U.S. Case Against Gitmo Youth Shaken

The detention of a young Canadian arrested in Afghanistan at age 15 and charged with acts of terrorism has been a lightning rod for opponents of the Bush administration's policies regarding terrorism detainees who have been denied the same legal rights accorded prisoners of war.

Now, as the first U.S. war-crime tribunals since the Second World War era begin at the military base in Guantanamo Bay, the trial of Omar Khadr has taken a shocking turn that has increased calls for his release.

The United Nations Children's Fund (UNICEF) expressed its concern that Khadr's trial on charges of war crimes allegedly committed when he was 15 years old, "in particular in front of a military commission not equipped to meet the required standards, would set a dangerous precedent for the protection of hundreds of thousands of children who find themselves unwittingly involved in conflict around the world," the agency said in a statement.

Church groups and international rights organizations, including Amnesty International, Human Rights Watch, and the Coalition to Stop the Use of Child Soldiers, have asked Prime Minister Stephen Harper to request that Khadr either be tried under juvenile offender laws or be sent back to Canada.

And now, a secret government document mistakenly handed to reporters attending the trial appears to contradict the Bush administration's charges against Khadr, throwing his trial into a tailspin.

Khadr was 15 when he was captured after a 2002 firefight at an al Qaeda compound in Afghanistan. He is accused of throwing a grenade that killed an American soldier, Army Sgt. 1st Class Christopher Speer, a Special Forces commando. Khadr has been held in detention ever since.

Prosecutors said Khadr, who is now 21, was the only person alive at the compound (which had been hit by U.S. air strikes), and so was the only person who could have thrown the grenade that fatally wounded Speer.

On Monday, reporters attending the tribunal were handed a packet of pretrial motions by a spokesperson for the Office of Military Commissions, which included previously classified testimony by an unnamed witness who said Khadr wasn't the only living person at the scene, and may not even have been in a position to throw a grenade at all.

The 5-page document was based on an interview with an eyewitness identified as "OC-1," who shot Khadr twice in the back.

In the testimony, OC-1 states that upon entering the compound he saw a man lying on the ground, facing him and moving, with an AK-47 next to him. OC-1 fired one round, striking the man in the head, killing him. Afterwards, OC-1 spotted a second figure (Khadr) facing away from him. OC-1 fired two rounds, which struck Khadr in the back.

A Pentagon spokesperson would not identify to what unit or agency OC-1 belonged.

While OC-1 states that he believes only Khadr was in a position to throw the grenade, he did not see him do so. But his admission that there was another person who could have been the assailant contradicted previously reported facts in the case.

The Toronto Star reports that the release of the document caused a stir outside the military courtroom, when a security official - realizing the mistake - asked reporters to return the papers immediately, and threatened those who did not do so with being locked out of future hearings.

The journalists refused, and after an hour and a half of negotiations, it was agreed that the documents could be kept as long as certain identifying information (such as the names of soldiers in relevant units, dates and locations, as well as Khadr's prison number) be withheld. The Star noted, dryly, that most of that information was already in the public record.

Khadr's lawyer told reporters that the eyewitness testimony (which he claimed exonerated his client) might have never been made public if not for the mistake, and that the entire episode belied the Pentagon's claims of transparency in its tribunals.

"There's no openness about this process," Navy Lt.-Cmdr. Bill Kuebler, Khadr's military lawyer, said after the hearing.

The revelation shocked a former Green Beret, who was blinded in one eye during that 2002 firefight. "Everyone had told me from the get-go that there was only one guy in there," Layne Morris told the Toronto Star from his Utah home.

Meanwhile, The Globe and Mail is reporting that the Army's charge sheet against Khadr has been amended to add conspiracy charges in the death of two Afghan military personnel. The charges state that "On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members."

When asked by reporters about the charges, Guantanamo's chief prosecutor, Army Colonel Lawrence Morris, admitted that the Afghans' bodies were removed from the scene and so sufficient evidence could not be obtained about who fired at them, but that did not mean the government has to show that Khadr actually killed the two men himself.

"Mr. Khadr is charged as a principal, meaning he did not have to commit the act directly so long as he was in concert with and shared the criminal intent of those who did the shooting," Morris was quoted in The Globe and Mail. "We see this all the time in instances such as bank robberies, where the driver of the getaway car is still responsible for the theft, as well as any harm to persons that might ensue while he is outside with the motor running."

Defense lawyers also said that a 2002 treaty signed by the United States which treats child soldiers as victims rather than war criminals is being ignored.

In response, prosecutors said the Military Commissions Act, which Congress passed in 2006, did not make a separate distinction for juveniles when it set up procedures for trying individuals classified by the government as enemy combatants.

A murder charge against Khadr was thrown out by a military judge last year, who said the military commissions did not not have jurisdiction over his case.

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