By Michelle Shephard
Guantanamo detainee Omar Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges he threw a grenade that fatally wounded a U.S. soldier, according to classified photographs and defence documents obtained by the Star.
The pictures, which were taken following a 2002 firefight in Afghanistan and have never been made public, show the then 15-year-old Canadian covered in bricks and mud from the roof of a bombed compound.
The body of an adult fighter – the unnamed man Khadr’s lawyers contend could have thrown the grenade that killed U.S. Sgt. Christopher Speer – lies beside him.
The photographs were part of an 18-page submission presented earlier this year by Khadr’s former military defence team to an Obama administration task force investigating Guantanamo.
While the defence’s argument that it was physically impossible for Khadr to have thrown the grenade first surfaced at a Guantanamo hearing last year, the military judge would not release the photos or declassify the written submissions.
The Pentagon is expected to announce in the next three weeks whether Khadr’s case will be transferred to a Washington, D.C., criminal court, or go before a military commission. The Toronto-born captive had been charged with five war crimes, including murder for Speer’s death, under the Bush administration’s Military Commissions Act. His case was suspended when U.S. President Barack Obama took over the White House and vowed to shut Guantanamo.
But the evidence contained in the defence document raises doubts as to whether Obama’s multi-agency task force would proceed with murder charges against Khadr.
"Omar is actually innocent of the allegation," write Khadr’s military-appointed lawyers, Cmdr. Walter Ruiz and Michel Paradis, along with his Canadian lawyers, Nathan Whitling and Dennis Edney.
"Omar suffered blinding shrapnel wounds and severe injuries to the legs during the course of a U.S. bombardment that crippled him before the attack."
The documents note that a soldier stood on top of Khadr’s body before realizing someone was buried.
Layne Morris, one of the soldiers injured in the 2002 firefight, is frustrated at the time it has taken to decide Khadr’s fate. In a telephone interview from Utah on Wednesday, he said he doesn’t personally need a trial – "I’ve had closure, if that’s what you can call it." But he added he would be disappointed if Khadr isn’t held accountable for Speer’s death.
"Whether he pulled the trigger or threw the grenade or not, I think he was part of it.
"I think there needs to be a trial so people can say, `Here’s what happened and here’s how it turned out,’ instead of just going on in limbo forever, which it seems to be doing now."
Morris was airlifted from the scene because of an eye wound before Khadr was captured. His injury forced him to retire from the army.
Guantanamo’s chief prosecutor, U.S. Navy Capt. John Murphy, said in an interview with the Star on Wednesday that Obama’s task force is privy to all the classified evidence and interrogators’ notes and he remains confident Khadr will be charged with murder.
Murphy, along with prosecutor Jeff Groharing, also briefed the task force this spring.
"There is a substantial likelihood of conviction based on the evidence," Murphy said, declining to address questions about the photographs or information that had not yet been made public.
Murphy noted that two prosecution witnesses – a female interrogator identified only as Interrogator 11 and FBI agent Robert Fuller – had already testified that Khadr confessed to throwing the grenade.
But one of the greatest challenges facing Obama’s task force in deciding these cases is whether statements made during interrogations will be discounted in court as the product of torture.
U.S. Special Forces shot Khadr twice in the back during his capture, and he was brought to the American-operated prison in Bagram, Afghanistan, in critical condition. During the three months before his transfer to Guantanamo, he was interrogated more than 40 times for up to eight hours a day. His chief interrogator, Joshua Claus, was later court-martialled in connection with the death of an Afghan taxi driver at Bagram.
Khadr claims that during his questioning he was threatened with dogs, hung by his wrists or put in stress positions, despite his injuries. He also alleges he had a hood placed over his head and then soaked with water until he began to suffocate, and had LED lights shone into his eyes, injured by shrapnel.
"Though critics of the Bush administration have at times been too quick to use the word, this can only be described as torture," his lawyers argue in their submission.
Aside from Khadr’s statements, the prosecution’s case also includes an 18-minute video that briefly shows Khadr taping together wires for what look like improvised explosive devices, which have accounted for the deaths and maiming of hundreds of NATO fighters in Afghanistan. The Pentagon also claims he planted land mines (which the defence documents contend Khadr helped U.S. forces "recover without incident").
Khadr’s family has also been a major factor in his case. His father, Egyptian-born Canadian Ahmed Said Khadr, was a reputed financier for Al Qaeda and was associated with Osama bin Laden and his second in command, Ayman al Zawahiri. He allegedly "loaned" Omar, his second youngest son, as a translator to associates within the Libyan Islamic Fighting Group in the summer of 2002. The Pentagon claims Omar trained with the group for a month before his capture. Pakistani forces killed Omar’s father in October 2003.
Prosecutors claim this evidence supports terrorism charges.
But to try Omar Khadr, the Pentagon will have to overcome issues of the Canadian’s age at the time of the alleged crimes – a concern that Radhika Coomaraswamy, the United Nations’ Special Representative for Children and Armed Conflict, has reportedly stressed during recent meetings on Khadr’s case with White House officials.
While juveniles are often charged in criminal proceedings, Khadr was captured during an armed conflict, and international law stipulates that minors should be rehabilitated rather than prosecuted.
(The last prosecution of a child soldier was in the 1940s, following World War II.)
Khadr’s lawyers argued to the task force that Khadr is a perfect candidate for rehabilitation, and they note that an Ottawa parliamentary committee has already approved a plan for him that would integrate mental, spiritual and social programs – and place legal restrictions on his freedom and access to family members.
Retired U.S. Army Brig.-Gen. and psychiatrist Stephen Xenakis is likely one of the people who now knows Khadr most intimately, having spent hours talking with him at Guantanamo in the past two years as part of a court-ordered assessment.
"He’s a very decent young man, very, very decent," Xenakis told the Star. "Kind-hearted, thoughtful, sensitive, and you look at him and you see this kid has had a tragic experience.
"Right now we don’t talk about politics or ideological stuff. My sense is that he disavows all of that.
"Those are early childhood experiences, (and) they’ve been edited in his head so many different ways."