Thursday, August 12, 2010 – Globe and Mail
ANNA MEHLER PAPERNY
GUANTANAMO BAY — Omar Khadr’s trial begins in earnest Thursday, with lawyers set to give opening arguments after days of grilling would-be jurors and settling on a seven-person panel to decide the fate of the first person tried in the Obama administration’s war-commissions process.
Next come witnesses for the prosecution and defence; the trial will likely go for weeks before a verdict is reached.
Eight of the original 15 members of Mr. Khadr’s jury pool were dismissed Wednesday, after lawyers made arguments to get rid of potential jurors they worry would not be sympathetic to their arguments.
Prosecution lawyer Jeff Groharing tried to convince military judge Colonel Patrick Parrish to jettison jurors who expressed reservations about Guantanamo Bay, detainee treatment and trying 15-year-olds as adults.
“[Member 16] clearly has a sense of history, and where Guantanamo Bay fits in history and what this means for America. And it was clear he had a negative view of Guantanamo Bay and military commissions,” Mr. Groharing argued in one instance.
To no avail.
“While he believes that the U.S. should become should be a beacon for liberty and moral authority,” Col. Parrish noted, “that is not a basis for a challenge for cause.”
The army lieutenant-colonel whose political views worried Mr. Groharing was dismissed as the prosecution’s single freebie; the other seven would-be jurors let go were at the request of Mr. Khadr’s lawyer Lieutenant-Colonel Jon Jackson. He argued against people who had actively volunteered for jury duty, or who have close acquaintances who were victims of improvised explosive devices – the same form of weapon Mr. Khadr is accused of setting.
Mr. Khadr was in court on Wednesday, the first day of the Muslim holiday of Ramadan, which prohibits observant Muslims from eating during daylight hours. For the second day in a row, he wore a suit and smiled as he entered the courtroom.
The challenge now is for lawyers to win over the final seven military officers – four men and three women – who will decide what becomes of the 23-year-old Canadian. These individuals will decide not only whether Mr. Khadr is guilty, but also what sentence he should get if convicted.
Toronto-born Mr. Khadr is accused of throwing the grenade that killed U.S. army Sergeant Christopher Speer in an Afghan firefight. He’s also charged with attempted murder, material support of terrorism, spying and conspiracy.
Each side has submitted a list of people they hope to bring forward to argue their cases – everyone from U.S. interrogators at Bagram base in Afghanistan to psychologists, psychiatrists and terror experts.
Its initial efforts to bar evidence rebuffed, the defence will draw heavily on testimony and other evidence of alleged torture and coercion in an attempt to persuade jurors not only that Mr. Khadr was mistreated in U.S. hands but also, more significantly, that this treatment renders Mr. Khadr’s following testimony unreliable evidence.
Lt.-Col. Jackson was testing the waters for just such an argument when quizzing jurors on Tuesday, asking them how they would react differently if asked to give testimony while under threat or duress.
During the trial, the defence will call testimony of former army sergeant Joshua Claus, who interrogated Mr. Khadr shortly after the then-15-year-old’s capture in Afghanistan.
In May pre-trial 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 sergeant Claus. He has also been convicted of abusing a different detainee and has left the military.
If the defence hopes to discredit Mr. Khadr’s own alleged admissions of guilt, it will have to convince the jury that his subsequent confessions were tainted by initial interrogations and are therefore inadmissible.
To do this, according to a partially redacted motion submitted last month, they hope to call people who were present at Mr. Khadr’s initial interrogations at Bagram – one who saw him interrogated “on a stretcher, sedated and fatigued,” when “the wounds in Mr. Khadr’s chest were so large that one could fit a can of Copenhagen inside his chest.”
But the defence team likely will have to prove allegations about Mr. Khadr’s mistreatment without using evidence of detainee abuse in other instances.
The prosecution, on the other hand, will have to establish beyond a reasonable doubt that Mr. Khadr committed actions with no eyewitnesses: Although they’re expected to bring forward the person who conducted an autopsy on Sgt. Speer, in addition to numerous people who were present at the firefight or immediately afterward, no one actually saw Mr. Khadr throw a grenade at the man he is accused of killing.
Mr. Groharing made this clear when he queried jurors on their ability to make findings of guilt in a case even without forensic evidence. When asked if they could rely on circumstantial evidence alone, all jurors said they could.
“I think what [Mr. Khadr] has probably as fair a panel as he’s going to get,” said Gary Solis, a retired military judge and military law instructor who is observing Mr. Khadr’s trial for the National Institute for Military Justice.
“We’ve seen the calibre of the counsel and they’re willingness to contest at every step. … It’s going to be a fascinating case, if not a historic one.”
A look at the seven people – all members of the U.S. armed forces – who will decide the 23-year-old Canadian’s fate. Jurors’ identities are protected by a judge’s order; in court they’re referred to by number. They were picked from a panel of 15.
Male navy captain. He feels Guantanamo Bay is “very problematic for the country internationally.”
“It’s kind of a no-win situation, in my view,” he told prosecutor Jeff Groharing. “Bad press, bad relations with other countries. It’s become a political issue.”
He said he had also heard reports of detainee waterboarding but thinks there’s now a “kinder, gentler approach to interrogations.”
The prosecution tried to get this member barred from the jury. The judge denied the challenge.
Female marine colonel. She was wounded while on tour of duty in Iraq in 2003. She and a contractor got lost, she told the court, and stumbled into a firefight; she emerged with a shoulder full of shrapnel after the building they ran to for cover was hit with a rocket-propelled grenade.
When asked what she thought of trying a 15-year-old on murder charges as an adult, she said, “Assuming it’s allowed within our justice system, it should be completed that way – as a fair system.”
Male army lieutenant-colonel with children. He worked as a medic and spent 15 months as a health administrator in Iraqi clinics serving detainees. A good friend he knew from the Walter Reed Army Medical Centre was killed in the 9/11 attacks on the Pentagon.
He said he has family members who practise Islam.
Male navy corporal with children. When he was young, several family members were charged after breaking into a vacant house in the neighbourhood and stealing several items.
Asked what he thinks of trying a 15-year-old as an adult, he said, “I think a 15-year-old is capable of understanding right from wrong, is capable of murder and then appropriately tried.”
Female army lieutenant-colonel. She spent several years with the military police before transferring to the civil service 13 years ago. She now works in the Humanitarian Information Unit, which supplies map-related data for humanitarian emergencies.
Male navy lieutenant-commander with children. He has no views on detainee treatment or the fairness of trying a juvenile in an adult system.
“I’m a submariner: I really don’t deal with Guantanamo Bay,” he said, later adding that, “We’re a nation of laws and the process has to speak for itself.”
Female army major with two children. She works as a comptroller with military intelligence; her friend’s husband was injured by an improvised explosive device in Iraq.
“There are 15-year-olds that commit crimes, and if the legal system says they have to be tried as adults, then that’s the way it should be.”
Anna Mehler Paperny