Age does matter, judge says in Khadr case
U.S. NAVAL BASE GUANTANAMO, Cuba — Omar Khadr’s defence landed a significant break Tuesday as the military judge in the case declared jurors can consider his age in deciding whether he intended to commit a war crime.
Army Col. Patrick Parrish made the statement as prosecution and defence attorneys questioned 15 military officers who represent the potential jurors in Khadr’s military commission trial.
He said Khadr’s age — the Canadian-born terror suspect was 15 at the time he allegedly killed a U.S. serviceman by tossing a hand grenade during a 2002 firefight in Afghanistan — is a “fact that will be in evidence.”
But he also insisted that the commission members — as the jury is known in military parlance — may “give weight” to Khadr’s age because it speaks to the “intent” element present in some of the five war crimes charges he faces.
Jeff Groharing, chief prosecutor in the case, had brought up the question of age when he asked the officer pool whether its members thought Khadr should be held to a “different standard” because of his age when captured, and whether they believed juveniles could be prosecuted for violent crimes.
Parrish intervened just after the officers — 11 men and four women drawn from all four main branches of the U.S. military — agreed with the prosecution’s position that age shouldn’t matter on the issues Groharing raised.
Parrish’s declaration comes a day after he struck a blow against Khadr’s defence by ruling that the most damning evidence against him — self-incriminating statements and a video that apparently shows him making and planting roadside bombs — is admissible at trial.
Selection of the jury, which will continue into Wednesday, marked the opening day of Khadr’s trial at the U.S. navy base in Guantanamo Bay, Cuba.
Khadr, now 23, wore a suit and tie for the first time in court as the jury pool got its first glimpse of him.
At all earlier hearings, the bearded Khadr wore various versions of the galabeya, the traditional Arab tunic issued to the detainees at Guantanamo.
“I’d like to say there was a strategy, there wasn’t,” said Dennis Edney, one of Khadr’s two Canadian lawyer consultants, who is present in Guantanamo. Edney claimed he just happened to find the grey suit and a red-and-white-coloured tie in a closet he stumbled across.
“Everything came together,” he said to laughter among several reporters.
But Edney could not say whether Khadr will yet make good on his pledge last month to boycott the trial at some point.
At least five of the officers will be chosen as jurors and three-fourths of them must agree in order to convict Khadr.
The case for the defence will be argued by army Lt. Col. Jon Jackson, who emerged as Khadr’s only U.S. lawyer after the Toronto native last month fired two U.S. civilian lawyers representing him.
“It is my honour and privilege to represent Mr. Omar Khadr,” Jackson told the jury pool.
He also had Khadr stand up and greet the officers, who sat with mainly stone-faced expressions as he said: “How are ya?”
Jackson proceeded to come close to delving into much of the evidence in the case as he sought to elicit how the officers might react if they are selected to sit in judgment.
At one point Parrish warned Jackson about being too specific about an upcoming witness. The admonition served as a reminder to the lawyer that approval of commission members is restricted to ensuring that those confirmed are impartial.
Still, Jackson did manage to elicit from several of the officers that they might be suspect of statements made by a person who had been threatened with harm.
The self-incriminating statements Khadr made are at the heart of the prosecution case against him in the murder charge he faces.
According to testimony during earlier hearings, Khadr has admitted to a number of interrogators that he tossed the grenade that killed Special Forces Sgt. 1st Class Chris Speer.
But the defence has additionally argued that Khadr made the statements after his first principal interrogator — a soldier who was subsequently convicted of abuse of another detainee — insinuated he might face rape and death if he did not co-operate.
“If they give a statement after a threat of rape or death, I would think . . . survival comes into play (and) you would do whatever you need to do to survive,” said one among the officers, all of whose identities are restricted to rank and service.
Another officer said people threatened would be “traumatized,” while yet another said they would be “more likely to tell what the interrogator wants to hear.”
But one officer was emphatic that people brought up more robustly may not be frightened into telling a particular story.
“It’s an individual thing,” this officer said. “It’s all a matter of where people were raised.
Jackson also raised the question of whether the commissioners, being members of the U.S. military, might be more sympathetic to the testimony of other officers the prosecution is planning to call.
“I understand there is some institutional affiliation, but I think I will be able to weigh the evidence fairly,” said one officer.
Another said commissioners would be “corrupting our own legal system” if they gave undue weight to testimony just because it came from a member of the military.
Groharing drew attention to the government’s dearth of forensic evidence in the case by asking whether the officers believed a conviction was possible in the absence of it.
He also spoke of the “fog of war,” and how the confusion of battle could result in the details of testimony not always coinciding as recollections of events by witnesses vary.
He was particularly keen to ascertain that none of the officers bought into the idea that a soldier entering a theatre of war should simply accept the risk of getting killed.
Several officers interviewed individually had seen combat in Iraq, where one had lost soldiers under his command because of an insurgent ambush.
A navy captain said he believed the Guantanamo detainee camps had presented a “no-win” situation for the United States, while an air force colonel expressed concern that Khadr was being brought to trial as long as eight years after his capture.