At Guantanamo, even 'easy' cases have lingered
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After an hours-long firefight in an Afghan village called Ab Khail, an enemy fighter hurled a grenade at Sgt. First Class Christopher Speer, causing fatal injuries. For more than a year, Maj. Jeffrey Groharing, a Marine Corps prosecutor, has been trying to bring the alleged killer to justice.
Winning a conviction should have been easy. The suspect, Omar Ahmed Khadr, a Toronto-born teenager whose relatives have ties to al Qaeda, was captured after the July 2002 skirmish and taken to Guantanamo Bay. Under an order President Bush issued in November 2001, Mr. Khadr could claim few of the rights afforded defendants in civilian courts or courts-martial.
But for Maj. Groharing, the case of U.S. v. Omar Khadr, slated for an American military commission at Guantanamo, has been a headache. Intelligence agencies refused to share their files with the prosecutor, fearing their methods or sources might be disclosed. Soldiers who witnessed the incident are scattered across the globe. Defense attorneys hurled a series of legal challenges that paralyzed proceedings. And the crime scene -- a remote village still contested by Taliban fighters -- was all but obliterated by American bombs, making it nearly impossible to conduct an independent investigation.
Such challenges help explain why the Bush administration failed to complete a single Guantanamo trial in the five years before the Supreme Court struck the system down in June. The decision threw into limbo the prosecution of Mr. Khadr and nine other Guantanamo prisoners who were charged prior to the high court ruling. Congress has since passed the Military Commissions Act, which grants defendants some of the rights President Bush previously had sought to deny. But even when the deck was stacked in the government's favor, prosecutors struggled to convict fighters captured overseas amid a continuing conflict.
"At the end of the day, the question is: Can you actually try a case under these conditions?" says Prof. Robert Chesney, a specialist in national-security law at Wake Forest University.
Maj. Groharing acknowledges that the Guantanamo cases have had "some fits and starts," and presented challenges that few other prosecutors face. He says the effort is nonetheless worthwhile.
"What's the alternative? To not hold him accountable? We are certainly not going to give him a pass for killing a U.S. service member and plotting to kill many more," the prosecutor says. "The difference between us and al Qaeda is that when we had him on the battlefield, we didn't summarily execute him," he says.
The U.S. has employed forms of military commissions in past conflicts, most recently World War II, when hundreds of Axis officials and soldiers were tried for offenses such as crimes against humanity and mistreatment of American prisoners of war. But those trials took place after fighting had ended and before the introduction of stricter courtroom and evidentiary standards, as laid out by the Geneva Conventions, the U.S. Uniform Code of Military Justice and other laws.
Air Force Col. Moe Davis, the chief Guantanamo prosecutor, estimates that about 70 of some 435 Guantanamo prisoners will eventually face trial for specific war crimes; the rest will be held until the U.S. determines they no longer pose a threat. Those expected to face military trial include Khalid Sheikh Mohammed and Ramzi Binalshibh, alleged plotters of the Sept. 11, 2001, terror attacks. President Bush transferred them in September from a secret Central Intelligence Agency prison to Guantanamo.
The majority of the defendants are relative unknowns whose alleged crimes fall short of the catastrophic hijacking attacks. Mr. Khadr was selected as an early prosecution target precisely because his case seemed so simple. Of the prisoners previously charged, Mr. Khadr is the only one accused of killing anybody. Sgt. Speer's combat death, alone of the 194 American military personnel killed by enemy fire in and around Afghanistan, is the only one that has prompted a murder charge.
In contrast to some other cases, "we have a crime scene, we have facts, we have witnesses," says Maj. Groharing.
Defense attorneys say the allegations against Mr. Khadr amount to nothing other than taking part in a battle he didn't start.
The Marine attorney assigned to represent Mr. Khadr, Lt. Col. Colby Vokey, initially was barred by his commander from communicating with reporters after filing an affidavit accusing Guantanamo prison guards of abusing detainees. Muneer Ahmad, an American University law professor helping represent Mr. Khadr, says: "It's hard to think this is a case prosecuted solely on its merits without regard to the political benefits to the administration."
Mr. Khadr, he adds, "has been punished for the perceived sins of his family."
Mr. Khadr's father, Ahmed Said Khadr, an Egyptian-born Canadian citizen, was closely identified with extremist Islamic causes. In the 1980s, Ahmed Khadr traveled to Pakistan and Afghanistan, where he became a confidant of Osama bin Laden. In 1993, Mr. Khadr moved his family to Afghanistan, where U.S. authorities say he funneled money to al Qaeda under cover of charity work.
