Khadr secret document released by accident

Toronto Star
by Michelle Shephard
February 4, 2008

Five-page memo reveals that Toronto-born man not the only one alive in compound when U.S. soldier killed

GUANTANAMO BAY — A classified document mistakenly released to reporters today revealed that Omar Khadr wasn't the only one alive in an Afghan compound when an American soldier was fatally wounded.

Toronto-born Khadr was captured in Afghanistan at the age of 15 following a lengthy firefight with U.S. forces. The Pentagon has charged Khadr with five war crimes, including the murder of Christopher Speer, a Delta Force soldier and medic who died 10 days after the firefight from grenade wounds.

The five-page secret document is based on an interview with the man who shot Khadr twice in the back. Identified only as OC-1, the witness described to an interviewer what he saw after the grenade was thrown in the July 27, 2002 attack.

"He heard moaning coming from the back of the compound. The dust rose up from the ground and began to clear, he then saw a man facing him lying on his right side," the report states.

"The man had an AK-47 on the ground beside him and the man was moving. OC-1 fired one round striking the man in the head and the movement ceased. Dust was again stirred by this rifle shot. When the dust rose, he saw a second man sitting up facing away from him leaning against the brush. This man, later identified as Khadr, was moving . . . OC-1 fired two rounds both of which struck Khadr in the back."

A Pentagon spokesperson would not confirm whether OC-1 was part of Speer's Delta Force team, the other military units involved in the attack, or from another U.S. agency such as the CIA.

The report also states that OC-1 deduced that it was Khadr who threw the grenade due to his position, and because the other man was firing a rifle at the same time.

"Based on his extensive combat experience, OC-1 believed that Khadr and the man at the back of the alley with the AK rifle were the only two alive at the time of the assault. He felt that due to the grenade being thrown simultaneously to the directed rifle fire that the grenade was thrown by someone other than the man who was firing the rifle."

Controversy erupted outside the military courthouse when it was revealed the document was inadvertently given to reporters attending the trial. At first, a court security official said the document must be returned and that reporters might not be allowed to attend future hearings if they didn't comply. After reporters refused, and following 90 minutes of negotiation, it was agreed that only the names of the soldiers and their units, Khadr's prison number and specific dates and locations in the report couldn't be revealed. With the exception of three names in the document, all those facts have already appeared in media reports.

The document had accidentally been attached to pretrial motions that were given to reporters by a spokesperson for the Office of Military Commissions and Guantanamo's Chief of Defence. If the document had not been released by mistake it would noy have been made public, leaving some to question the Pentagon's assertion that the Guantanamo trials will be transparent.

"There's no openness about this process," said Khadr's military lawyer Navy Lt.-Cmdr. Bill Kuebler after the hearing. "It's not that the government shouldn't be able to protect information when there is a legitimate need to protect it, it's the government's overuse of classification . . . that basically keep one hundred percent of the evidence in the case outside of the public's view except if the government decides to sort of dribble it out to you."

Khadr appeared at the hearing this morning wearing a white prison uniform, indicating he is one of Guantanamo's "highly compliant" detainees. His hair was cut short and his beard was full. Unlike his November appearance where he seemed relaxed and confident, Khadr spent most of the morning session writing notes to his Canadian lawyer Dennis Edney and drawing with a pen the guards gave him.

In addition to the charge of "murder in violation of the laws of war," Khadr is charged with attempted murder, spying, conspiracy and providing material support to terrorism.

His lawyers argued today that his upcoming May trial should be dismissed, challenging among other things the legitimacy of the process and whether crimes such as conspiracy and spying constituted war crimes.

Kuebler also argued that when Congress endorsed the Military Commission Act, under which Khadr is charged, it didn't envision the prosecution of detainees under the age of 18 at the time of the alleged offence. Prosecutors countered that Congress was aware of Khadr's case when approving the 2006 law and did not specify an age requirement for trials.

Col. Peter Brownback, the military judge presiding over Khadr's case, did not render any decisions on the motions before recessing for the day.

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