Military Judge’s Ruling Likely to Delay Gitmo Hearing

The sun rises over Guantanamo Bay detention camp

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

GUANTANAMO BAY — The military judge presiding over Omar Khadr’s military commission on Monday handed the 23-year old Canadian citizen something he’s grown accustomed to in his eight years in U.S. detention centers: delay.

[Security1]Col. Patrick Parrish today granted the government’s request to conduct an independent psychological examination of Khadr, who is charged with killing an Army Special Forces sergeant in Afghanistan in 2002. That exam, Parrish ruled, must occur before the defense can present its own expert mental-health witnesses in a hearing to argue that Khadr’s statements to his interrogators at Bagram Air Field and Guantanamo Bay ought to be inadmissible before the commission. The effect, said Khadr’s attorneys — who were reading Parrish’s ruling while holding an impromptu press briefing late Monday afternoon — will almost certainly be to pause the hearings for what the ruling calls “a period of four weeks” beginning next Monday.

“My general sense from a quick scan of the order that the judge doesn’t purport to actually compel Mr. Khadr to participate in the examination, but my expectation is that he will conclude that if Mr. Khadr does not participate, then it will be unfair for us to present our mental health testimony,” said Barry Coburn, one of Khadr’s attorneys. “It looks to me that what the judge is intending to do is adjourn, basically stop the hearing for a four-week period after the government completes presenting its evidence, which could occur tomorrow or the day after.”

Parrish’s order instructs defense counsel to advise the court by Friday if Khadr will consent to the psychological exam. Although Khadr’s attorneys said last week that they “tend to think he would not” consent, now that Parrish has ruled in the government’s favor, “I think it’s overwhelmingly likely that he will participate,” Coburn said. If so, then beginning on Monday, May 10, the government will have until June 7 to conclude the exam.

The delay also means a deferral in determining whether the latest version of the government’s military commissions for trying terrorism detainees — what officials hear have taken to calling “Military Commissions 4.2″ — will provide a modicum of justice for defendants. “The government has refused to tender interrogators as witnesses and for deposition by the defense,” said Jennifer Turner, a human-rights expert observing the trial for the American Civil Liberties Union. “The fact that this decision will delay the presentation by the defense witnesses and a real presentation of what happened to Omar Khadr is a concern.”

During opening statements last Wednesday, Coburn’s co-counsel, Kobie Flowers, argued that the government’s desired exam was unnecessary, since the government had “the same access to all the [Khadr mental health] records we have access to” and warned that Khadr would essentially be “incriminating himself by participating in their examination.” But Air Force Cpt. Christopher Eason, one of the prosecutors on the case, argued that the defense “cannot use [mental health] as a shield to protect their client from our experts and a sword to attack our evidence.”

The defense’s mental health experts, retired Army Brig. Gen. Stephen Xenakis and Dr. Kate Porterfield of New York University, intend to testify that Khadr’s youth — he was 15 when captured in Afghanistan — rendered all of the government’s interrogations inherently coercive to a degree that render them inadmissible for trial.

One aspect of that coercion emerged in testimony today from a former Army medic at Bagram called by the prosecution to testify. Khadr swore in his affidavit that while at Bagram, “the soldiers tied my hands above my head to the door frame or chained them to the ceiling and made me stand like that for hours at a time.” Mr. M, the pseudonym given to the medic, testified that on one occasion, he saw Khadr handcuffed to the frame of the outermost door to his cell, with his hands “lightly above eye level, about in line with his forehead” and “some type of a cloth hood” placed over his head.

Khadr sustained bullet wounds to his shoulder about three months before the incident, and Mr. M said that when he removed Khadr’s hood he observed Khadr crying — though more from being “very frustrated” than from pain, in his view. Mr. M testified that the guards placed Khadr in that position for “punishment” for an unknown infraction. He did not state how long Khadr was remained shackled.

Coburn called the testimony “the most substantial” piece of independent corroboration of Khadr’s affidavit to date. “All we have heard from the government, to my knowledge, in response to that affidavit has been skepticism,” he said. “I think it’s quite interesting, really, to see that a witness — not a witness that we called, but a witness the government called — has so directly and substantially corroborated an allegation of what I regard as egregious, inexcusable and repulsive abusive treatment… It’s torture.”

But before Parrish will indicate whether he agrees with Coburn — or, at least, that the behavior Khadr experienced materially impacts the admissibility of his statements to interrogators — the government will get to subject Khadr to psychiatric evaluation. While the government sought in its motion for the exam to exclude defense counsel from attending, Parrish’s ruling does not address that request, and both Coburn and Flowers said they did not expect Parrish to block their attendance. Accordingly, they dodged a question about whether they would premise Khadr’s participation on their ability to observe the exam.

Flowers expressed disappointment with Parrish’s ruling. The government’s psychological exam is “arguably a way for them to re-traumatize this guy,” Flowers said. “I do believe that it’s just completely unnecessary. They can get an expert, like it’s done all across this great country, and read what the reports are, read what the raw data is, and make a decision.”

The prosecution is expected to finish calling its witnesses as early as Tuesday, when the five-day hearing resumes. Parrish informed both the prosecution and the defense at the conclusion of Monday’s hearing that he would entertain arguments on the terms of the exam.

Coburn said that Parrish’s decision meant it was “perhaps a little bit less likely at this moment than it was a couple of hours ago” to keep to the scheduled July beginning for Khadr’s military commission. “I think that’s going to be a great disappointment to Mr. Khadr,” he said, “because he has been anxious to move forward with this.”

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