Judge sides with Khadr defence team

OMAR EL AKKAD

Globe and Mail Update

March 14, 2008 at 3:49 PM EDT

A U.S. military judge has sided with Omar Khadr's defence team and ordered that a senior U.S. officer be deposed before Mr. Khadr's trial begins.

In a ruling issued Friday, Army Colonel Peter Brownback sided with the defence on five motions, granting Mr. Khadr's lawyers more access to a variety of information the prosecution had until now refused to hand over.

One of the most important rulings regarded a U.S. officer named "Lieutenant Colonel W.," who wrote a report about the 2001 Afghanistan firefight where Mr. Khadr is alleged to have killed a U.S. soldier. In a copy of the report dated the day after the firefight, the Lt.-Col. wrote that the U.S. soldier's attacker was subsequently killed by other soldiers.

In an almost identical copy of the report written several months later, that reference is altered to say that the U.S. soldier's attacker was only "engaged" by other soldiers, implying the attacker — alleged to be a then-15-year-old Mr. Khadr — lived.

Because of the discrepancy in the two reports, Mr. Khadr's defence team asked for access to the Lt.-Col. so he could be questioned before the trial begins. Over the objections of the prosecution, Judge Brownback agreed with the defence, saying the taking of testimony "is in the interests of justice."

The judge also ruled that the prosecution must provide to the defence a list of all personnel who interrogated Mr. Khadr. If the defence wishes to interview any of those personnel, the judge ruled, the prosecution must provide a phone number and time for such an interview.

The prosecution was also ordered to make available to the defence any notes taken by interrogators and other government agents during all interrogations of Mr. Khadr dating back to 27 July, 2002 — the day of the Afghanistan firefight during which Mr. Khadr was captured.

Despite the string of victories, Mr. Khadr's defence team is complaining that the prosecution is stalling the release of certain documents to the public. Friday's judge's decisions came as a result of several motions filed by the defence. However, those motions, which contain more details about certain allegations and evidence, have not yet been made public. Mr. Khadr's lawyers argue that's because the prosecution is hoping to release the documents after the current bout of media attention to the case dies down.

Lawyers were set to leave Guantanamo Bay on Friday afternoon, and are not officially due back until May. However it is expected that the two sides will be back in court at Guantanamo Bay arguing over more discovery motions next month.

Mr. Khadr faces several charges before a U.S. military commission here. The most serious of the charges is murder. If convicted, the 21-year-old could face life in prison.

Following the revelation that a U.S. military report on the firefight was altered, Mr. Khadr's case was raised in Question Period in Ottawa Friday morning. In response, the Conservative government repeated the same position they have previously stated on the case: the charged against Mr. Khadr are very serious and the government has received assurances he is being treated humanely.