Omar Khadr's Lawyer Collapses, Trial Postponed

August 13, 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 fourth post in his series from the field.

12 August 2010

Omar Khadr's defence lawyer Lt Col Jon Jackson in the media hangar, Guantánamo Bay, Cuba.

In a case that has moved so slowly for so long – it is now nearly five years since Omar Khadr was first charged under the Bush administration – much happened during the first day of his military commission trial here at Guantánamo, both expected and unexpected. Proceedings began with opening statements from the prosecution and defence. They ended in drama when Omar Khadr’s military lawyer, Lieutenant Colonel Jon Jackson, collapsed in court late in the afternoon while cross examining a witness.  He was taken to hospital by ambulance and as I write it is uncertain when the trial will resume.

Earlier the commission heard from two prosecution witnesses and viewed a video that US forces had retrieved from the compound in Afghanistan where the firefight took place that is at the heart of the case against Omar Khadr.  It is there that, as a 15-year-old, he is alleged to have thrown a grenade that fatally wounded a US soldier, Sergeant Christopher Speer. Among those present in the courtroom today, for the first time, was the widow of Sgt Speer.

For the prosecution, Jeffrey Groharing began by wheeling in a scale model of the compound where the firefight took place.  He alleged that Omar Khadr had told one of his interrogators that he was a “terrorist, trained by al-Qa’ida” and that what he was most proud of was carrying out attacks against Americans. He alleged that Omar Khadr had deliberately decided to conspire with members of al-Qa’ida to kill as many US soldiers as possible.  When it came to the question of statements and confessions obtained during the teenager’s interrogations at the US air base in Bagram in Afghanistan and subsequently in Guantánamo, the prosecutor insisted that they were the result of friendly conversations between the detainee and his interrogators and that all were freely and voluntarily given.  He made no reference to Omar Khadr’s young age when these interrogations took place.

In his opening statement for the defence, Lt Col Jackson portrayed Omar Khadr as a scared child in the company of “three bad men” on 27 July 2002 when the firefight occurred.  He blamed Omar Khadr’s late father for the fact that Omar Khadr was there in the first place, adding that “Omar’s father hated his enemies more than he loved his son”.  [Editor’s note: Members of the Khadr family, including Omar, are believed to have moved to Afghanistan when he was 11 years old. According to the Miami Herald on 12 August 2010, the prosecutor said in his opening statement that Omar Khadr had grown up in a family of “radical Islamists” and had “even lived with Osama bin Laden in an al-Qa’ida compound in Afghanistan”].

Lt Col Jackson asserted that “Omar Khadr did not kill Sergeant Speer” and that it was another man who was also still alive after US airstrikes against the compound who had thrown the grenade.  On the question of interrogations, Lt Col Jackson highlighted the way Omar Khadr was treated in Bagram by his first interrogator, who questioned him while he was still in a stretcher, recovering from his serious injuries, and effectively threatened him with being raped and killed by “big black guys and Nazis” in a US prison.

The rest of the day was spent hearing from two prosecution witnesses, Colonel W and Sgt-Major D, both of whom had been involved in the 27 July 2002 firefight.  Colonel W had ultimate command and Sgt-Major D is the officer who shot and killed the other man who was still alive in the compound at the end of the firefight and also shot Omar Khadr, twice, in the back.  Both officers gave vivid testimony describing how the fighting unfolded, including highly charged moments such as when Sgt-Major D described holding Sgt. Speer’s hand as he lay bleeding from the shrapnel wound that ultimately took his life and urged him to live for his wife and children.

Neither Colonel W or Sgt-Major D actually saw Omar Khadr throw the grenade but testified they believed it had been him.  Sgt-Major D’s account of shooting Omar Khadr (who he said he saw sitting facing away from him) in the back certainly raises questions.  Inconsistencies appeared, too, between Colonel W’s testimony and the initial written report he had filed about the incident, which he further admitted he had changed some years after the events.  The first report, written hours after the fighting, said that “one badly wounded person threw the grenade and was later killed.”  Omar Khadr, however, obviously survived.  Colonel W then laid out how he revised his own personal copy of that report, some two or three years later, changing the word “killed” to “engaged.”  He indicated that the first report had been based on his mistaken assumption that Omar Khadr, who he had been told was unlikely to survive, had in fact died. He said that when he realized the error, he made the correction.

The prosecution also showed a video that US forces had recovered from the compound some 30 days after the firefight.  The video is a hodge-podge of images, some with conversation, others not, and included depictions of the making of improvised explosive devices (IEDs) and planting IEDs on a roadway.  Omar Khadr appears in some of the images – which the prosecution argues is proof that he conspired with other al-Qa’ida members.  At the same time the video underscores Omar Khadr’s young age at the time and shows a teenager apparently eager to please the adults he was with.

But the dominant concern as the day ended was that of Lt-Col Jackson’s health.  It is virtually certain the trial will not continue on Friday, as he has been hospitalized overnight.  Depending on the results of medical tests, proceedings might resume on Monday. If he needs to be transferred to the mainland for treatment, an adjournment of at least several weeks is inevitable.

Post script, 13 August 2010

It was announced on Friday morning that Lt-Col Jackson has been transferred to the US mainland and that there will be a minimum 30-day delay in the trial.

Amnesty International will be urging the US authorities to use this development to abandon Omar Khadr’s military commission trial once and for all, and to resolve the Omar Khadr case in accordance with international human rights standards. The Canadian authorities should do what they have so far failed to do – seek Omar Khadr’s repatriation.

Read the AI briefing: USA: Denying human rights, failing justice: Omar Khadr’s military commission trial set to start at GuantánamoTake Action