GUANTANAMO BAY, Cuba–The war crimes trial of Canadian detainee Omar Khadr has begun with the discovery of a mysterious eyewitness, claims that the process is unfair and continued calls for Canada to intervene.
What it didn't offer was the video the prosecution had hoped to play, which they say shows Khadr constructing bombs and conducting surveillance on U.S. targets.
The 21-year-old Khadr was led into yesterday's hearing unshackled, with a guard on each elbow. Dressed in a white prison uniform, reserved for detainees classified as "highly compliant," Khadr looked considerably older than when he first appeared before a military commission almost two years ago.
He also seemed more relaxed and engaged than at previous hearings, smiling, and leaning his arm over the back of the chair until one of the guards ordered him to put his hands on the table.
Khadr has been detained since he was captured in Afghanistan in July 2002 at the age of 15 as the sole survivor of a firefight with U.S. special forces.
The Pentagon alleges he threw a grenade that killed army Sgt. First Class Christopher Speer during the fight. He is charged under a new U.S. military commission law with murder in violation of the laws of war, attempted murder, conspiracy, spying and providing material support.
The Toronto-born detainee remains the sole Westerner among the 320 prisoners still at Guantanamo.
Unlike other countries that have demanded the release of their citizens, Canada has said it will not intervene in his trial. Khadr's lawyers and civil rights observers here repeated their plea for the Canadian government to demand that Khadr be tried in a U.S. federal court.
During the two-hour hearing yesterday Khadr agreed to have a U.S. military lawyer represent him, resolving the question of whether he would work with an American attorney, or try to represent himself, or boycott the hearing altogether.
Khadr had repeatedly said he would not co-operate with U.S. lawyers.
But the arraignment, at which Khadr delayed his plea on a murder charge and four others, didn't move the case any closer to a resolution, more than five years after he was captured.
No trial date was set but military judge Col. Peter Brownback said the case will carry on, with new defence motions Dec. 7 and Jan. 11.
Outside the makeshift courtroom here yesterday, deputy chief defence counsel Mike Berrigan disclosed after the one-day hearing the existence of a U.S. government witness who might provide exculpatory evidence that Khadr was an "unlawful enemy combatant" when he was captured in Afghanistan in July 2002.
Berrigan said the prosecution surprised the defence team Tuesday night with news of previously undisclosed eyewitness.
The identity of the witness remains classified but was described as a U.S. government representative and an eyewitness, so he could be one of the U.S. soldiers who captured Khadr five years ago.
The issue of whether Khadr is defined as "unlawful" – meaning he engaged or supported hostilities against the U.S. as part of Taliban, Al Qaeda or "associated forces," according to the commission law – is key in deciding whether he can stand trial.
Brownback had dismissed charges against Khadr in June after ruling he didn't have jurisdiction to hear the case because Khadr was classified only as an enemy combatant. A military appeals court in Washington overturned his decision and said Brownback could determine Khadr's status.
Khadr's lawyers are still awaiting a challenge of his case in the U.S. Court of Appeals.
The prosecution was prepared yesterday to show the video recovered after Khadr was captured and call witnesses to bolster their claims that he was an unlawful combatant.
But Brownback agreed with the defence's request to delay that process.
"It is totally outrageous that the prosecution would try to push ahead with a hearing on whether or not Khadr was an unlawful enemy combatant, while all the time withholding from the defence potentially exculpatory information," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch.
"Anyone who has ever gone to law school knows the fundamental legal and ethical rule – the prosecution cannot withhold exculpatory information from the defence."
The last-minute disclosure of the witness is symptomatic of a larger problem of a system "designed to produce convictions,"Khadr's military lawyer, naval Lt.-Cmdr. Bill Kuebler, told reporters after the hearing.
"We're talking about classified information that was out there somewhere and just by sort of happenstance the prosecutor became aware of it and let us know about it,"Kuebler said.
The prosecution defended its actions yesterday in a written statement and said that "as evidence becomes available" it will be provided to the defence.
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