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Confusion Clouds Guantanamo Tribunals

By Michael Melia
Associated Press Newswires
February 6, 2008

GUANTANAMO BAY NAVAL BASE, Cuba (AP) - The confusion of combat during an intense firefight in Afghanistan five years ago has led to conflicting testimony that is complicating the case of a Canadian terror suspect, opposing attorneys agree.

Omar Khadr, who was 15 when he was captured, is accused of throwing a grenade that killed an American Special Forces soldier, Army Sgt. 1st Class Christopher Speer, during the 2002 firefight at an al-Qaida compound.

But the emergence in a pre-trial hearing this week of an unidentified witness, who said Khadr was not the only enemy fighter alive inside the compound, shows a real challenge for the new military tribunal system as it weighs evidence clouded by wartime memories.

Both the prosecution and defense blame the "fog of war" for the conflicting testimony. But while the defense says it should exonerate Khadr, the prosecution says it's only natural that soldiers would have incomplete memories of a firefight -- and that the government remains confident of a conviction.

"That is a window onto what happens at war, lots of people with fleeting perspectives in short periods of time," the chief prosecutor for military tribunals at Guantanamo, Army Col. Larry Morris, told reporters Wednesday. "It's not unusual in a situation like that, that different people will have different perspectives."

Khadr, now 21, is one of four Guantanamo detainees charged with war crimes. The military said it expects to prosecute as many as 80 of the 275 prisoners held at this isolated U.S. outpost on suspicion of terrorism or links to the Taliban or al-Qaida.

Meanwhile, attorneys for another of the four, Salim Ahmed Hamdan, a Yemeni and former driver for Osama bin Laden, say their client is confined alone in his Guantanamo cell nearly around the clock and has begun to break down mentally and cannot focus on preparing for his upcoming trial.

Khadr's military trial, the first U.S. war-crime tribunals since the World War II era, is scheduled for May under a special court created by the U.S. Congress in 2006 to prosecute terrorism suspects.

The chief defense counsel for the tribunals, Army Col. Steve David, said it's difficult to secure evidence from military sources who were preoccupied in combat.

"It illustrates the global point of war and fighting a war against terror and then trying to translate and take that and make it a criminal prosecution," David said. "That's a difficult transition to make."

The 2002 raid of the al-Qaida compound by a team of Special Forces soldiers and other U.S. fighters followed a four-hour bombardment by U.S. warplanes. In a hail of gunfire, a small group stormed the complex and quickly shot Khadr and the other suspect, according to the witness.

At first, dust clouds prevented the witness from seeing who threw the grenade, but once they cleared, he saw Khadr and fired two rounds into his back. He later concluded that Khadr threw the grenade based on his position inside the compound and the fact that the other fighter had been firing a rifle, according to a summary of his account.

Morris, the chief prosecutor, said the witness account, recorded in 2004, had been provided to Khadr's defense lawyers a couple years ago and will not damage the government's case.

"We're confident that we'll prove the case beyond a reasonable doubt once we get to the courtroom," he said.

In the Hamdan case, his lawyers asked in a motion ahead of pretrial hearings beginning Thursday for his military tribunal to be halted until his living conditions improve.

"I do not believe that Mr. Hamdan will be able to materially assist in his own defense if his conditions do not improve," wrote one of his civilian attorneys, Andrea Prasow.

Hamdan has been imprisoned on this isolated U.S. Navy base in southeastern Cuba since May 2002. He faces a possible life sentence if the tribunal convicts him of conspiracy and supporting terrorism.

A Guantanamo spokesman, Navy Cmdr. Rick Haupt, said Wednesday that he could not comment on specific allegations. But he said all detainees receive a minimum of two hours of recreation each day. "He's treated like everybody else," Haupt said.

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