Guantanamo Bay, Cuba A U.S. military tribunal refused Thursday to clamp down on prosecutors after complaints they've tried Canadian teenager Omar Khadr in public and ruined his chances for a fair trial.
Mr. Khadr, 19, sat quietly and mostly watched a video monitor during a debate about inflammatory remarks from both camps this week as his murder case began.
He exchanged his Roots attire for a more conservative checked dress shirt for his second day at the tribunal's pre-trial hearings after the presiding officer complained he was dressed too casually Wednesday.
Mr. Khadr's civilian lawyer, Muneer Ahmad, demanded a retraction and gag order on Col. Moe Davis, who heads prosecutors at the U.S. military commissions created for suspected terrorists held at the prison camp on the U.S. naval base in Cuba.
Col. Davis called Mr. Khadr a murderer and a terrorist who smiled while he learned to make bombs to kill Americans at an al-Qaeda training camp.
But presiding officer Col. Robert Chester noted Mr. Ahmad made some “negative characterizations” of his own at the same news conference, where he called the tribunal process a sham and repeated allegations Mr. Khadr has been tortured.
And while Col. Davis's comments were “potentially harmful” and “extended beyond that normally heard from a military prosecutor,” Col. Chester said they didn't break ethics rules or serve to deny Mr. Khadr a full and fair trial.
At a late news conference, Col. Davis said he had no choice but to break his silence on the case after constant pummelling from critics.
“For a number of months, we've sat on the sidelines. We've just kind of taken it.”
“There comes a time when you don't take it any more.”
Mr. Ahmad, meanwhile, said he still has “serious reservations” about the impact on Mr. Khadr's trial, adding he's looking forward to a “more robust” legal team.
Col. Chester, whose role is similar to a judge, said Mr. Khadr should soon have the U.S. military lawyer he requested, California litigator Lt.-Col. Colby Vokey.
Lt.-Col. Vokey will lead the team to represent Mr. Khadr during his trial on a murder charge and other counts stemming from a July 2002 firefight in Afghanistan that killed a U.S. medic.
“(He's) a very experienced trial lawyer whom I hold in very high regard,” said Col. Chester.
Mr. Khadr, who will next appear at the tribunal March 27, has also requested a Canadian lawyer — a person he'll choose in consultation with Lt.-Col. Vokey.
Col. Chester said he didn't know whether a Canadian would be allowed formal standing before the tribunal. To be accepted, they have to also hold U.S. citizenship and meet other criteria.
Foreigners who can't fully participate may still act as assistants or consultants.
“That may not be the ideal alternative,” said Col. Chester, who noted Mr. Ahmad has expressed concerns in news interviews about Mr. Khadr's chronic health problems.
“He doesn't appear to be suffering in any way. If it does become a problem, let me know.”
The tribunal chief also said Mr. Khadr will be addressed by his family name or as the accused, not by his first name.
“I think that represents too casual an approach to this proceeding.”
But most of Thursday's hearing was devoted to arguments about whether both sides went too far in public remarks.
Mr. Ahmad complained the head prosecutor, who attended the hearing, called Mr. Khadr a terrorist six times and stated three or four times he's guilty.
“This is going to have the effect of increasing the amount of public condemnation that Mr. Khadr will face,” he argued.
“The issue of guilt or innocence should be decided in the courtroom, not in the form of public discussion,” said Mr. Ahmad, who argued the defence should have more leeway because Mr. Khadr has been held as a prisoner without a public voice.
A military prosecutor, who can't be identified because of security concerns, said officials had no choice because Mr. Khadr's representatives and supporters have waged a lengthy “public relations battle and assault against us.”
“Your honour, you're not presiding over a kangaroo court,” said the prosecutor, who noted Mr. Khadr's lawyers didn't ask for the kind of limit on pre-trial publicity issued in some other high-profile cases like the Oklahoma City bomber.
While Col. Chester agreed prosecutors have a “heightened responsibility” in seeking justice, he said comments from the two opposing lawyers tended to cancel out.
And he said the prosecution's statements were “intended and necessary” to protect the military and the U.S. government from adverse publicity.
Mr. Khadr's first hearing was only supposed to last a day but stretched late into its second.
“The stakes are too high” to rush, said Col. Chester.
Mr. Khadr has only spoken quietly on a handful of occasions to say “Yes, sir” to questions and to request a Canadian lawyer.
The pretrial hearing went ahead, despite motions filed by defence lawyers and the U.S. Supreme Court's plan to examine in March whether the special system for foreign terror suspects is constitutional.
Critics said the tribunal system has ever-changing rules that favour prosecutors and allow confessions extracted by torture. They also complain there's no recourse to a proper appeal.
Mr. Khadr's case is being closely monitored by human rights groups upset about torture allegations and Mr. Khadr's juvenile status at the time of the alleged offences.
“The world is watching to see if we can deliver justice to detainees at Guantanamo,” said Ben Wizner of the American Civil Liberties Union.
“What's happening here is terribly important. It's as important as any battle in the world.”
Mr. Khadr was charged in November as an “unprivileged belligerent,” meaning he was not considered legally able to wage war.
Only nine of some 500 detainees at the Guantanamo prison camp have been formally charged after years in detention.
The Khadr family has provoked intense debate in Canada. Each of the five Khadr siblings, all of whom are Canadian citizens, has at one time or another been separately accused or investigated for alleged links to terrorism.
Their father, Egyptian-born Canadian Ahmed Said Khadr, was an accused al-Qaeda financier killed in a battle with Pakistani forces in 2003.