GUANTANAMO BAY — Welcome to the first courtroom logjam of what officials here call military commissions 4.2.
Omar Khadr’s pre-trial hearing this morning experienced an unexplained hour-long delay. Court officers filtered in at 10 a.m., without a certain important individual: Omar Khadr.
[Security1] Prosecution promptly called a Marine Corps captain, Laura Bruzzese, to testify that she informed Khadr at 5:15 a.m. that there was a hearing scheduled for this morning. Khadr had a blanket over his head and complained of pain in his left eye, which has been sightless after an injury sustained during his 2002 capture in Afghanistan. She had him escorted to the infirmary, where he received an eyedrop for the pain, and in Camp Delta security officers attempted to load Khadr into a van to transport him to court. Part of that transfer involved putting what Bruzzese called “Eyes and Ears” on Khadr: blackout ski goggles and earmuffs to block out his senses while in transit.
Only Khadr refused. When Bruzzese asked him why he wouldn’t wear the Eyes and Ears — standard operating procedure for transiting a detainee, she testified — Khadr responded, “The only purpose is to humiliate me.” Under cross-examination, she testified that the van used for transport has no windows. Khadr wouldn’t, in other words, be able to understand where he was going even without the Eyes and Ears.
Khadr’s aggressive defense lawyer, Barry Coburn, contended that Khadr was not voluntarily absent from the hearing. “My understanding is that this has never been done before,” Coburn told Col. Patrick Parrish, the military judge, referring to the placement of the Eyes and Ears on a detainee in the van.
Parrish didn’t appear sympathetic. “This court is not going to second-guess the security requirements” placed by military officials here for detainee transfer, he said. Parrish denied Coburn’s requests to call witnesses to testify as to the involuntary nature of Khadr’s refusal to attend.
But then Parrish returned from a brief recess arising from an unrelated issue with new facts. Court reporters verified that the prior judge in Khadr’s case, Col. Peter Brownback, did not inform Khadr during his 2007 arraignment that a defendant has the right to attend every hearing in his case and that the proceedings will not stop if he declines to attend.
“I don’t feel comfortable proceeding until it is clear on the record that he has been so advised,” Parrish said, preparing to bang his gavel down for a recess. “The Manual says it is so fundamental.”
Before he did, Parrish urged defense counsel to visit Khadr at Camp Delta and “advise him of his fundamental rights.” If Khadr affirms to his lawyers that he understands and still doesn’t want to attend, Parrish said he’d accept that outcome. Alternatively, Parrish said he would “have him forcibly brought” to court to inform Khadr of his rights. (One of the most knowledgeable reporters here, Carol Rosenberg of the Miami Herald, said that judges don’t necessarily have the authority to order a detainee movement, as it’s been challenged in prior cases.)
So thanks to an obscure procedural snafu from 2007, Coburn and his partner, Kobie Flowers, are racing to Camp Echo, where detainees meet with their lawyers, to talk to Khadr. Neither would tell me in the confusion of the courtroom which option they’d choose. But they brought along Steve Xenakis, a mental health expert, to evaluate Khadr — most likely so that if Khadr declines to attend, they could proffer an expert statement about how voluntary he considers his absence.
“How quick can we get on the road, guys?” was the last thing I heard Coburn say before his team raced out the door.
The court reconvenes at 1 p.m. One potential problem: Camp Echo is outside the wire of Camp 4, the facility for “compliance” detainees, where Khadr resides. Conceivably, security officers could force Khadr to put on the Eyes and Ears, even to talk to his lawyers at Echo.