Saturday, August 14, 2010 – Globe and Mail
ANNA MEHLER PAPERNY

GUANTANAMO BAY — Eight years after he was taken into U.S. custody, five years after charges were first filed and just a day after opening arguments, the latest obstacle to Omar Khadr’s war-crimes trial going forward is not a defence motion, a Supreme Court ruling or a president hoping to close Guantanamo Bay. It is one lawyer in a lot of pain.

Lieutenant-Colonel Jon Jackson, the military-appointed lawyer Mr. Khadr tried to fire last month and the only person authorized to represent him in the trial that could lock him up for life, was to be evacuated from Guantanamo Bay after collapsing in court Thursday.

The medical emergency throws Mr. Khadr’s trial into disarray, imposing a 30-day delay on a trial that was just beginning after years of false starts.

Now the seven-person military jury will head home, with strict but challenging instructions not to discuss or read about the case for the next month. Witness, judge and lawyer schedules must be reorganized in anticipation of a date to be determined once a battery of tests give Mr. Khadr’s sole official defence counsel a clean bill of health.

The month-long hiatus also provides more time for a possible plea bargain, says Audrey Macklin, a University of Toronto law professor who has acted on Mr. Khadr’s behalf in Canadian court proceedings.

Negotiations had taken place prior to the trial beginning. Mr. Khadr said in a statement, later corroborated by Dennis Edney, the Edmonton-based lawyer representing the Khadr family, that the Pentagon had offered him a plea deal earlier this year that would see him serve five years in Guantanamo Bay and an additional 25 years in prison in Canada.

Still, it’s a frustrating setback for a defence team that was just beginning to work together. Mr. Khadr, who last month slammed the war commissions as a “sham process” and vowed to boycott proceedings, has appeared in court every day this week while fasting for Ramadan. He also donned a suit at his lawyer’s suggestion and got a hair cut.

But the deputy defence counsel for Guantanamo Bay’s war tribunals insists this doesn’t change the status of Mr. Khadr’s case.

“Nothing has changed with the Omar Khadr case except the timetable. Our goal is to make sure he is most ably represented as possible,” Bryan Broyles said. “And right now that is Lieutenant-Colonel Jon Jackson.”

Col. Jackson has been the only person able to act on Mr. Khadr’s behalf in court since the 23-year-old Canadian fired his two U.S. civil lawyers last month – less than two weeks after the military lawyer had undergone gallbladder surgery.

His current medical condition is unclear, although Mr. Broyles said the 39-year-old was in a great deal of pain even after being hospitalized and put on morphine late Thursday.

“Suffice it to say, it’s unsurprising given his recent history,” he said. “Six weeks ago he had surgery; two weeks after that he was in court; then we were here.”

Some have raised concerns that defending the first person to contest a trial under President Barack Obama’s revamped military tribunals is too big a job for one person. Col. Jackson’s predecessors in Mr. Khadr’s case, of which there have been close to a dozen, have worked in pairs.

But there appears to be no plans to give Col. Jackson any backup. He has been working closely with Mr. Edney, but without U.S. citizenship, Mr. Edney can’t represent Mr. Khadr in Guantanamo Bay.

In court this week, Col. Jackson appeared to be holding his own against a four-person prosecution team – both convincing military judge Colonel Patrick Parrish to grant most of his requests to exclude jurors he deemed problematic and casting doubt on the testimony of the prosecution’s first two witnesses Thursday.

Mr. Edney declined to comment on the evidence the first witnesses brought forward this week. But he said Mr. Khadr seems more willing to participate in a trial grinding slowly forward despite his lawyers’ efforts to prevent it entirely.

“It’s every day at a time. We’ve spent a lot of time trying to reassure Omar, to control his fear of the process. And he’s very interested.”

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The long and twisted road to trial for Omar Khadr

July 27, 2002: Omar Khadr is taken into U.S. custody after a firefight in a village near Khost, in eastern Afghanistan.

October, 2002: Mr. Khadr, now 16, is transferred to Guantanamo Bay. No charges laid yet, but U.S. officials allege he killed U.S. Sergeant 1st Class Christopher Speer.

November, 2005: U.S. government formally charges Mr. Khadr, now 19, with conspiracy, murder, attempted murder and aiding the enemy.

January, 2006: Mr. Khadr makes his first court appearance, wearing a Roots Athletics T-shirt.

June/July, 2006: U.S. Supreme Court declares Guantanamo military commissions process illegal, effectively dismissing ongoing charges – including Mr. Khadr’s. The Bush administration mulls creating special terrorism courts.

February, 2007: New charges filed against Mr. Khadr, including murder, attempted murder and material support for terrorism.

June, 2007: Military judge dismisses all charges against Mr. Khadr in what would have been the beginning of the 20-year-old’s trial, saying the prosecution failed to label him an “unlawful” enemy combatant.

September, 2007: U.S. military appeals court sides with government, reinstates all charges against Mr. Khadr.

November, 2007: Trial set to start when Mr. Khadr’s defence team discloses a secret witness whose testimony, they argue, casts doubts on whether Mr. Khadr was an unlawful combatant.

February-December, 2008: Khadr case back in court and mired in multitudinous pretrial motions as defence feuds with government on access to information and the validity of the charges themselves. Trial date pushed back multiple times.

January, 2009: Newly inaugurated U.S. President Barack Obama requests 120-day adjournment of all Guantanamo war commissions proceedings as he announces the closing of Guantanamo Bay within a year.

November, 2009: Mr. Obama unveils revived, revamped process for war commissions.

April/May 2010: Hearings continue into pretrial motions, this time regarding the admissibility of evidence Mr. Khadr’s lawyers argue was obtained through torture.

July, 2010: Pretrial hearings pushed back when Mr. Khadr fires civilian U.S. lawyers.

August, 2010: Pretrial motions end. Jury selected. Opening arguments made.

Anna Mehler Paperny