The trial of Gitmo detainee Omar Khadr, the first of the administration's revised military commissions, was always going to be a lose-lose situation if it ever actually took place. Khadr is accused of throwing the grenade that killed U.S. Army Sergeant First Class Christopher Speer during a firefight in Afghanistan in 2002, when he was 15 years old. Khadr's age, and the fact that his father was a known al-Qaeda financier, already raises questions about coercion and culpability, and human-rights groups have criticized the U.S. for putting on trial someone who was a minor at the time of the alleged offense, particularly one who was subject to abusive treatment during his time in U.S. custody. Killing an enemy soldier in combat has not been previously prosecuted as a war crime. The administration's national-security critics have already hinted at their intention to use a potential acquittal as a sign of the administration's weakness, and Khadr refused a plea deal, removing the possibility of ending this quietly.
"In most of the world [Khadr] would be treated as a victim of human-rights abuses, not a criminal perpetrator," said Ben Wizner, a staff attorney with the ACLU.
Yesterday, Carol Rosenberg reports, the judge in Khadr's military-commissions trial, Army Col.Patrick Parrish, ruled in favor of the prosecution on the question of whether Khadr's confessions were tainted by prior abusive interrogations, including an implied threat of rape by an interrogator. The judge also admitted as evidence what is apparently a general documentary on al-Qaeda that has nothing to do with the actual crime Khadr is alleged to have committed, created by an expert who wrote their undergraduate -- yes, that's undergraduate -- thesis on al Qaeda. From Daphne Eviatar at Human Rights First, who is at Camp Justice for the proceedings:
The 31-year-old [Evan] Kohlmann is an NBC news analyst who started his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He admitted in court today that he does not speak Arabic or have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He has an undergraduate degree from Georgetown University where he wrote his senior thesis on al Qaeda and Arab-Afghans. All of his research and writing on that and related subjects was based on information he found on the Internet.
Eviatar explains that Kohlmann has testified in two military commissions cases and 16 federal court trials before, but I'm not sure if that's as much a comment on his expertise as it is on the way we conduct terrorism trials.
It would be a mistake to think that allowing this evidence is a complete win for the administration. Military-commissions trials are appealed through the federal courts, and it's entirely possible a federal judge will be less tolerant of evidence extracted through threats and abuse than Col. Parrish. Instead of a clean conviction, the administration could be dealing with the headache of a lengthy appeals process, compounding the already considerable international embarrassment sustained for trying someone for war crimes allegedly committed while they were a teenager. Rather than being an example of how the Obama administration's reformed military commissions can provide the same quality of justice as federal courts, the administration's first trial is on its way to proving the exact opposite point.
"Not only will this be seen as illegitimate by the rest of the world, but it may be seen that way by a federal court on review,” said Wizner. “It's a perfect storm of what's wrong with the military commissions."
