No Security Without Human Rights

Photo: The building behind the tree on the right houses the courtroom (cameras are not allowed inside).

Guantánamo Bay, Wednesday 28 April 2010

The rumours did indeed prove to be true.  Yesterday evening the government did finally approve and release a 280-page Manual for Military Commissions, laying out the rules that are to govern the conduct of Omar Khadr’s and all military commission proceedings.  But his legal team did not receive a copy of the new rules – essential to mounting any legal strategy – until shortly before proceedings were set to get underway this morning.  It came as no surprise, therefore, that they were given a few extra hours to digest the contents.  So the hearing, before it even began, was adjourned to the afternoon.

The whole fiasco was yet one more illustration of how one-sided and unfair this system is.  The judge works for the government, the prosecuting team works for the government, and as the prosecutors are in the final stages of preparing for the hearing the government is writing and finalizing the rules that will govern proceedings.  Regardless of whether they end up being the best or worst of rules, it can’t help but further the impression of the military commission process being lop-sided in favour of the government.

Things certainly began to move quickly once the hearing was underway in the afternoon however.  There was considerable legal jousting back and forth between defence and prosecuting lawyers over a number of outstanding issues. 

Prosecutors are demanding that they be able to carry out their own psychiatric examination of Omar Khadr – but without either his lawyers or his own psychologist or psychiatrist present.  They are also demanding access to all of the notes, studies, test results and other documents that his psychologist and psychiatrist have used in preparing their expert reports.  They also argued that Omar Khadr’s affidavit detailing the many instances of torture and ill-treatment that he says he has suffered both in Afghanistan and at Guantánamo, should not be entered into evidence.  Instead they demand that he should personally testify about everything that is in the affidavit.  That was the one issue the judge did rule on – he decided that the affidavit can be entered into evidence for the purposes of this pre-trial hearing into the question of excluding Omar Khadr’s statements made to interrogators.  He has not ruled on whether it can be used as evidence at the actual trial scheduled to take place this summer.    

For their part, the defence team is seeking access to all individuals who have interrogated him.  They want to be able to interview each of them, to determine whether any should be called as witnesses for the defence.  They estimate that at least 30 individuals (military, FBI and private contractors) interrogated Omar on more than 100 occasions.  To date, they have only been allowed to interview three of them – one of whom provided important information corroborating Omar’s allegation that in one interrogation session he was threatened with rape.  His team also wants an order requiring that Omar’s expert psychologist and psychiatrist, who are serving both as witnesses and expert consultants to the legal team, be paid for their efforts.

After these opening skirmishes, which went on for several hours, suddenly the first witness was called to begin testifying – Special Agent Robert Fuller with the FBI.  He had only provided some of his evidence before the hearing ended for the day.  Special Agent Fuller indicated that he interviewed Omar Khadr six times in October 2002 at Bagram Air Base in Afghanistan.  He testified that the interviews were cordial, involved no abuse or threats, that Omar Khadr was entirely cooperative, and that he saw no signs of pain, fearfulness or disorientation in him.  He has not yet finished his direct evidence and had not yet begun to detail what it is that Omar told him during the interrogations.  And he has, of course, not yet been cross-examined. 

Omar Khadr himself was present all afternoon.  It was quite remarkable to see him first hand after so many years of advocating on his behalf.  We were perhaps only 20 metres away from each other – but we are not allowed to say anything to him or approach him in any way.  He did appear relaxed and engaged and to be actively following the course of the afternoon’s proceedings.  The hearing ended to allow him time to pray at 4:30 pm.

The backdrop to the opening of the hearing has been the endless rumours of plea negotiations between the defence and prosecution.  News reports today indicate that the government may have offered a deal of five years in a US federal prison, no credit for time already served, and a guilty plea to the charges he faces.  That deal was rejected. 

Questions remain as to whether plea discussions continue, and what conditions might be acceptable both to the government and to Omar Khadr.  At this point, all we know is that Special Agent Fuller is back on the stand tomorrow morning and the hearing continues.

Watch the CTV interview with Alex Neve in Guantanamo | Read the USDOD Manual for Military Commissions (2010 Edition)