This has understandibly been big news here in Canada. Oddly enough... it's been whisper quiet in the States. Now, I've commented on the prosecution of Omar Khadr before. To sum up; he was "detained" in Afghanistan after allegedly throwing a grenade during a firefight and killing Christopher Speer; he was held for six months in Afghanistan before being transferred to Guantanamo Bay, and he is now the showpiece of the current Military Tribunal process.

Oh, right... he was 15 at the time of alleged firefight.

So a few more revelations came out during the proceedings this week that are worth mentioning. First, that the Army changed the combat report to reassign the blame for the grenade attack from another combatant to Khadr, and that Khadr was interrogated by the man responsible for the beating death of an innocent Afghani taxi-driver under interrogation.



It gets better...



Lets consider these facts, as well as the fact that Khadr was heavily wounded during his early interrogations and was forced into Al Queda when he was just 10 years old, and try to answer these questions:

1. Does Omar Khadr have a chance at a fair trial given the revelations made so far during the preliminary stages? Can he reasonably be considered guilty

2. Can these trials be considered even remotely fair and legitimate?

1. Does Omar Khadr have a chance at a fair trial given the revelations made so far during the preliminary stages?

The fact that these issues are coming to light (with many thanks to the Canadian press) is reason to hope that there can be an open and fair trial. I sure hope so.

Can he reasonably be considered guilty

I'm not going to touch this one except to drag out the old "innocent until proven guilty" routine.

2. Can these trials be considered even remotely fair and legitimate?

If whistleblowers continue to bring the facts out into the open, then yes. If not, then there is no hope anywhere.

It doesn't look like it, the evidence is flimsy at best and the evidence available is being suppressed and documents have been altered. He is at least getting a defense and if his lawyer should have no trouble getting an aquital. I don't know how these tribunals work but if this were in a Criminal court in the U.S. he would have grounds for an appeal even if he were convicted.



I have my doubts which means the answer to the question is no.



Legitimate? Sure. The question of whether or not they are fair is beginning to look like No.

How did you arrive at the conclusion that the evidence is flimsy at best and being suppressed? The information provided for this topic were only possible courtesy of the defense, which was provided that information via judicial order...all part and parcel to a "fair trial" process. Are any of us familiar enough with all of the evidence to say it's 'all flimsy'? None of us have seen any of it...only selective, second-and-third-hand bits of information.

Furthermore, I'm not sure we can conclude from the above that the "blame was reassigned".

Khadr was very seriously wounded....shot twice in the upper torso and almost dead after the grenade was thrown. Perhaps they thought him surely dead at the time and wrote the first in error? There isn't enough information here to form a conclusion either way. The commander needs to be questioned (and I believe he has been). Actually, I haven't read anything that provides enough information to conclude much of anything right now. I've read before that Kahdr jumped up and threw the grenade...has that story changed? I don't know. Does anyone? We know that one witness didn't actually see Khadr throw the grenade. However, we don't know if he was the only witness or if there were more.

If there was only one witness, and he didn’t actually see it, and the grenade came from the direction that another, different dying-but-not-dead Al Qaeda member might have thrown it, the defense has a very good case. I haven't seen reason yet to conclude that is the case…and I doubt that only one soldier was sent in with one medic (it was a medic who was killed, not 'in the middle of a firefight, but after) to sweep the compound and tend to the injured after an extensive firefight. What we have is selective information only.

It is also worth mentioning that the Canadian government sent agents to interview Khadr and has not requested that we hand him over. Since the US government has not refused any other request by friendly nations to turn over Gitmo suspects (including the brother of Khadr who was released from Gitmo several years back), that would seem to indicate that the US government must have a relatively strong case, and the Canadian government doesn't want him either.

The Canadian government has been burned by this family before. They diplomatically arranged for the release of pappa Khadr from a Pakistani prison in 1995, after he was implicated in the bombing of the Egyptian embassy in Pakistan. Khadr then moved his family into a compound with Osama bin Laden, had his children trained in terrorist camps and was eventually killed fighting Pakistan forces. Khadr's younger brother was paralyzed in the same firefight.

This was one of the prime reasons:

GUANTANAMO BAY, Cuba–The U.S. government "manufactured" evidence against Omar Khadr when it changed a document two months after his arrest and blamed him for throwing a grenade during a firefight that killed a soldier, his lawyer said yesterday.

The defence made public two documents in a U.S. military war crimes court showing that the on-scene commander altered official documents recounting the events of July 27, 2002, when Khadr was arrested in Afghanistan following a firefight with U.S. forces (Evidence doctored to implicate Khadr: Lawyer)

Originally it said that the grenade thrower was killed, two months later it was changed.



According to retired General John Altenburg, a lawyer who reviewed the initial evidence against Khadr, says that no one actually saw him throw the grenade over the wall. The circumstantial evidence indicates that Khadr was 'arguably' a member of al Qaeda. It sounds flimsy to me. His brother claims that he was there because his father told him to go as a translator but the kid was obviously wanting to die for Islam, no question about that.



No one actually saw him throw it so I can't help but wonder what the actual evidence is. The irony of the whole thing is that even if he wins in court the U.S. does not have to release him until the 'War on Terrorism' is over. Don't get me wrong, I don't care what his age was if he was involved with Al Qaeda I have no sympathy for him. While he lay there bleeding an Army medic saved his life over the objections of the soldiers who would have happily sent him to Allah as he requested. I just think it is too important to prosecute these detainees and get convictions against terrorists in order to convince people that they are not heros, they are criminals.

