February 5, 2008 A Defense Department document contradicted earlier Pentagon accounts of the 2002 capture of a Canadian 15-year-old as an al Qaeda fighter.
By Carol Rosenberg
GUANTANAMO BAY NAVY BASE, Cuba -- The military Monday mistakenly released a U.S. fighter's account of the 2002 capture of a 15-year-old Canadian in Afghanistan -- describing how the boy was shot twice in the back -- an account the captive's lawyers said cast doubts on the Pentagon's war crimes case against Guantánamo's youngest captive.
In the document, an anonymous fighter with a U.S. forces assault team describes himself as the only one on the American side to fire a shot from the small unit that formed outside a suspected al Qaeda compound where Omar Khadr was captured critically wounded five years ago.
The U.S. fighter said he discovered there were two foreign fighters inside the small compound and fired 15 rounds from his M-4 assault rifle.
One he shot three times and killed.
The other turned out to be Khadr, whom he shot twice in the back.
When he rolled him over, he said, the teen was alive -- repeating ''kill me'' in English.
At issue is, with the revelation that another person was alive and fighting inside the compound, how the military can be certain that Khadr threw a grenade that killed Sgt. 1st Class Christopher Speer, 28, in the firefight.
''Whatever the rules of engagement were, I can imagine, you know, nobody having seen who threw that hand grenade, that the U.S. government found itself in a bit of an awkward position with a 15-year-old Canadian boy with two gaping bullet wounds in his back who it turns out had been sitting down facing away from the fight when he was shot by U.S. soldiers,'' said Navy Lt. Cmdr. William Kuebler, Khadr's Pentagon appointed lawyer.
It was unclear what, if anything, the disclosure of the document would do at trial.
It was already part of a secret attachment to the case being prepared for a May trial by U.S. military officers. But Kuebler said it underscored his argument that, rather than permit the Bush administration to try Khadr as a war criminal combatant, Canada should ask for his return.
Khadr, now 21, was born in Toronto to a fundamentalist Muslim family that moved between Canada, Afghanistan and Pakistan and kept company with al Qaeda founder Osama bin Laden.
The Pentagon calls him a terrorist who conspired with al Qaeda, spied on U.S. forces in Afghanistan and committed murder by throwing the grenade.
His lawyers argue that he is a victim of al Qaeda and should not go to trial.
Monday's hearing was called for oral arguments on law motions -- the Pentagon arguing that Congress granted it the power to charge juveniles and adults alike with war crimes, the defense countering that that meant a 5-year-old could face possible execution by a military commission.
''The accused and the terrorists he was working with belong to no legitimate army. He belonged to al Qaeda,'' said the prosecutor, Marine Maj. Jeffrey Groaharing.
Kuebler countered that just because Congress didn't create an exception for children when it wrote the laws governing Guantánamo war crimes trials, it didn't intend ``a one-size-fits-all justice system.'
Throughout much of it, the now 6-foot-1 Khadr sat cupping his chin in his hands in white prison garb.