New twist in Guantánamo hearing draws fire

US military prosecutors hid a surprise witness until this week, complains a defense lawyer for detainee Omar Khadr.

Defense attorneys for accused illegal combatant Omar Khadr, a Canadian national, say they have only just been told by US prosecutors of a potentially exculpatory witness, more than five years after US forces captured Mr. Khadr in Afghanistan. The revelation casts further doubt on the fairness of the military commissions established to try "unlawful enemy combatants" being held at the US Naval Base at Guantánamo Bay, Cuba. Canadian broadcaster CTV reports that Lt. Cmdr. William Kuebler, Khadr's trial attorney, only learned of the witness this week as the judge began to hear arguments as to whether Khadr could be tried by military commission. Commander Kuebler accused the US government of trying to hide the witness, described as a US government employee.

"It's an eyewitness that the government has always known about," said Kuebler. "They weren't going to tell us who he was or how to get in touch with him or where he was. Their theory is that they've done their investigation and they've disclosed everything they have to disclose. And we don't necessarily have an entitlement to talk to people who were actually at the scene of the crime."

Khadr, who was 15 at the time of his July 2002 capture in a firefight in Afghanistan, is charged with murder, attempted murder, conspiracy, and spying. He has been held at Guantánamo since November 2002. Kuebler's concerns about the previously unmentioned witness were echoed by Michael Berrigan, the deputy chief military defense lawyer for the Guantánamo cases, reports The New York Times.

"How we can have newly discovered evidence is beyond me," since prosecutors have been pursuing charges against Khadr for years, Mr. Berrigan said. The lawyers said they could not describe the witness because prosecutors told them the information was classified. "Every time you all come down here you see the problems in this process," Berrigan said. Spokesmen for the military said prosecutors turn over information that could help a defendant when they learn of it. The military prosecutors declined to answer questions from reporters.

The Los Angeles Times writes that the evidence from the new witness relates to whether Khadr had a right to be taking part in the fighting in Afghanistan as a "lawful enemy combatant." The US military commissions were established by Congress last year to try "unlawful enemy combatants," and were Khadr found to be "lawful," the commissions would have no authority to try his case.

The commissions brand the Taliban, Al Qaeda and "associated forces" as unlawful combatants, but defer to Geneva Convention definitions on who is considered a lawful combatant. Lawful combatants include members of an enemy country's armed forces, captured soldiers entitled to prisoner-of-war protections, or those meeting four conditions for "irregulars": that they are under the command of a recognized leader, wear a uniform or insignia recognizable at a distance, carry arms openly, and conduct operations in accordance with the laws and customs of war. Guantánamo detainees were subjected to Combatant Status Review Tribunals three years ago to determine whether they were enemy combatants. But the military commissions rules written by Congress last year required that status reviews specify whether each detainee was fighting lawfully or unlawfully, a distinction not addressed during the previous status hearings.

The Times notes that even if Khadr were found to be a lawful enemy combatant, the US would most likely continue to hold him at Guantánamo on the grounds that he would be a threat to the US if released. The distinction between "lawful" and "unlawful" enemy combatants has hampered the Khadr trial before. Col. Peter Brownback, the military judge overseeing the Khadr case, dismissed charges against Khadr in June, saying that Khadr has never been declared an "unlawful enemy combatant" and therefore could not be tried by the military commission. Reuters reports a military appeals court overturned Colonel Brownback's decision, however, ruling that Brownback himself could declare Khadr an "unlawful" combatant. The new witness's testimony is part of the evidence Brownback is examining to determine Khadr's status. During the latest hearings, Brownback noted that the Department of Defense "didn't like" his earlier dismissal of charges, and says he has taken a lot of heat for that decision. The Globe and Mail reports that some trial observers slammed the apparent effort to conceal the existence of an exculpatory witness.

"It is totally outrageous that the prosecution would try to push ahead with a hearing on whether or not Khadr was an unlawful enemy combatant, while all the time withholding from the defence potentially exculpatory information," said Jennifer Daskal of Human Rights Watch. "Anyone who has ever gone to law school knows the fundamental legal and ethical rule: The prosecution cannot withhold exculpatory information from the defence." Others, like James Carafano of the Heritage Foundation, a conservative think tank, praised the open, adversarial character of the proceedings. "Today the American people had a good day, today the system won," he said.

The CanWest News Service writes that Khadr's defense attorneys, frustrated by the obstacles they say have been placed in their path by the Pentagon, are attempting to get the Canadian government to intervene on Khadr's behalf.

"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 Guantánamo 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 only successful conviction resulting from the US military commissions was that of Australian David Hicks, on whose behalf Australian Prime Minister John Howard intervened. Hicks pleaded guilty in March to providing material support to Al Qaeda and was sentenced to nine months in prison.