Tuesday, August 10, 2010 – Globe and Mail
ANNA MEHLER PAPERNY

GUANTANAMO BAY, CUBA — A Guantanamo Bay military judge has dealt a blow to Canadian Omar Khadr’s legal case: All the confessions the prosecution wanted to submit at his war-crimes trial are fair game.

The decision, coming late Monday afternoon, supports the prosecution’s argument that threats of gang rape and alleged abuse in one interrogation do not taint confessions in another.

It dramatically strengthens the most serious charge against Mr. Khadr – that of murdering a U.S. Army sergeant in an Afghan firefight at the age of 15. If convicted, the 23-year-old could face life imprisonment.

Now, after formally entering a not guilty plea on his client’s behalf, Mr. Khadr’s lawyer will have to convince a panel of military jurors that the evidence against Mr. Khadr is “poisoned,” unreliable and that the case falls apart without it.

Although the decision’s implications for Mr. Khadr’s trial are clear, the effect on future war-commissions cases is not. In a system without precedent, whose rules are being made up as it goes along, it’s hard to know what effect this will have on the way judges treat evidence allegedly elicited through coercion or torture.

Mr. Khadr’s defence team has long argued that his testimony before U.S. military interrogators, including confessions to throwing the grenade that killed Sergeant Christopher Speer, can’t be used in court because of his treatment in American hands.

In May hearings, a man identified as Interrogator 1 said in testimony that he threatened Mr. Khadr with being gang-raped to death if he did not co-operate. That interrogator was later identified as former U.S. Army Sergeant Joshua Claus. He has also been convicted of abusing a different detainee and has left the military.

Mr. Khadr’s military-appointed lawyer, Lieutenant-Colonel Jon Jackson, argued this instance, as well as other alleged instances of torture and coercion, are enough to render any future confessions – even those in so-called “clean” interrogations – inadmissible in court.

“The well was poisoned: The government can’t cleanse the well by saying, ‘Well, someone else came in and was nice to him,’ ” Col. Jackson said.

Not so, the prosecution countered: All the confessions and testimony it plans to bring forward were freely offered by Mr. Khadr to people who treated him well.

“This evidence was voluntarily given,” said prosecutor and U.S. Air Force Captain Christopher Eason.

“They asked open-ended questions and he responded in the narrative. No threats, no induced testimony, no promises. They never yelled.”

Military judge Colonel Patrick Parrish sided with the prosecution.

Mr. Khadr was in court all day Monday, seated next to his lawyers and dressed in the white prison garb granted the most co-operative detainees. He glanced around the courtroom on entering and leaving, raising his eyebrows at a paralegal seated near him. But he appeared oblivious to much of the proceedings, shoulders hunched as he leaned in to read a soccer magazine.

But after hearing Col. Parrish’s decision, Canadian lawyer Dennis Edney said Mr. Khadr turned to him and said, “We’re embarrassing ourselves by being here.”

In a strident statement before court last month, Mr. Khadr slammed the military commission, calling it a “sham process.”

In an interview, Col. Jackson said the defence was prepared for its motion to be denied. “It’s clear those statements made by Mr. Khadr were the product of torture. We’re hopeful that although the judge didn’t see it that way, the panel members will. They’re the ultimate judges in this case.”

Now, Col. Jackson needs to make his case before a jury of military officers. The panel is being chosen Tuesday from a 15-person pool. The trial is set to begin immediately afterward.

The judge’s decision means a plea deal is far less likely, said Lieutenant-Colonel David Frakt, a military lawyer who has defended two prominent Guantanamo detainees.

With a conviction on at least one of Mr. Khadr’s five charges almost inevitable, Col. Frakt said the case is largely about the sentence.

“What is the appropriate punishment for a young man – I mean, a boy, – who was forced into the family business of working with al-Qaeda at the age of 14 and who’s already spent eight years in captivity because of it? … It will be a test of the jurors, the American military officers’ ability to differentiate between a real terrorist and someone who was a bit player, at best.”