Prosecutors Seek to Examine Khadr’s Mental Health

GUANTANAMO BAY — I’ll be heading into the courtroom for Day 2 of Omar Khadr’s pre-trial hearing shortly, and that means I’ll be unable to provide any updates until I leave the super-secure facility (no cellphones, no computing devices of any kind, no nothing) around lunchtime. But something I wasn’t able to fit into my recap of Day 1 was a savvy move by the prosecution: They want the judge to authorize them to conduct an evaluation of Khadr’s mental health without defense counsel present — something that will delay the pre-trial hearing’s resolution by several weeks.

The legal grounds on which chief Khadr prosecutor Jeffrey Groharing seeks the exam are a bit obscure. But Groharing’s fellow prosecutor, Air Force Cpt. Christopher Eason, argued that the defense’s contention that Khadr has suffered depression and post-traumatic stress disorder consistent with surviving abuse — the basis on which the defense wants a judge to rule that Khadr’s statements to interrogators are inadmissible — obliges the government to seek its own determination. What’s more, Eason continued, the defense hadn’t made Khadr’s mental health records available to the prosecution, offering instead to let them talk with the defense’s mental health experts. Finally, Eason said that the exam the government seeks can’t occur with defense counsel present, since that might “prejudice” the outcome of the exam.

Unacceptable, said Kobie Flowers, a lawyer for Khadr, since it would entail Khadr “incriminating himself by participation” in the exam. “That’s certainly way outside the ballpark in my experience,” Barry Coburn, another of Khadr’s attorneys, told reporters after the hearing adjourned for the day. “We’re going to, I think, have a very strenuous objection.”

Army Col. Pat Parrish, the judge in the Khadr case, didn’t decide the issue today. But he appeared surprised when he asked Eason how long the prosecution anticipated it would need for the exam. “Five weeks,” Eason replied.

“That would require a recess in continuance of the suppression motion,” Parrish intoned. And that’s serious. Khadr’s actual military commission is scheduled to start July 12. It can’t get underway until the pre-trial hearing settling the suppression motion that the defense filed is resolved, since the motion cuts to the heart of what the prosecution can use as the basis of its case against Khadr. Further delays, in other words, put the trial date at risk — especially since the defense is likely to raise new procedural objections if Parrish grants the prosecution’s request.

Eason was unmoved. “The government’s contention is this is critical,” he told Parrish.