At Guantanamo, Even 'Easy' Cases Have Lingered

Team Infidel

Forum Spin Doctor
Wall Street Journal
December 18, 2006
Pg. 1

Balky Intelligence Agencies, War-Torn Crime Scene Hinder Legal Process; Maj. Groharing's Village Hunt
By Jess Bravin
After an hours-long firefight in an Afghan village called Ab Khail, an enemy fighter hurled a grenade at Sgt. First Class Christopher Speer, causing fatal injuries. For more than a year, Maj. Jeffrey Groharing, a Marine Corps prosecutor, has been trying to bring the alleged killer to justice.
Winning a conviction should have been easy. The suspect, Omar Ahmed Khadr, a Toronto-born teenager whose relatives have ties to al Qaeda, was captured after the July 2002 skirmish and taken to Guantánamo Bay. Under an order President Bush issued in November 2001, Mr. Khadr could claim few of the rights afforded defendants in civilian courts or courts-martial.
But for Maj. Groharing, the case of U.S. v. Omar Khadr, slated for an American military commission at Guantánamo, has been a headache. Intelligence agencies refused to share their files with the prosecutor, fearing their methods or sources might be disclosed. Soldiers who witnessed the incident are scattered across the globe. Defense attorneys hurled a series of legal challenges that paralyzed proceedings. And the crime scene -- a remote village still contested by Taliban fighters -- was all but obliterated by American bombs, making it nearly impossible to conduct an independent investigation.
Such challenges help explain why the Bush administration failed to complete a single Guantánamo trial in the five years before the Supreme Court struck the system down in June. The decision threw into limbo the prosecution of Mr. Khadr and nine other Guantánamo prisoners who were charged prior to the high court ruling. Congress has since passed the Military Commissions Act, which grants defendants some of the rights President Bush previously had sought to deny. But even when the deck was stacked in the government's favor, prosecutors struggled to convict fighters captured overseas amid a continuing conflict.
"At the end of the day, the question is: Can you actually try a case under these conditions?" says Prof. Robert Chesney, a specialist in national-security law at Wake Forest University.
Maj. Groharing acknowledges that the Guantánamo cases have had "some fits and starts," and presented challenges that few other prosecutors face. He says the effort is nonetheless worthwhile.
"What's the alternative? To not hold him accountable? We are certainly not going to give him a pass for killing a U.S. service member and plotting to kill many more," the prosecutor says. "The difference between us and al Qaeda is that when we had him on the battlefield, we didn't summarily execute him," he says.
The U.S. has employed forms of military commissions in past conflicts, most recently World War II, when hundreds of Axis officials and soldiers were tried for offenses such as crimes against humanity and mistreatment of American prisoners of war. But those trials took place after fighting had ended and before the introduction of stricter courtroom and evidentiary standards, as laid out by the Geneva Conventions, the U.S. Uniform Code of Military Justice and other laws.
Air Force Col. Moe Davis, the chief Guantánamo prosecutor, estimates that about 70 of some 435 Guantánamo prisoners will eventually face trial for specific war crimes; the rest will be held until the U.S. determines they no longer pose a threat. Those expected to face military trial include Khalid Sheikh Mohammed and Ramzi Binalshibh, alleged plotters of the Sept. 11, 2001, terror attacks. President Bush transferred them in September from a secret Central Intelligence Agency prison to Guantánamo.
The majority of the defendants are relative unknowns whose alleged crimes fall short of the catastrophic hijacking attacks. Mr. Khadr was selected as an early prosecution target precisely because his case seemed so simple. Of the prisoners previously charged, Mr. Khadr is the only one accused of killing anybody. Sgt. Speer's combat death, alone of the 194 American military personnel killed by enemy fire in and around Afghanistan, is the only one that has prompted a murder charge.
In contrast to some other cases, "we have a crime scene, we have facts, we have witnesses," says Maj. Groharing.
