Most Dramatic Testimony of Post-9/11 Era Expected at Gitmo

A sketch by courtroom artist Janet Hamlin of defendant Omar Khadr with his defense team as FBI Special Agent Robert Fuller testifies in front of a video of Khadr posing while allegedly making IEDs. (EPA/ZUMApress.com)

GUANTANAMO BAY — The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if the government and defense attorneys don’t reach a plea deal to settle the case of Omar Khadr, who has been held in detention for nearly eight years and charged with the murder of a U.S. Special Forces soldier.

Khadr’s attorneys plan to call someone known only as “Interrogator #1″ to testify this week. According to attorneys Barry Coburn and Kobie Flowers, Interrogator #1 will testify to having personally threatened Khadr in 2002 with sending the then-15 year old son of an Osama bin Laden associate to Egypt to be raped if he did not cooperate with interrogators at Bagram Air Field in Afghanistan.

[Security1]Additionally, during cross-examination during the first four days of the hearing — in which Khadr’s attorneys are asking a military judge to exclude all of their client’s statements to his interrogators from the government’s case against him, arguing that they occurred under coercion and even torture — Khadr’s attorneys have asserted that the first person to have ever interrogated Khadr at Bagram was court-martialed from the military for participating in the abuse of detainees.

This interrogator appears to be a different person than Interrogator #1, since Coburn said in a Saturday press conference that the court-martialed interrogator was “someone whom I’d very much like to be here,” and Interrogator #1 is scheduled to testify. “If that person is not here, and testifies electronically, that would be disappointing to me, but the most important thing is that that witness testify,” Coburn continued. He would not answer any substantive questions about either interrogator or their possible testimony.

If either Interrogator #1 or the other “First Interrogator” testifies, their faces will be visible in the super-secure courtroom here and their names will not be revealed. But published reports indicate a few likely possibilities for their identities. Former Army Spc. Damien Corsetti, a military interrogator at Bagram in 2002, was acquitted by a court-martial of various disciplinary infractions, but has confessed to involvement in the abuse of detainees. “I firmly believe it was torture and unfortunately I took part in it,” Corsetti said of Khadr’s treatment at Bagram in a 2009 interview with the Toronto Star’s Michelle Shephard.

While Corsetti is not believed to have interrogated Khadr, he might still have threatened the 15-year old during detainee operations at Bagram, where Khadr was held after his July 2002 capture by U.S. troops before his transference to Guantanamo in October 2002. A Saudi man who was detained at Bagram has said that Corsetti threatened him with rape, according to a 2005 New York Times expose into detainee abuse at the prison.

That same report identified Joshua Claus as an Army specialist responsible for the violent deaths of two detainees at Bagram, named Habibullah and Dilawar, a few months after Khadr was transfered to Guantanamo. Claus served five months in military prison in 2005 after pleading guilty to assault and misrepresenting his involvement in the deaths to investigators. A former lawyer for Khadr said in 2008 that Claus conducted “virtually all” of Khadr’s Bagram interrogations.

Testimony from any interrogator about personal involvement in detainee abuse on behalf of an abused detainee will be a milestone for the military commissions, or for any other forum for post-9/11 justice. No other case has featured such a dramatic and potentially self-incriminatory development. Asked last week why an interrogator would potentially incriminate himself, Coburn replied, “I don’t know the answer to that.”

Any account from former interrogators about abusing Khadr will contrast sharply with the accounts of five interrogators who have testified thus far on behalf of the prosecution. Those interrogators, who worked for the FBI, the Naval Criminal Investigative Service and the Defense Intelligence Agency, have testified that Khadr was a cooperative and good-natured detainee who cooperated with his Bagram and Guantanamo detainees without any coercion. All interrogated Khadr when he was 16 years old, and said he responded positively to such inducements as food from McDonald’s, car and motorcycle magazines, and the promise of what one called “Islamic children’s books.”

“If you notice the way the government is presenting evidence in this hearing, what we’re hearing from overwhelmingly are FBI agents or Naval Criminal Investigative Service agents who talked to Omar Khadr way later, long after he was initially detained,” Coburn told reporters Saturday when challenged about their accounts, indicating his witnesses would pre-date the government’s. “This was just sort of renegade conduct that occurred for a certain period of time, which is, from our point of view… something that poisoned the well.”

This week’s hearing will not resolve Khadr’s case. It’s to adjudicate the defense’s contention that initial mistreatment of Khadr in Bagram “poisoned the well” of evidence that the government can use against him during his scheduled July military commission — hence the testimony of the interrogators on the question of Khadr’s treatment.

But it’s possible that all remaining questions in Khadr’s case — from his treatment in detention to his alleged killing of U.S. Army SFC Christopher Speer — could be rendered moot.

Both the government and the defense have now publicly acknowledged negotiations to resolve Khadr’s case out of court. Anonymous administration officials told The Washington Post that they do not want the first military commission of the Obama administration to be against someone who was a juvenile when he was detained. Additionally, if the government loses the hearing to suppress ostensibly coerced evidence, it could threaten the viability of the commissions themselves, as all other detainees charged before the commissions could potentially cite Khadr’s case to argue that the circumstances of their detention are inherently coercive — thereby weakening the government’s cases against them, even in a forum like the military commissions that afford fewer rights to defendants than civilian courts.

But Coburn said on Saturday that his highest priority was securing the most favorable outcome possible for his client, not potentially assisting other detainees by pressing on with the so-called “suppression” hearing. “I don’t think that either I or Mr. Khadr or the other members of our team are thinking that much about the precedential value of what’s happening here as far as it might effect other detainees,” he said.

Even if there isn’t a plea deal announced this week, there’s another procedural snarl that would, at the least, delay the proceedings. Army Col. Patrick Parrish, the military judge presiding over Khadr’s case, said he would rule Monday on a request by the prosecution to subject Khadr to its own psychological screening — without defense counsel present. The prosecution said when it unveiled its request on court Wednesday that it anticipated needing “five weeks” for the desired examination. That would essentially freeze the suppression hearing in place for approximately a month without a resolution, making it more difficult to open Khadr’s actual military commission on schedule in July.