A military commission judge on Thursday refused to allow a jury to see evidence of torture and abuse of a prisoner as the members consider the length of his sentence.
Omar Khadr, a 24-year-old Canadian, earlier this week pled guilty to murder, conspiracy and material support for terrorism, arising out of his actions as a 15-year-old enlisted to help his father's al Qaeda associates in Afghanistan. Although he maintained his innocence for years, he was reportedly offered a deal of only one more year at the prison camp at Guantanamo Bay, Cuba, and then a transfer to Canada to serve out the remainder of an 8-year sentence. The precise terms of the deal have not yet officially been disclosed. According to military rules, the jury assigned to the case, after hearing testimony and considering documentary evidence, will also recommend a sentence; the defendant gets the lesser of the two terms.
As Khadr's sentencing hearing continued in the Guantanamo Bay courtroom on Thursday, the government presented Tabitha Speer, the widow of Sergeant Major Christopher Speer, who was killed in a firefight in July 2002. Khadr has pled guilty to throwing the grenade that killed him. In her wide-ranging testimony that brought many in the courtroom to tears, Speer emphasized the impact on her two young children of losing their father. Because this is the only case charging an enemy belligerent as a war criminal for killing a U.S. soldier in the "war on terror," Speer is the only survivor to have the opportunity to testify about her loss.
Khadr also spoke for the first time in court today. In unsworn testimony (which is common for defendants in military commissions and not subject to cross-examination), Khadr apologized to Mrs. Speer and to her family for the pain he had caused. He also said that his "biggest dream" is to leave Guantanamo Bay and to "experience the wonders of life," which he said he'd only recently begun to learn about. He also said he'd like to return to Canada, hoped one day to attend King's University College in Edmonton and eventually to become a doctor. An English professor from the small Christian college who has corresponded with Omar over the last two years testified this afternoon as well.
But as a legal matter, the most significant thing that happened in the Guantanamo Bay military commission courtroom today was a ruling from Judge Patrick Parrish that refused to allow Khadr's lawyers to provide the military jury with statements made by Khadr's lead interrogator at the Bagram prison in Afghanistan in 2002. Last Spring, Joshua Klaus (identified only as Interrogator #1 in court), testified that he'd told Khadr a fictitious story about another young detainee who'd been gang-raped and probably killed in a U.S. prison after he refused to cooperate with interrogators. The story was designed to terrify Khadr into cooperating. The same interrogator was later court-martialed for abuse of other Bagram detainees.
The judge also excluded testimony from a medic about Khadr's early mistreatment, and from another interrogator about abusive interrogation tactics used on prisoners at that time at Bagram.
In an earlier hearing Khadr's lawyers argued that those threats, and other mistreatment, tainted Khadr's subsequent confessions. Judge Parrish disagreed and ruled that all of Khadr's confessions would be admissible at trial. Today, faced again with the evidence of Khadr's mistreatment, Judge Parrish ruled that the interrogator's testimony is not admissible for purposes of sentencing, either. "I will not relitigate the suppression motion," he said.
Jon Jackson, Khadr's lead defense lawyer, argued that Khadr's mistreatment in prison is relevant to the sentence he should serve, even if it didn't invalidate Khadr's confessions. Given that Khadr has already pled guilty to everything he'd ever told interrogators about in prison, and much more, his earlier confessions are now irrelevant.
In ruling today, Judge Parrish seemed confused. Earlier this week he'd allowed the government's star expert witness, Dr. Michael Welner, to testify about the conditions in Camp 4 of the Guantanamo prison where Khadr in recent years has been housed, even though Welner had only visited Khadr there once. Yet he was unmoved by the argument that the jury is entitled to hear also the conditions of Khadr's confinement and his treatment during interrogations in his first weeks and months at the prison at Bagram. Bagram eventually became notorious for detainee abuse, which included the killings in custody of at least two detainees there.
Even if Judge Parrish had some reasonable basis for refusing to suppress Khadr's statements due to his early mistreatment, it's hard to understand what reasonable basis might exist for not providing the jury with this information now. Sentencing hearings are supposed to allow the jury to consider all evidence that's relevant to determining a sentence, including evidence of aggravating or mitigating factors.
During the sentencing hearing this week, the prosecution has consistently tried to portray Khadr as an angry, aggressive, manipulative young man who cursed at guards and bragged about his crimes in prison. The defense countered that with witnesses who spoke of Khadr as a model prisoner, gentle and intelligent, a positive influence on other inmates and an ideal candidate for rehabilitation.
But Khadr's treatment in prison is undoubtedly a mitigating factor in sentencing as well. According to the Manual for Military Commissions: "Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the military commission, or to furnish grounds for a recommendation of clemency."
It's not clear how Judge Parrish could have excluded that testimony in accordance with the rules.
Closing arguments are expected on Friday.