Blog of Rights

Reasonable Doubt

By Jennifer Turner, Human Rights Researcher, Human Rights Program, ACLU at 3:21pm

Opening statements began in the first trial under Obama's military commisions yesterday, and the prosecution called their first two witnesses against Canadian Omar Khadr. The youngest of Guantanamo's remaining 176 detainees, Khadr was captured in Afghanistan eight years ago, when he was 15 years old.

Khadr is accused of throwing the grenade that killed Delta Force Sgt. Christopher Speer. Sgt. Speer's widow, Tabitha Speer, observed the trial today, dabbing her eyes with a tissue when witnesses described her husband's mortal injury in the firefight that preceded Khadr's capture.

More than 1,200 U.S. servicemembers have been killed in Afghanistan since 2001, but Sgt. Speer's death is the only one being prosecuted as a war crime. In fact, this trial is the first prosecution in history for murder in violation of the laws of war (murder is not a recognized war crime; it is usually handled in domestic criminal courts).

Prosecutor Jeffrey Groharing said in his opening statement, "This trial is about holding an Al Qaeda terrorist accountable for his actions and vindicating the laws of war." Defense lawyer Army Lt. Col. Jon Jackson told the jury in his opener, "Omar Khadr did not kill Sgt. Speer. He has been waiting eight long years to tell you that. To tell somebody who can finally listen and who can finally make a difference." He said the only reason Khadr was in the compound where the firefight occurred was because Khadr's father "hated his enemies more than he loved his son."

After opening statements, the Special Ops commander who led the assault on the compound (who can be identified only as Col. W because of a court order protecting his identity), testified about a report he wrote hours after the battle, in which he reported that one of his shooters killed the enemy who threw the grenade that killed Sgt. Speer. His report also noted that in addition to the enemy forces his men had killed, there was one wounded, Khadr. Years later, after an investigative team from the Guantanamo military commissions visited Col. W about the case against Khadr, he altered his copy of the report to indicate that the enemy who killed Sgt. Speer was "engaged" by the Special Ops shooter, not "killed."

A U.S. commando, identified as Sgt. Maj. D, also testified today that there were two individuals alive in the compound when the grenade that killed Sgt. Speer was thrown. He said that after the grenade came from an alley, he shot and killed an adult male in the alley, then shot another sitting with his back to him — Khadr.

None of this testimony is news to those who have followed the case, as these factual issues were raised in pretrial hearings long ago. Given the reasonable doubt cast by today's evidence — not to mention Khadr's age at the time the alleged crime was committed — it is hard to fathom why this case was chosen as the first test case of the Obama-era military commissions.

The first day of the trial ended abruptly when, while cross-examining Sgt. Maj. D, Khadr's defense lawyer collapsed. Lt. Col. Jackson had asked for a momentary pause, stood at attention until the last juror filed out of the courtroom for a five-minute recess called by the judge, and collapsed. The first to come to his aid was the case's chief prosecutor, Jeffrey Groharing, who kneeled down and loosened Lt. Col. Jackson's tie. He was taken out of the courtroom on a stretcher.

Lt. Col. Jackson is the lone defense attorney for Khadr; he is up against four prosecutors who are trying the case. It is unclear what his prognosis is, and how it will affect the trial schedule, but it is inconceivable that the case could continue without Khadr's sole lawyer.

(Originally posted on Daily Kos.)

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