GUANTANAMO BAY, CUBA — Another fighter was still alive inside the Afghan compound where Omar Khadr was captured at the time a grenade killed a U.S. soldier, casting doubt on allegations that only the teenage militant could have been responsible for the soldier's death. It has long been assumed by many that Mr. Khadr was the only combatant alive during the firefight, and so must have been the one who threw the grenade.The revelations, mistakenly released in never-before seen documents, came during a military tribunal hearing for Mr. Khadr Monday at the U.S. naval base at Guantanamo Bay, Cuba. Documents that were supposed to be censored in their entirety were accidentally handed out to reporters in the courtroom, taking both defence and prosecution lawyers completely by surprise.
The documents contain a transcript of an interview with the only U.S. security agent believed to have witnessed first-hand the fierce firefight inside the compound where then-15-year-old Mr. Khadr was staying in 2002 – a firefight that left the young Canadian with shrapnel wounds and two bullets in his back.
While the interviewed agent — whose identity and agency affiliation are still secret — says he believes Mr. Khadr threw the grenade, his account of events clearly shows that he deduced that conclusion rather than saw it first-hand.
The document was given to Mr. Khadr's defence team by prosecutors as part of discovery.
The transcript with the agent — he is only identified as “OC-1” — describes in detail the moments leading up to, during and after the battle where Mr. Khadr was shot and captured. Mr. Khadr faces five charges before the military commission. The most serious of those — murder — is related to a grenade attack during that battle that killed a U.S. soldier.
OC-1 arrived at the Afghan compound where Mr. Khadr was staying after U.S. forces had called in multiple air strikes on the facility. After bombs had severely damaged the compound and those inside, OC-1 and a number of soldiers entered through a breach in one of the mud walls. One of the soldiers was Sergeant First Class Christopher Speer, the soldier Mr. Khadr is charged with murdering.
OC-1 says that as soon as the soldiers entered the compound, they came under fire, possibly from a rifle. The witness described the fire as “directed,” not random. While the soldiers were under fire, OC-1 says he saw a grenade lobbed toward him over a three-metre wall leading into an alley. The witness began running past the opening of the alley in order to avoid the grenade, firing 12 rounds of his M-4 rifle into the alleyway as he ran. However the alley was filled with dust from the gunfire and he could not see who was at the other end.
When the witness stopped and ducked at one corner of the alley, he heard a man moaning near the back of the compound. When the dust cleared, he saw the man lying near him — he was still moving, and an AK-47 rifle lay beside him. OC-1 shot the man in the head, killing him.
When the dust rose from that shot, the witness saw another person sitting up against the brush, facing away from him. It was Mr. Khadr.
OC-1 shot Mr. Khadr twice in the back.
It was after the shooting, when OC-1 was checking to see whether Mr. Khadr was still alive, that he heard other U.S. personnel yelling for a medic for Sgt. Speer, who had been fatally wounded by the grenade lobbed earlier.
The same medic who treated Sgt. Speer then treated Mr. Khadr.
“OC-1 observed that KHADR was able to move his arms and was repeating “kill me” in English,” the document states.
OC-1 tells his interviewer that, based on “his extensive combat experience,” he believes that the only people alive at the time of the assault were Mr. Khadr and the other man he shot in the head. The witness also believes that the grenade was thrown by someone other than the person who opened rifle fire on the U.S. troops, because the two events happened simultaneously.
“Though the dust and angle of the walls prevented him from seeing who threw the grenade, OC-1 believes that KHADR threw the grenade,” the document states.
The accidental release of the document prompted a bizarre standoff between military officials and reporters outside the courtroom MONDAY. After lawyers became aware that the document had erroneously been given to media, military commission officials asked reporters to give the documents back, indicating reporters who failed to do so may not be allowed to sit through future court proceedings. After 90-minutes, reporters were allowed to keep the documents, but were asked not to report any specific names, locations, dates and other information deemed sensitive.
Mr. Khadr's lead defence lawyer, U.S. Navy Lieutenant-Commander William Kuebler, said that had the document not accidentally been made public, reporters may never have seen it. “There's no openness about this process, that's the point,” he said. “This is a process that's designed to take place outside of public view, outside of public scrutiny.”
Navy Commander Jeffrey Gordon, a Pentagon spokesman, vehemently disagreed with that characterization.
“Clearly it is an open process,” he said. “We've consistently brought members of the press and [non-governmental organizations] to witness trials and we release information in a timely manner.”
Defence and prosecution lawyers also presented oral arguments on a number of defence motions MONDAY, including a motion asking that charges be dismissed because the Military Commission Act, under which Mr. Khadr is being tried, was never meant for juveniles. Mr. Khadr's defence argued that no civilized legal system in the world makes no distinction between adults and children, and to assume that the act applies to all ages would imply a five-year-old could be charged.
Prosecution lawyers argued that Congress was well aware of Mr. Khadr's case when it passed the law in 2006. Prosecution lawyers also pointed to examples such as imprisonment of Hitler Youth after the Second World War as precedent for military tribunals exercising jurisdiction over suspects under the age of 18.
Military Judge Colonel Peter Brownback did not say when he expects to render a decision on any of the motions, and it appears that this week's round of hearings in the Khadr case is over after just one day.
Outside observers got a look at Mr. Khadr for the first time in several months yesterday. The now-21-year-old entered the Naval base courthouse escorted by two soldiers, each holding one of his hands. He wore a white prisoner's uniform, a colour reserved for those living in the camp's least severe prisons. Standing more six feet tall, the prisoner was well-groomed with short hair and a beard that was full but not unruly.
For much of the morning session, Mr. Khadr sat talking to his Canadian lawyer, Dennis Edney. The prisoner's facial expression rarely changed, and he seemed to have only a passing interest in the convoluted legal arguments that took up most of the day.
The trial was expected to formally begin on May 5, but Lt.-Cmdr. Kuebler is not sure that is still a realistic start date.