the feed, designed to allow the court to cut potentially sensitive information from being broadcast. However about 30 seconds later the audio kicked in, and it became clear that there was no such delay. The audio also cut out during two other portions of the proceedings.
Mr. Khadr faces several charges before a military commission here, including murder. He is accused of, among other things, throwing a grenade that killed a U.S. soldier during a 2002 Afghan firefight. If convicted, he faces a maximum sentence of life in prison. His trial is set to begin in October.
