U.S. Case Against Gitmo Youth Shaken

Secret Testimony That Could Damage Government's Case Accidentally Released

(CBS/AP)  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.

[inventagod]

These lying, murdering terrorists belong in Gito for pulling off the biggest attack on America in history... Of course I mean DickCheney, Rumsfeld, Bu$h and Rice...

[babooph]

Notice none of our future "hopefulls" call for sending Bush & other criminals to Gitmo after the election?The propaganda system will bury the evidence,but without the bill of rights,who needs evidence?

[ramos937]

"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."

Before any fair judiciary in the world, this case by the administration would be laughed out of court. Now, because of a mistake the prosecution made, we learn that the administration cannot prove any part of the charges brought. Before we lose more face, this young man should be set free and the ones that bungled this case be court martialed.

[rbburnerjr]

Maybe Cheney should have waterboarded him.

[dopelgangera]

How did a Canadian as young as 15 years old (or younger, if he had originally arrived in Afghanistan earlier) end up in Afghanistan? If he had an older relative or acquaintance who was a religious fanatic, and that older individual exploited his influence over the youngster and arranged to get him to Afghanistan, then how can it be ethical to try the younger person as an adult in a military trial, even if he is now at least 18?

[walt1944-2009]

The Great Emperor Bush II does not care what the evidence may be that could release anyone from Gitmo.

The Great Emperor claims that once he has decided someone is an "enemy combatant terrrrrrrorist" then that is it! There is no other recourse because the Great Emperor is all knowing since he has been spying on everyone and knows everything about everyone over the past 7 years. Lately, he has been turning his attention towards the business sector to learn everything about what the business sector is doing!

Nothing escapes the survellience of the Great Emperor Bush II (unless he decides it should!) and the neocon Fascist Nazi followers of the Great Emperor. There are "electronic dossiers" out there on millions of citizens in the US(SA) just waiting to be "hacked into" by some "cyber terrrrrrorist" who is smarter than the Emperor''s cyber people!

SIG HIEIL, BUSH!!!!

[pensacola88]

The Afganistan government can declare the end of hostilities and request their citizens to be repatriated back to Afganistan. Maybe they aleady have. Does anyone know? Will the White House tell us?

[pensacola88]

The whole thing stinks like an illegal detainment!

First we said no formal declaration of war was ever made because no actual government represented the terrorists, so prisoners were exempt from POW rules of the Geneava convention.

Then, we said that Afganistan was actually ruled by Osama Bin Laden and his government was toppled and replaced by a democratic governing body, which we later killed by mistake and replaced again. So, there WAS a government that could claim to the the homeland of the prisoners.

It sounds to me like the prisoners actually have a sovereign homeland and have rights, if the new Afganistan government will claim them.

If we are not in a state of war with Afganistan, and they claim these prisoners, then we have no right to hold them, unless we are waiting for an armistice.

Bush is treading on an impeachment hearing if his conduct for this detainment is not resolved quickly. There certainly is reasonable evidence to prosecute a violation of civil rights for the prisoners.

Yes, we can prosecute criminal charges against the President for failing to uphold the constitution.

[rodartista8]

So, a military force goes to your country, bombs your cities and destroys your government and, if you defend yourself you are accused and tried for murder?
And I can see the al-Qaeda being classified as enemy combatants but the Taliban defending their country, aren''t they prisoners of war? We can not support such bizarre conclusions while boasting of being the leaders of civility and democracy. We have become the leaders of hypocrisy

[taddles-2009]

Wow, this governement is so criminaly pathetically incompetent as to defy logic. This kid is held for 6 years and then a tribunal tries to cover up the governments own evidence that disputes the claims against him?!? What sheer stupidity, what utter incompetence...this entire government must be abolished, we must be rid of these lying criminals.