Today's hearing in the military commission case of Omar Khadr was once again fraught with confusion, complication and delay. This time the problem appeared to be the military judge's refusal to question military procedure - even when it might be causing significant harm to the defendant.
Omar Khadr, the Canadian detainee seized and imprisoned by US authorities in Afghanistan when he was 15 years old, has consistently cooperated with the military commission and followed its rules and procedures. When he sat in the courtroom yesterday, for example, he was leaning forward attentively, apparently following every word as the lawyers argued over the admissibility of evidence and an FBI agent took the stand to testify against him. He made no sign of being uncooperative, and observers at his previous hearings say that's consistent with how he's always behaved in hearings. But something was different today.
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The Morning Session
When observers arrived at the hearing this morning, we learned that Omar Khadr would not be attending. Based on the testimony of a military captain who'd attempted to bring him to court this morning, he'd had severe pain in his left eye. Khadr is blind in that eye due to shrapnel wounds arising out of in a firefight with U.S. forces in Afghanistan in 2002. This morning it was causing him severe pain, he said. His lawyer said the entire left side of his face was beet red.
Khadr was taken to a medical clinic where he received eyedrops. He then confirmed that he still wanted to attend his hearing. But he was forced to put on what the military calls "eyes and ears" - tight-fitting blacked-out goggles and ear muffs that completely block out sight and sound. Although that's standard operating procedure when a detainee is transferred outside "the wire," the captain testified this morning, yesterday evening was the first time that Khadr had been required to keep the goggles in while sitting inside the military vehicle - which has no windows. Khadr first complained of eye pain yesterday afternoon.
How is wearing goggles and ear muffs necessary inside a completely enclosed windowless military van necessary for security? His lawyers asked this morning on cross-examination.
The military's witness couldn't say. "My understanding was that it's SOP," she replied. She added that Khadr said that he didn't want to wear the "eyes and ears" because "the reason is just to humiliate us."
But Khadr's defense lawyers weren't so sure. Barry Coburn, his lead civilian defense attorney, offered to bring in witnesses, including a doctor and retired military general who'd examined Khadr, who would explain the pain Khadr seemed to be in and why tight-fitting goggles would be a very bad idea.
That didn't interest the judge. "This commission is not going to second-guess the security procedures required by JTF-GTMO," he announced. "It is not the commission's responsibility to second guess decisions by security officials about what's needed to transport detainees from location A to location B."
But what if those procedures are unreasonable, unnecessary, and causing the detainee extreme pain? In a civilian federal court, a judge would surely probe newly-imposed detention conditions that appeared to have no valid purpose and were deterring a defendant from attending his own trial. But Judge Parrish was not going to go there.
Coburn raised another point: the new military commission rules say that Khadr has the right to be present at his hearing, and that any refusal to participate must be "voluntary." Is it "voluntary" if Khadr is not participating because he's in pain, and because the procedures suddenly changed just as his trial got underway?
The judge hesitated. But it wasn't the pain or the question of Khadr's voluntariness that was concerning him. Rather, it was that a rule appeared not have been followed.
Having instructed someone to search the record, the Judge realized that, in true U.S. military commission style, Omar Khadr, although arraigned twice before in two different incarnations of the military commissions - he was charged first in 2004 and then again in 2007 under the Military Commissions Act - had never been read his rights. The military commissions have always required informing the detainee that he has a right to appear at his hearings and that the proceedings may continue without him if he voluntarily chooses not to. But apparently, no judge had ever before told him that.
Uh-oh, looks like a rule was broken. "I don't feel comfortable proceeding until I know he was so advised," said Judge Parrish.
So Judge Parrish told the defense lawyers that he could either have Khadr forcibly dragged to court so that he could read him his rights, or his defense attorneys could convince their client to appear - or get his consent not to, and report back to the court.
The Afternoon Session
Ultimately, Omar Khadr chose to appear in court rather than be forcibly dragged there. But it was clear he was in serious pain. From where I was sitting behind him, I could see him hunched over, his head in his hands, and a wad of tissues in one hand. When the judge read him his rights, he quietly said he understood, but he sounded like he was crying.
The judge seemed unconcerned, and proceeded with the hearing. It was not one of the military commission's finer moments.
After the hearing, I spoke to General Stephen Xenakis, who's been retained as a medical expert by Khadr's defense counsel. A retired military general and practicing physician, he'd examined Khadr during the break and concluded that he was suffering from extreme conjunctivitis, exacerbated by his shrapnel wounds, or worse. And he was suffering from high blood pressure which was adding pressure to his eye and worsening the pain. The eye drops he'd been given, Xenakis said, dulled the pain for only an hour. They hardly solved the problem.
"If I were the general in command of this base I would make sure he sees an ophthalmologist," said Xenakis, who added that the goggles Khadr was forced to wear were surely aggravating his condition.
Too bad there is no ophthalmologist available on the Guantanamo Bay military base.
At a press conference late this afternoon, a spokesman for JTF-GTMO said that Khadr had not actually seen a doctor at the clinic this morning. He would, however, be taken to see some sort of doctor this evening, and an optometrist - a non-medical health care provider who measures vision and fits eye glasses - would see him sometime tomorrow.
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