A U.S. commander made an unexplained change to a key military report that made it support the government's case against Omar Khadr, the Guantanamo Bay tribunal heard yesterday.
The report detailed what happened during a 2002 firefight in Afghanistan that left U.S. Sergeant Christopher Speer dead and landed Mr. Khadr at the U.S. detention centre at Guantanamo Bay charged with murder.
In the report's first version, penned the day after the firefight and dated July 28, 2002, the commander identified in court as "Lt.-Clnl. W" says U.S. troops killed the person who attacked Sgt. Speer. Several months later, the report was rewritten to say U.S. troops "engaged" the person who attacked Sgt. Speer, implying the attacker was not killed. The date on the report remained July 28, 2002. Mr. Khadr was wounded by shrapnel during the firefight and shot more than once by U.S. commandos, but survived.
The implications for Mr. Khadr are significant. If the person who attacked Sgt. Speer was himself killed, it could not have been Mr. Khadr. He faces a murder charge in relation to the killing, and the possibility of a life sentence if convicted.
Mr. Khadr's U.S. military lawyer, Lieutenant-Commander Bill Kuebler, revealed the previously secret information at the tribunal yesterday. The prosecution did not contest his account.
Outside the tribunal, the defence lawyer said the single change - from the attacker being killed to the attacker being "engaged" - was the only difference between the two versions of the report.
"The government official responsible for generating the official reports of what happened that day actually went back and retroactively altered government records to reflect the reality that was most convenient to the United States government at that time," Cdr. Kuebler said outside the tribunal. "It's consistent with the proposition that the government manufactured evidence to make it look like Omar was guilty."
Colonel Bruce Pagel, the new deputy chief prosecutor in Guantanamo Bay, flatly denied the government manufactured evidence against Mr. Khadr. He would not, however, comment on why the report was altered, saying he could not speak about evidence that will come into play during the trial.
Mr. Khadr was expressionless for most of the almost two-hour hearing.
With a bushy but not unruly beard and a subdued manner, he sat next to his defence team wearing the white uniform reserved for the most compliant prisoners in Guantanamo Bay. As usual, he was flanked by soldiers.
Cdr. Kuebler presented a bevy of other motions, all related to discovery of evidence.
One asked for access to the commander who wrote the reports. The prosecution is arguing against the motion, saying it has no requirement to make the officer available since he is already scheduled to appear as a witness when Mr. Khadr's trial actually begins.
Several of the discovery motions related to Canada's involvement in 21-year-old Mr. Khadr's case. One motion dealt specifically with correspondence between U.S. and Canadian government officials around the time Mr. Khadr was captured in Afghanistan in 2002. The prosecution argued that a search of the U.S. State Department found no records relevant to the defence's case, a finding Cdr. Kuebler contested.
The military judge, Army Colonel Peter Brownback, ordered the prosecution to conduct another search, and said any messages advising the Canadian government that one of its citizens had been captured and detained are "discoverable," meaning they are to be handed over to the defence.
Other discovery filings presented by the defence dealt with everything from audio and video of Mr. Khadr during his capture, to interrogator identities to statements made by the detained Canadian.
Judge Brownback is expected to rule today on several of the discovery motions. Although he chastised both sides for not bringing the discovery issues to his attention sooner, he was clearly unimpressed with the prosecution's commitment to disclosing all evidence to the defence team.
It is unclear when Mr. Khadr will appear in court next; however, Judge Brownback indicated he could make the accused Canadian a regular fixture in the courtroom.
"We can't try the case until we get the discovery done," the judge said. "So if I have to come down here every week, I'll do it, what the heck."