Khadr’s U.S. defence lawyers have been preparing motions at two levels of the U.S. civilian court system as they seek to derail hearings next week that will lead to his trial in July at the U.S. naval base in Guantanamo Bay, Cuba.
But a new option also appears possible against the backdrop of White House talks with Republican Senator Lindsey Graham of South Carolina, whose main goal is to see the cases of Khalid Sheik Mohammed and his four accused co-conspirators in the attacks of Sept. 11, 2001, taken out of the civilian court system and returned to the military commissions.
It is that Khadr, who faces serious but far less extensive charges than the 9/11 five, could himself be transferred to the federal system.
Graham, whom the White House sees as key to achieving the separate goal of fulfilling President Barack Obama’s inauguration-week pledge of shutting the Guantanamo detention camps, has said only low-level terrorism suspects should be given access to the greater array of defendant rights available in the civilian court system.
But he has also demonstrated that he shares, to an undetermined extent, the discomfort some in the Obama administration have privately expressed over the U.S. prosecution of a suspect who was only 15 at the time of his capture following a 2002 firefight in Afghanistan — and whom the United Nations has argued should be considered a “child soldier.”
Graham told the Wall Street Journal in 2008 that he was “not comfortable on an issue like this with minors” — though he later issued a news release saying he had “merely indicated support for complying with (America’s) international obligations” under a United Nations protocol on the rights of children in armed conflict.
Insiders in Ottawa say the government of Prime Minister Stephen Harper has no particular preference on whether the United States prosecutes Khadr in either a military commission or the federal system — as long as Canada deems the proceeding fair.
One source spoke of secret exchanges between the Foreign Affairs Department in Ottawa and the State Department in Washington.
In New York, Radhika Coomaraswamy, UN Special Representative for Children and Armed Conflict, was recently set to hold a private meeting with John McNee, Canadian ambassador to the UN, on matters concerning Khadr’s fate. Sources close to the prosecution said they are prepared to try the case on all charges in any venue.
Before the military commissions, Khadr is accused of five war crimes offences, including the murder of Sgt. Chris Speer, who died from injuries suffered in a grenade explosion during a 2002 firefight in Afghanistan. Defence lawyers have long maintained the prosecution’s case in the murder charge would collapse in the face of tougher evidentiary rules of a federal civilian court.
Part of the defence thinking is that the prosecution would have no access to Khadr’s statements admitting he tossed the grenade because, the defence lawyers believe, they could successfully argue for their inadmissibility based on rules negating “coerced” confessions.
But sources familiar with prosecution strategy confide Khadr’s statements form only a part of their case in the murder and other charges. While disputing that any of the statements they will present were collected in circumstances that breached any court’s “coercion” threshold, the prosecution believes it can make the murder charge stick even in the absence of any of Khadr’s statements.
Prosecutors would, in part, fall back on evidence they believe helps prove a separate charge that Khadr was involved in a wider al-Qaida “conspiracy” against the United States, sources confide. A central part of that evidence focuses on a video found in the rubble of the compound that Khadr and others with him occupied during the 2002 firefight. It shows him putting together what experts believe is a firing device as he helps in the assembly of a landmine. It later shows al-Qaida suspects planting a landmine after dark.
Aired by the CBS show 60 Minutes in 2007, the video shows Khadr was “still working in furtherance to that conspiracy when this firefight started,” said one source close to the prosecution. This person added the prosecution believes that any jury — whether civilian or the officers of a military commission — “would find that he participated in the firefight” because he was “armed when he was captured.”
The type of weapon prosecutors say was found “on his person” was a Soviet-made Makarov pistol, Canwest News Service has learned. Proving that Khadr took part in the firefight would expose him to the charge of murder under the felony murder rule, which holds he would be culpable even if he didn’t actually toss the grenade that killed Speer. Up to a dozen FBI investigators and U.S. military intelligence officers who interrogated Khadr after his capture will testify at the upcoming Guantanamo hearing, which begins April 27.
Failing efforts in U.S. District and Circuit courts to stall the proceeding, Khadr’s defence team will seek to convince the military judge that the conditions Khadr faced during the interrogations were so harsh that what he said then and subsequently is unreliable. Among mental-health experts called by the defence, an “adolescent brain” psychologist is expected to testify that teenagers are more likely than adults to make “false” confessions.
But prosecutors will also call a slew of doctors and medical personnel, most of them involved in saving Khadr’s life and eyesight following the firefight even as the same medics failed to save Speer, who left a wife and two young children.
By calling the military medics, the prosecution aims to dispel any defence claim that U.S. authorities used denial of medical treatment as an interrogation pressure tactic.
For the defence, the aim of the so-called “suppression” hearing is to have the judge declare “inadmissible” as much prosecution evidence as possible. Khadr faces up to life in prison if convicted — after prosecutors declared they would not seek the death penalty. The Harper government has long rejected calls from human rights activists and others to repatriate him as long as he faces, in the words of the official government line, “serious charges” in the United States.
Based on statements by the White House and U.S. Attorney General Eric Holder, a decision on the prosecutorial venue for the 9/11 co-conspirators and an undetermined number of related matters will be made soon.