Omar Khadr trial: 90 seconds to rule that prosecution can use allegedly coerced statements

August 10, 2010

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is the second post in his series from the field.

Omar Khadr was taken into US custody when he was 15 years old.

Once again, proceedings are underway in the case of United States vs Khadr at Guantánamo Bay. And the first question on the minds of many was answered quickly this morning.  Omar Khadr was indeed present in court as this latest phase of his military commission hearing opened.  He remained throughout the entire day.  He was present but he left his legal representation in the hands of his appointed military defence lawyer.

Before the trial itself begins (which is expected on Wednesday after the commission panel of US military officers, akin to a jury, is chosen and sworn in tomorrow), there were a number of motions filed previously by both the defence lawyers and by government prosecutors that had to be dealt with today.  They involve such matters as questions of evidence, expert witnesses, legal definitions, and courtroom security procedures. Most have been outstanding for many months and have already been the subject of written briefs or days of witness testimony and oral arguments.  Some touch on key human rights concerns that go to the heart of the fairness of this process.

Lawyers took several hours today to make their final submissions on these legal issues.  And then in a remarkably terse series of decisions that took no more than 10 minutes, the military judge, Army Colonel Patrick Parrish, ruled against Omar Khadr on almost every point.

Alex Neve stands in front of the building housing the courtroom in Guantánamo Bay, Cuba.

Most anticipated was the military judge’s decision as to whether statements made by Omar Khadr during interrogation sessions he underwent at both the US air base in Bagram, Afghanistan, and at Guantánamo Bay can be admitted as evidence at the trial.  Prosecutors clearly want them in.  The defence had argued that they should be excluded as they bear the taint of torture and other cruel, inhuman or degrading treatment.  Omar Khadr has detailed a range of torture and other ill-treatment he says he was subjected to at that time, including painful physical stress positions, threats of rape, sleep deprivation, use of barking dogs, hooding, shining bright lights into his injured eyes, being used as a human mop to clean up his own urine, and more.

The prosecution has carefully sought to choose statements from interrogations that were done by the book.  But those allegedly “clean” interrogations came in the wake of other sessions in which Omar Khadr alleges he was subjected to these various forms of torture or other ill-treatment.  In at least one instance his allegations have been corroborated by the interrogators themselves.  For instance Omar Khadr’s initial lead interrogator in Bagram has admitted to using a scenario during interrogation that amounted to a threat to send Omar Khadr to a prison where he would be raped and likely killed by other inmates.  Omar Khadr was a 15 year old boy at the time, still recovering from injuries that had nearly killed him – he had been shot twice in the back, blinded in one eye, and had survived a sustained US air assault on the compound from which he was subsequently taken into US military custody.

The military judge’s ruling was simple and straightforward – all of the statements will be admitted as evidence at the trial.  None will be excluded.  He said that he will provide detailed reasons for his decision at some later point, but not at this stage.  For the time being we are left with no explanation as to why or how he did not take the time to expressly address the evidence of torture and other ill-treatment that was before him.

When set against the systematic failure of the US authorities to ensure accountability and remedy for the human rights violations, including torture, that have occurred at the hands of US personnel in the context of what the previous administration called the “war on terror”, the ruling – which took no more than perhaps 90 seconds at the outside to deliver – is less surprising, if no less troubling.

In a statement to the military judge in a pre-trial hearing in July, Omar Khadr had asked “how can I ask for justice from a process that does not have it?” Today’s proceedings can have done nothing but confirm Omar Khadr’s worst fears.

Join Amnesty International Tuesday, August 10th for a Tweet Chat to discuss Khadr’s case and that of other detainees at Guantanamo.  Submit your questions any time between now and August 10th on Twitter by using hashtag #AskAI.