GUANTANAMO BAY NAVAL BASE, Cuba — Lawyers for a Canadian terror suspect accused the U.S. government of blocking their access to evidence and attempting to rush his trial to validate embattled war-crime tribunals at Guantanamo Bay.
Omar Khadr's lead attorney, Navy Lt. Cmdr. William Kuebler, said Thursday he has not been permitted to interview several witnesses in his defense of the former child soldier accused of killing a U.S. Special Forces soldier in Afghanistan.
He said an unidentified U.S. government employee's eyewitness account of the firefight in 2002 could prove Khadr is not an "unlawful enemy combatant," which is required for him to face trial on this U.S. Navy base. But he was clearly angry that prosecutors did not tell him about the classified information until Tuesday — more than five years after Khadr's capture.
"How much other exculpatory evidence is out there behind the black curtain that we can't see?" Kuebler told reporters.
The presiding judge, Army Col. Peter Brownback, postponed a decision Thursday on whether Khadr can be tried by the military as an "unlawful enemy combatant." Khadr did not enter a plea, and no trial date was set.
In a statement, the Pentagon office in charge of the commissions said prosecutors will share evidence as required under the rules for the first U.S. war-crimes tribunals since the World War II era.
‘They can file a motion’
"If the defense believes that the government has not complied with the discovery rules, they can file a motion with the court for appropriate relief at any time," according to the unsigned statement.
Khadr, the Toronto-born son of an alleged al-Qaida financier, answered the judge's questions politely, saying "Yes, sir" and "Yeah." He appeared for the hearing with a short beard and the white prison uniform reserved for the most compliant detainees.
The mystery witness described a 2002 firefight in Afghanistan in which Khadr, then 15, allegedly threw a grenade that killed Sgt. 1st Class Christopher Speer, a Delta Force commando, at an al-Qaida compound, the defense attorneys said.
Kuebler also complained that defense lawyers have been barred from interviewing an FBI agent who deposed Khadr and a U.S. Army officer who led the raid on the alleged al-Qaida compound, even though both are at Guantanamo.
The lead prosecutor, Marine Corps Maj. Jeffrey Groharing, pleaded to present evidence against Khadr, including a videotape that allegedly shows him planting land mines. But Brownback stood by his postponement.
Only unlawful enemy combatants can be tried by the military commissions, according to the Military Commissions Act, approved by Congress and signed into law by President Bush last year. The law sought to legitimize war-crime tribunals that had been declared unconstitutional by the Supreme Court.
Back and forth over ‘unlawful’
Brownback dismissed the charges against Khadr in June because he had not been classified as an "unlawful" enemy combatant. A hastily created military appeals court then ruled that Brownback had authority to attach that label himself.
But the judge said Thursday that there was no need to immediately address Khadr's status because defense lawyers have not formally requested clarification. Brownback also dismissed Kuebler's request that he remove himself for lack of impartiality.
The defense team, meanwhile, has challenged the appeals court ruling and said they were not conceding that the military court has jurisdiction.
In urging Brownback to step aside, Kuebler cited a statement by the judge that he had "taken heat" from Defense Department officials for his dismissal of the charges as proof that he lacked impartiality.
"This commissions system is either going to be an exceptional historical moment ... or a failed legal experiment that we are all going to want to forget," he told the judge.
Critics said Thursday's events reflect flaws in a system that has yet to produce a trial.
"It does question the wisdom of bringing everyone down here for a proceeding with a status and procedure that is still unknown and unknowable," said Jumana Musa, advocacy director of Amnesty International.
Khadr is one of three Guantanamo detainees facing charges under the Military Commissions Act. The military plans to prosecute as many as 80 of the 320 men at Guantanamo. But the Supreme Court may have other ideas. A challenge to the reconstituted system is pending and detainee lawyers have asked the justices to guarantee they can challenge their confinement in U.S. civilian courts.
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