GUANTANAMO BAY, Cuba -- The pretrial hearing for the youngest accused war criminal in modern history began Wednesday with a judge ruling that the military tribunal could consider as evidence Omar Khadr's statements that he was tortured during interrogations.
Col. Patrick Parrish, presiding at the hearing
, rejected the motion by prosecuting attorneys Jeffery Groharing and Air Force Capt. Chris Eason to suppress an affidavit that included accusations of torture by Khadr, a 23-year-old Canadian citizen captured in Afghanistan and charged with murder, conspiracy and support of terrorism. Groharing said that if the claims were allowed as evidence, Khadr should have to take the stand and be subjected to cross-examination.
Meanwhile defense attorneys Barry Coburn and Kobie Flowers aggressively argued that a video of Khadr building and planting improvised explosive devices, known as IEDs, should be deemed inadmissible because its discovery was the result of coercive interrogations.
That motion still was being considered when the day came to a close.
At times Khadr's protection under the U.S. Constitution was disputed. The defense referred to the Fourth and Fifth Amendment rights of their client, while the prosecution claimed the Constitution has no applicability in the military commissions. The judge quickly redirected the hearing, saying "we'll leave to another day what constitutional rights he has."
Khadr is accused of throwing a grenade that killed Sgt. Christopher Speer, a Delta Force commando, during a July 2002 firefight in Afghanistan. After the fight Khadr -- 15 years old at the time -- was found unconscious, partly blinded by shrapnel and shot twice in the back by American forces. He was airlifted to Bagram Air Base for medical attention.
Khadr claims that, while detained at Bagram and then Guantánamo Bay, he was subjected to a variety of abuses, such as stress positions, suffocation, threats of rape and having his body used to wipe up his urine. During those interrogation sessions, Khadr now says, he told his interrogators what he thought they wanted to hear.
Groharing called the affidavit, which includes the above accusations as well as others, "undeniably hearsay," arguing that "testimony this central should come from the mouth of the accused."
In response, Coburn said that Khadr swearing to the truth and accuracy of the affidavit would be sufficient. The judge promptly denied the prosecution's request and moved on to the more complicated matter of the incriminating video.
Approximately one month after the firefight during which Khadr was captured, U.S. forces returned to the site, where they discovered the video of al-Qaeda operatives and Khadr, dressed as civilians, building and planting IEDs.
The defense claims the video would not have been found without coerced statements from Khadr, making it "fruit of the poisonous tree" and therefore inadmissible. The prosecution disputes both the idea that Khadr's statements to interrogators led to the discovery of the video and that he was ever abused. To bolster its claim, the prosecution called its first witness: FBI interrogator Robert Fuller.
Fuller, who has testified against Khadr in the past, said that when he interrogated Khadr, he employed only legal and noncoercive means. Fuller's testimony, which will continue Thursday, was cut short when the judge ended the session so Khadr could fulfill his religious obligation to pray.
After the hearing Coburn would not speculate on Fuller's testimony, but did say "we are going to have a very substantial cross-examination."Although Fuller's testimony presents a tame portrait of the treatment Khadr received, Coburn said, "The image is going to clarify over time."
Coburn also complained, both during and after the hearing, about what he called the defense attorneys' lack of access to Khadr's interrogators. Of the more than 30 people who Coburn says interrogated Khadr, the defense has been allowed to speak with three.
The prosecution challenged the necessity of speaking with every person who interrogated Khadr, questioning why people who spoke with him months or years after the alleged abuse are relevant to the case.
Coburn plans on calling a witness known to the court as "interrogator one," who Coburn said was directly involved in coercive interrogation sessions.
The hearings were set to begin Wednesday morning but were delayed until the afternoon to give attorneys for both sides time to review the military commissions' manual, which was released late Tuesday evening.
Previously Coburn had been extremely critical that the hearings were set to begin without a manual, and said that, despite the publication of a manual, he still finds the military commission system to be "extremely disturbing."
Wednesday morning the Toronto Star reported that the prosecution had offered Khadr's attorneys a plea bargain of five years in prison prior to the start of the pretrial hearing. Coburn disputed the report and criticized the source of the information, saying any details of ongoing negotiations should remain private.