Defense attorneys say the allegations against Mr. Khadr amount to nothing other than taking part in a battle he didn't start.
The Marine attorney assigned to represent Mr. Khadr, Lt. Col. Colby Vokey, initially was barred by his commander from communicating with reporters after filing an affidavit accusing Guantánamo prison guards of abusing detainees. Muneer Ahmad, an American University law professor helping represent Mr. Khadr, says: "It's hard to think this is a case prosecuted solely on its merits without regard to the political benefits to the administration."
Mr. Khadr, he adds, "has been punished for the perceived sins of his family."
Mr. Khadr's father, Ahmed Said Khadr, an Egyptian-born Canadian citizen, was closely identified with extremist Islamic causes. In the 1980s, Ahmed Khadr traveled to Pakistan and Afghanistan, where he became a confidant of Osama bin Laden. In 1993, Mr. Khadr moved his family to Afghanistan, where U.S. authorities say he funneled money to al Qaeda under cover of charity work.
Mr. Khadr's boys trained at al Qaeda-run camps and played with Mr. bin Laden's children, Khadr family members said in interviews with the Canadian Broadcasting Corp. According to Pentagon charges, "while traveling with his father, Omar Khadr saw or personally met senior al Qaeda leaders," including Mr. bin Laden, Ayman al-Zawahiri and Muhammed Atef.
After the U.S. invaded Afghanistan to topple the Taliban regime in October 2001, the Khadrs scattered. Ahmed Khadr was killed by Pakistani forces in an October 2003 battle that also left his youngest son paralyzed.
Omar, meanwhile, "received approximately one month of one-on-one, private al Qaeda basic training" arranged by his father, Pentagon charges say, including "the use of rocket-propelled grenades, rifles, pistols, grenades and explosives."
In late July 2002, U.S. forces picked up satellite telephone transmissions from a village about seven miles outside Khost, Afghanistan, says retired Army Sgt. First Class Layne Morris, part of the unit sent to reconnoiter. Mr. Morris's account of the day is corroborated by contemporary news reports, charging documents and other court papers, including a successful civil suit filed by Mr. Morris and the widow of Sgt. Speer in U.S. District Court in Utah.
The Khadr family's Canadian lawyer, Dennis Edney, contends that suit was illegitimate and that it may color Mr. Morris's credibility.
According to Mr. Morris and press accounts, a detachment of about 40 U.S. soldiers, along with a few allied Afghan militiamen, headed to Ab Khail. Mr. Morris recalls leading a five-man squad to a compound outside the main village, with a mud wall surrounding a homestead with buildings and animal pens.
The sergeant peered through the compound's green metal gate, spotting what he says were well-dressed Arabs with AK-47 machine guns sitting around a fire. "They looked at me and I looked at them," Mr. Morris says.
Mr. Morris backed up, ordered his soldiers into position and called for reinforcements. About 100 villagers were hanging around watching events unfold. About 45 minutes later, the rest of the detachment arrived, including Sgt. Speer. The Americans took cover and sent the Afghans into the compound to inquire further, Mr. Morris says.
The men inside immediately shot the Afghans dead and began firing guns and throwing grenades at the U.S. soldiers, Mr. Morris says. The ensuing battle was ferocious, costing Mr. Morris his right eye, wounding four other Americans and ending only after U.S. F-18s dropped two 500-pound bombs on the compound, destroying it.
U.S. soldiers, assuming the enemy fighters were all dead, advanced on the compound, Mr. Morris says. That's when Mr. Khadr, then 15, allegedly rose and threw a grenade that wounded Sgt. Speer, a 28-year-old medic.
The soldiers shot Mr. Khadr. When they got to his prone body, he begged them, in English, to finish him off, Mr. Morris says. U.S. soldiers said at the time in press interviews they restrained their desire to do so and instead ordered medical treatment. Mr. Khadr survived, but lost most sight in his left eye. His three companions, all Arabs, were dead.
Sgt. Speer, shrapnel lodged in his head, was taken to an Army hospital in Germany, where he died on Aug. 7. Mr. Khadr was sent to Guantánamo Bay.
 
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