(Originally posted on .)
Yesterday was day two of pretrial hearings in the case of Toronto-born Omar Khadr, who has been in U.S. detention for a third of his life, since his capture at age 15 in Afghanistan. The hearing was sidetracked by Khadr鈥檚 refusal to come to court because of a medical condition and marred by the military judge鈥檚 lack of concern鈥攅ven though, according to his lawyers, he's in significant pain.
The chair usually occupied by Omar Khadr was conspicuously empty when yesterday鈥檚 hearing began. Khadr鈥檚 lawyer Barry Coburn announced to the court that Khadr was experiencing 鈥渆xtreme physical pain鈥� in his left eye鈥攚hich was blinded by shrapnel in the firefight when he was captured. Khadr was given eye drops and originally said he intended to attend the hearing, but when he was to be transferred from the prison to the courthouse in the back of a windowless van, guards required him to wear 鈥渆yes and ears,鈥� tight-fitting blackout goggles and sound-blocking earmuffs. ButThe blackout goggles pressed painfully against his eyes, so he refused to ride in the van with them. His lawyers said he鈥檇 never been required to wear the goggles and earphones in the van before Wednesday.
Khadr has attended every military commissions hearing in his case, until today. He鈥檚 usually attentive during hearings and hasn鈥檛 claimed medical reasons for not participating before, according to his lawyers.
The judge, U.S. Army Col. Patrick Parrish, appeared utterly unsympathetic and announced he wouldn鈥檛 second-guess the military鈥檚 changed security procedures. Judge Parrish announced the hearing would continue without Khadr鈥攗ntil he realized that Khadr wasn鈥檛 properly read his rights when he was arraigned in 2007. No judge had ever advised Khadr of his right to attend hearings and the consequences of not attending when hearings proceed without him, as required by both the old rules manual and the new rules released Tuesday night. We recessed until afternoon, to give Khadr鈥檚 lawyers an opportunity to persuade him to come to court.
Wearing the white uniform designated for compliant prisoners, Khadr shielded his eyes as he entered the courtroom for the afternoon session. Khadr hunched over with his head in his hands throughout the hearing, and appeared to be crying into balled-up tissues at times. Dr. Stephen Xenakis, a retired Brigadier General and expert witness for the defense who examined Khadr during the morning recess, later explained to reporters that Khadr has a serious infection aggravated by shrapnel in his eyes. Dr. Xenakis said Khadr鈥檚 condition is urgent and requires immediate medical attention.
Judge Parrish showed no concern for Khadr鈥檚 condition and flatly rejected defense arguments that his eye pain, exacerbated by the blackout goggles, prevented him from participating in the hearing. Coburn argued that Khadr鈥檚 medical condition is 鈥渄ebilitating and extremely painful鈥� and affected his ability to focus on and participate in his own defense, but the judge was unmoved. Later, Coburn remarked to reporters, 鈥測ou can鈥檛 have a fair trial unless the defendant can participate actively.鈥�
Coburn has a good point. An accused鈥檚 ability to participate is important in any criminal case, but was particularly crucial yesterday as the court heard testimony from FBI Special Agent Robert Fuller about interrogations he conducted of Khadr at Bagram. Defense lawyers have asked the court to exclude self-incriminating statements they say Khadr made as a result of torture and other abuse.
It seems critical that Khadr be able to concentrate on Fuller鈥檚 testimony, so that he can help his lawyers challenge Fuller鈥檚 assertion that Khadr was 鈥渉appy鈥� and 鈥渆ager to talk to us鈥� during interrogations at Bagram.
Omar Khadr鈥檚 entire military commissions experience thus far has been a circus spanning several years, 11 lawyers, more than three arraignments and multiple sets of rules since he was first charged in 2004, and it still hasn鈥檛 gotten off the ground. Khadr鈥檚 military commissions case has been plagued by procedural and legal problems, and today鈥檚 events鈥擪hadr鈥檚 inability to follow important testimony and the discovery that he wasn鈥檛 read his rights at his arraignment鈥攁re only the latest examples. As we鈥檝e seen in Khadr鈥檚 case, the military commissions are a recipe for endless legal challenges and delay. Enough is enough.
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