With U.S. "Terror Trials " in Disarray, the Case Against Omar Khadr is Falling Apart

Hardly a day goes by without some extraordinary news from the Military Commissions, the system of "terror trials" conceived in the Office of the Vice President in November 2001, and their days now seem to be as numbered as those of the Bush administration itself.

Following the outspoken resignation of former prosecutor Lt. Col. Darrel Vandeveld and the Pentagon's desperate decision to drop charges against five prisoners to prevent Vandeveld from testifying for the defense, the latest news to rock the Commissions is that the trial of Omar Khadr -- a supposedly flagship case, along with that of the Yemeni Salim Hamdan, who received a surprisingly light sentence after a trial this summer -- has been delayed until after the administration leaves office.

This is a bitter blow for the government, which has been pushing to prosecute Khadr for war crimes since 2005. Its first attempt failed, when the Supreme Court ruled that the whole enterprise was illegal, but after the Commissions were bandaged up by Congress and resumed their ghoulish existence in 2007, Khadr was once more put forward for trial.

This was in spite of the fact that his tenacious lawyers -- both military and civilian -- have questioned the very basis of the "war crimes" charges (which essentially transform combatants in war into "terrorists"), and have unearthed evidence (despite systemic obstruction) that Khadr may not have been responsible for the main crime for which he is charged (throwing a grenade that killed a U.S. soldier). Focusing on the fact that Khadr was just 15 years old when he was seized in July 2002, they have also persistently pointed out the cruel folly, injustice and illegality of prosecuting a juvenile for war crimes, when the UN Convention on the rights of children in wartime, to which the U.S. is a signatory, requires juveniles -- those under the age of 18 when the alleged crime took place -- to be rehabilitated rather than punished.

Last week, in pre-trial hearings, they reprised some of these arguments, and also sought access to seven interrogators, from various intelligence agencies, who, they insist, extracted coerced confessions from Khadr, who was severely wounded, while he was detained in the U.S. prison at Bagram airbase in Afghanistan, before his transfer to Guantánamo. According to the lawyers, the information extracted from Khadr under duress was then used as the basis for interrogations at Guantánamo using more "sterile" and "benign" techniques, in much the same way that the administration has attempted to cover up its torture of Khalid Sheikh Mohammed and other "high-value detainees" in secret CIA custody by using "clean teams" of FBI agents to extract new confessions in Guantánamo.

As was revealed in Salim Hamdan's trial, the prohibition on the use of coerced evidence (which was only introduced after the Commissions' first incarnation was struck down by the Supreme Court, and is still allowable at the judge's discretion) may technically satisfy the absolute prohibition on the use of evidence obtained through torture, but it has the knock-on effect of effectively erasing the government's crimes from the record, while also allowing the authorities to obtain "clean" confessions from abused prisoners in a way that would shame all but the most vile totalitarian regimes.

Last week, Khadr's judge, Army Col. Patrick Parrish, deferred a decision on the defense's motion, but as Judy Rabinovitz, an observer for the American Civil Liberties Union, noted, he "did not appear impressed" by the prosecution's argument that "there 'needs to be a showing' by the defense that coercive interrogation practices were used," which otherwise were only "speculative." As Rabinovitz noted, touching on the burning issues of the suppression of evidence vital to the defense, which was highlighted in Mohamed Jawad's case by Lt. Col. Vandeveld, "This line of argument would not likely succeed in a regular military or civilian criminal court, in which the standard for discovery generally places the burden on the government to give the defense information that may assist the defense." She added that Col. Parrish was also not impressed by the government's assertion that even providing information about the seven interrogators, three weeks before the trial's scheduled start date of November 10, would be an "undue burden" on the government.