New twist in Guantánamo hearing draws fire

Defense attorneys for accused illegal combatant Omar Khadr, a Canadian national, say they have only just been told by US prosecutors of a potentially exculpatory witness, more than five years after US forces captured Mr. Khadr in Afghanistan. The revelation casts further doubt on the fairness of the military commissions established to try "unlawful enemy combatants" being held at the US Naval Base at Guantánamo Bay, Cuba. Canadian broadcaster CTV reports that Lt. Cmdr. William Kuebler, Khadr's trial attorney, only learned of the witness this week as the judge began to hear arguments as to whether Khadr could be tried by military commission. Commander Kuebler accused the US government of trying to hide the witness, described as a US government employee.

"It's an eyewitness that the government has always known about," said Kuebler. "They weren't going to tell us who he was or how to get in touch with him or where he was. Their theory is that they've done their investigation and they've disclosed everything they have to disclose. And we don't necessarily have an entitlement to talk to people who were actually at the scene of the crime."

Khadr, who was 15 at the time of his July 2002 capture in a firefight in Afghanistan, is charged with murder, attempted murder, conspiracy, and spying. He has been held at Guantánamo since November 2002. Kuebler's concerns about the previously unmentioned witness were echoed by Michael Berrigan, the deputy chief military defense lawyer for the Guantánamo cases, reports The New York Times.

"How we can have newly discovered evidence is beyond me," since prosecutors have been pursuing charges against Khadr for years, Mr. Berrigan said. The lawyers said they could not describe the witness because prosecutors told them the information was classified. "Every time you all come down here you see the problems in this process," Berrigan said. Spokesmen for the military said prosecutors turn over information that could help a defendant when they learn of it. The military prosecutors declined to answer questions from reporters.

The Los Angeles Times writes that the evidence from the new witness relates to whether Khadr had a right to be taking part in the fighting in Afghanistan as a "lawful enemy combatant." The US military commissions were established by Congress last year to try "unlawful enemy combatants," and were Khadr found to be "lawful," the commissions would have no authority to try his case.

The commissions brand the Taliban, Al Qaeda and "associated forces" as unlawful combatants, but defer to Geneva Convention definitions on who is considered a lawful combatant. Lawful combatants include members of an enemy country's armed forces, captured soldiers entitled to prisoner-of-war protections, or those meeting four conditions for "irregulars": that they are under the command of a recognized leader, wear a uniform or insignia recognizable at a distance, carry arms openly, and conduct operations in accordance with the laws and customs of war. Guantánamo detainees were subjected to Combatant Status Review Tribunals three years ago to determine whether they were enemy combatants. But the military commissions rules written by Congress last year required that status reviews specify whether each detainee was fighting lawfully or unlawfully, a distinction not addressed during the previous status hearings.

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