Gitmo Abuse ‘Contaminated’ Government’s Case, Attorneys Say

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Thursday, April 29, 2010 at 7:00 am

A view from the recreation yard at Camp 4 of the Guantanamo Bay detention center (Photo by Spencer Ackerman)

GUANTANAMO BAY — Making the most of their first court appearance since President Obama halted and then resumed the military commissions, attorneys for Omar Khadr, the Canadian citizen held here since he was 15 years old and charged with murder and support for terrorism, launched a forceful case Wednesday afternoon that a military judge should bar from court all statements Khadr made to his interrogators for the last eight years.

[Security1]“We will show this case was tainted by these statements from the very beginning,” Kobie Flowers, one of Khadr’s lawyers, told a packed courtroom, with Khadr himself seated just a few feet away. The physical and mental abuse that Khadr claims in an affidavit to have suffered at the hands of U.S. law enforcement, intelligence and detention personnel “contaminated” the heart of the government’s case against Khadr, he said: “The well, as it were, was poisoned.”

A team of four prosecutors led by Jeffrey Groharing, a retired Marine major, responded that Khadr’s lawyers hadn’t met their burden for demonstrating that Khadr was abused, as Khadr — looking healthy in a white shirt and thick beard — looked on stoically. Dismissing a central aspect of the defense, Groharing bluntly stated that “no secret evidence” would be used in the government’s case against Khadr, and called to the stand an FBI special agent who testified to “non-confrontation[ally]” interrogating Khadr in October 2002 in Afghanistan. The prosecution additionally contended that Khadr’s own affidavit about his abuse should be excluded from court, since prosecutors couldn’t cross-examine the defendant — a motion that the judge in the proceeding, Army Col. Patrick Parrish, quickly rejected in the only question settled during the three-hour hearing.

But in the hearing’s most dramatic moment, Flowers said at least one interrogator would testify to having personally taken part in Khadr’s abuse. As detailed in a motion filed by the defense in 2008, Khadr claims in his affidavit that his interrogators threatened him with rape, denied him medical treatment for gunshot and shrapnel wounds he suffered in his July 2002 capture in Afghanistan, and used him as a “human mop” to clean up his own excrement. The interrogator, referred to in the hearing only as “Interrogator #1,” will testify on behalf of the defense that he personally threatened Khadr “with rape” by threatening to render Khadr to an undisclosed Arab country where he would face the abuse.

Asked for clarification after the hearing why the interrogator would risk incriminating himself, Flowers’ co-counsel Barry Coburn replied, “I don’t know the answer to that.” He said he expected the interrogator to testify either late this week or early next week.

Flowers and Coburn further alleged that the government has impaired its ability to investigate Khadr’s case and accordingly hindered their ability to defend their client. They said that at least 31 different law enforcement and intelligence agents had interrogated Khadr, but that the government had only provided them access to three — and that one of them, known only to the court as “Interrogator #3,” may have falsified a report of Khadr’s interrogation — something they learned only after reviewing an extensive report from the Justice Department into FBI knowledge of abuse at Bagram Airfield in Afghanistan and Guantanamo Bay.

In response, the hearing’s only witness thus far, FBI Special Agent Robert Fuller, testified to interrogating Khadr six times in Bagram during a two-week period in October 2002, shortly before Khadr’s arrival in Guantanamo Bay. Fuller, a ten-year FBI veteran with the Joint Terrorism Task Force in New York City and before that a New York police officer, called Khadr’s treatment “comfortable, reasonable” and “conversational, non-confrontational,” leading Khadr to confess to throwing a grenade that killed a U.S. Army Special Forces sergeant, Christopher Speer.

The FBI agent further said Khadr never once complained to him of any abuse the detainee experienced and that his interrogation sessions would feature “snacks” and bottles of water brought for Khadr — although he also said that guards brought Khadr into the interrogation room with a full hood over his head.

Consistent with his behavior for the entire hearing, Khadr did not have any distinct reaction to Fuller’s testimony. The detainee, now approximately 23 years old, showed only the slightest of responses during the three-hour hearing, occasionally shifting in his chair, resting his chin on his fist to listen to the proceedings, or grinning understatedly at the few dozen observers lining the maroon-carpeted courtroom. After the hearing adjourned around 4:15 p.m. — so Khadr could pray — one of his Canadian lawyers, Nathan Whitling, told reporters, “he’s pretty uncomfortable in there.”

That wasn’t the only uncomfortable moment in the hearing. Parrish cancelled the entire morning session, scheduled to begin at 9 a.m., so officers of the court could read 280 pages worth of rules of evidence and procedure issued only the previous evening. Coburn said he didn’t even receive the so-called Manual for military commissions until 9:20 a.m., and he was back in court by 1 p.m., citing rules in the Manual that he later called “extremely marginal improvements” over an earlier edition that was overridden after Congress and the Obama administration passed a law last year restructuring the military commissions.

Some of those provisions, contained in what the Manual calls Rule 304, speak to the suppression of coerced evidence that Khadr’s attorneys seek. It bars statements produced by torture or coercion. But it allows the entrance into evidence of statements a defendant makes if a judge finds “the totality of the circumstances renders the statement reliable” and that the statement was “voluntarily given.” Additionally, lawyers can use statements of other detainees “allegedly produced by coercion” if a judge finds them to be torture-free, reliable, and if “the interests of justice would best be served by admission of the statement into evidence.”

Other aspects of the Manual appear incomplete. Several rules are listed as blank — an implicit recognition of the rush with which Pentagon officials completed the Manual barely in time for Khadr’s pre-trial hearing, as even former commission officials expressed surprise that the Pentagon could move forward with the hearing without rules of evidence and procedure in place.

Additionally, as first reported by The Miami Herald’s Carol Rosenberg, the Manual strips judges of the ability to factor into sentencing the years detainees have already served at Guantanamo Bay, and it doesn’t resolve a long-standing question vexing the commissions: Whether a detainee can plead guilty to a judge in a war-crime hearing that carries a death sentence.

The Manual can’t resolve more fundamental disputes concerning the military commissions. Several times throughout Wednesday’s hearing, Khadr’s lawyers referred the detainee’s “Constitutional rights,” only to face objections from the prosecution that the Constitution doesn’t apply to the Guantanamo population. Parrish, seeking to streamline the issues he must adjudicate, instructed counsel to table the debate.

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