This kid could get exactly what he wants just because of his age (at the time) and the weakness of the evidence against him, he could become a martyr. Sure, this kid had the deluded idea of being blessed with dozens of breathtaking virgins in paradise if he died for Islam. He went to the training camps and the video that looks like him learning to plant IEDs followed closely with footage of landmines being planted in the road in the middle of the night.

I still refuse to believe that this is what we need for a precedent setting case for the prosecution of terrorists. I stand by my statement that the evidence against him is flimsy and have serious doubts that the prosecution has a good case against him.

60 Minutes reports: Omar Khadr The Youngest Terrorist Video

Omar Khadr: The Youngest Terrorist Article

It is also worth mentioning then that this is the first Canadian government since the Death Penalty was abolished in Canada to not formally protest the pending execution of one of its citizens abroad. As a general rule, our current Government's attitudes regarding the inmates of Guantanamo mirror President Bush's... they're all guilty of something, so we'll keep 'em locked up until we can find something that sticks.

To re-emphasize what Phaedrus already illustrated; there is no witness that saw Khadr throw the grenade, and no forensics to indicate that he did. He was interviewed under extreme duress by a soldier already proven to have participated in the torture death of an innocent Afghani, and crucial documents in the case were altered; and those alterations were only disclosed accidentally.

Let me ask you this Mrs. P, as someone with considerable more military expertise than me: is it normal to make alterations/replacements to these sorts of reports without disclosing the actual date of the change?

Well, thanks for suspecting I might know, but I have no earthly idea. I'd suspect the answer is: definitely not.

Jagwease? Are you out there?

It didn't take me long to find out who this guy who tortured the taxi driver to death was. It was Sgt. Joshua Claus and he plead guilty and was sentenced to 5 months. As far as things being disclosed accidentally I don't know but when the court met for a hearing in March the Judge gave the defense an opportunity to interview the Commander involved in the interrogation. From what I can gather it is not going to help the prosecution and it could be severely damaging.

Khadr interrogator convicted in prisoner's torture death



I don't pretend to be an expert but I am pretty familiar with how the Army works. It is a huge bureaucracy and units, very often are compartmentalized. Information flows to those who need to know and the U.S. Military is obsessed with secrecy. As a solider I understand the need for Operational Security (OPSEC) but when you are talking about a potentially precedent setting case, full disclosure between the prosecution and defense is nonnegotiable. What is more an altered, primary source document is not only unusual, if it's a sworn statement it's perjury.

Frankly, of course it's unusual to alter primary source documents that are being used as legal evidence, in fact there are criminal penalties for that.

Bottom line, I think this case is weak on evidence for the prosecution and in an American criminal court I believe the coerced confession would be thrown out along with the altered document. I am also sure that circumstantial cases for capitol crimes like murder are very hard to prove without forensics and this case should be no different.

Thanks Ultimate Joe, that was a very thought provoking OP. As much as I hate terrorists I still believe in due process and the rule of law and I have serious doubts about this case being a win in the War on Terrorism.

It would be highly irregular to make such changes without annotating the change. Depending on the reason for the change, it could be a simple clerical error to a criminal false official statement - or anything in between.

Going to the original questions:



Absolutely. Do not discount the integrity of the military judges that preside on these tribunals nor the zealousness of the defense counsel nor the members of the actual tribunal. Having practiced at all levels and at all positions in the military criminal justice system - people involved in it want to do the right and just thing.




I have no idea. Knowing how shoddy the reporting is on regular criminal cases, I can only imagine what it is on these. I have read accounts of trials in which I was a participant and I barely recognized what they claimed actually happened. Everyone has an agenda. Hopefully it is only to get the story right. The more incendiary the issue, the less one needs to trust the objectivity of the reporting.




Fair within the rules allowed. Most certainly. Legitimate? As it is by act of Congress, certainly. The whole process is a mess. The prosecution is groping in the dark as well. That is not good for the system. Whether it is a geopolitically a good idea, that is a whole 'nother question. You have not seen the uniformed lawyers clamoring to get involved in this mess. I suspect that the defense counsel will filibuster the process until late January 2009 for some reason....

W

An update from yesterday:

For those that are still watching this story unfold, another disturbing element is uncovered:



We're getting very close to documentation of torture here... and lets not lose sight of the fact that he was fifteen years old at the time. Kafka himself would be proud of the denouement to the article:



In a process which is designed to keep the process completely confined to military channels, it is beyond disturbing that the judge chosen by the military has threatened to suspend or dismiss the charges unless the military prosecution complies with his orders. Scary stuff?

Today the NYT replaced the judge. No explanation was given.




They really are making this up as they go along. I'd have more faith in the mafia to provide a fair trial than this star tribunal. At the very least Brownback's dismissal will be seen as a loss of confidence for the system.

I hate to flog a dead horse, but here's another body-blow to the current Military tribunals process, and Khadr's case in particular:



The article goes on to state that the SOP (Standard Operating Procedure) specifically states that notes are to be destroyed to limit the legal ramifications of the interrogations. To those last hold-outs of this process, does this change your way of thinking?

To our esteemed military members; have you ever encountered an SOP like this. If not, how would you have responded? (Not to derail the debate... I am just curious.)

Ok, they change documents, suppress documents and destroy documents. International law would seem to prohibit him being tried because of his age at the time yet he is facing trial for war crimes making him the first juvenile to stand trial for war crimes, anywhere in the world. No one ever actually seen him throw the grenade.

If he were being tried for similar crimes in the United States he would have either been aquited, the case dismissed or by now he would have been tried, convicted and the verdict overturned on appeal.

I think he is going to walk, I see no reason why he shouldn't. If there was a category for the most disturbing topic this one would get my vote.