Mr. Khadr's boys trained at al Qaeda-run camps and played with Mr. bin Laden's children, Khadr family members said in interviews with the Canadian Broadcasting Corp. According to Pentagon charges, "while traveling with his father, Omar Khadr saw or personally met senior al Qaeda leaders," including Mr. bin Laden, Ayman al-Zawahiri and Muhammed Atef.
After the U.S. invaded Afghanistan to topple the Taliban regime in October 2001, the Khadrs scattered. Ahmed Khadr was killed by Pakistani forces in an October 2003 battle that also left his youngest son paralyzed.
Omar, meanwhile, "received approximately one month of one-on-one, private al Qaeda basic training" arranged by his father, Pentagon charges say, including "the use of rocket-propelled grenades, rifles, pistols, grenades and explosives."
In late July 2002, U.S. forces picked up satellite telephone transmissions from a village about seven miles outside Khost, Afghanistan, says retired Army Sgt. First Class Layne Morris, part of the unit sent to reconnoiter. Mr. Morris's account of the day is corroborated by contemporary news reports, charging documents and other court papers, including a successful civil suit filed by Mr. Morris and the widow of Sgt. Speer in U.S. District Court in Utah.
The Khadr family's Canadian lawyer, Dennis Edney, contends that suit was illegitimate and that it may color Mr. Morris's credibility.
According to Mr. Morris and press accounts, a detachment of about 40 U.S. soldiers, along with a few allied Afghan militiamen, headed to Ab Khail. Mr. Morris recalls leading a five-man squad to a compound outside the main village, with a mud wall surrounding a homestead with buildings and animal pens.
The sergeant peered through the compound's green metal gate, spotting what he says were well-dressed Arabs with AK-47 machine guns sitting around a fire. "They looked at me and I looked at them," Mr. Morris says.
Mr. Morris backed up, ordered his soldiers into position and called for reinforcements. About 100 villagers were hanging around watching events unfold. About 45 minutes later, the rest of the detachment arrived, including Sgt. Speer. The Americans took cover and sent the Afghans into the compound to inquire further, Mr. Morris says.
The men inside immediately shot the Afghans dead and began firing guns and throwing grenades at the U.S. soldiers, Mr. Morris says. The ensuing battle was ferocious, costing Mr. Morris his right eye, wounding four other Americans and ending only after U.S. F-18s dropped two 500-pound bombs on the compound, destroying it.
U.S. soldiers, assuming the enemy fighters were all dead, advanced on the compound, Mr. Morris says. That's when Mr. Khadr, then 15, allegedly rose and threw a grenade that wounded Sgt. Speer, a 28-year-old medic.
The soldiers shot Mr. Khadr. When they got to his prone body, he begged them, in English, to finish him off, Mr. Morris says. U.S. soldiers said at the time in press interviews they restrained their desire to do so and instead ordered medical treatment. Mr. Khadr survived, but lost most sight in his left eye. His three companions, all Arabs, were dead.
Sgt. Speer, shrapnel lodged in his head, was taken to an Army hospital in Germany, where he died on Aug. 7. Mr. Khadr was sent to Guantanamo Bay.
Maj. Groharing, 36, had long nursed dreams of becoming a Marine. He didn't join the Corps until 1996 after graduating from the University of Nebraska law school and a brief but unexciting exposure to private practice. For most of his career, he worked as a defense attorney representing Marines accused of crimes. He sometimes found the role uncomfortable, he says, partly because it involved standing up to commanders who want the offenders punished.
In 2002, he was transferred from San Diego to Washington, D.C., for a job with the Marine Corps commandant's legal counsel. Eager for experience at the prosecution table, he next sought appointment to the Office of Military Commissions.
"I wanted to do something that needed to be done," says Maj. Groharing. After he arrived in June 2005, Guantanamo reporters nicknamed him "Kevin Bacon," after his resemblance to the actor who played a Marine prosecutor in the picture, "A Few Good Men."
Prosecutors had already requested that President Bush authorize charges against Mr. Khadr based on the voluminous array of potential evidence. Over three years of detention, Mr. Khadr had told interrogators about his father's activities and connections, shedding light on al Qaeda's organizational structure, military officials say.
Soldiers who took part in the battle could be called to testify, along with relatives of Sgt. Speer. Both would likely hold weight with the seven U.S. officers appointed as judges. To top it off, soldiers had recovered a video tape from Ab Khail, which the Pentagon says shows a smiling Mr. Khadr building and planting bombs.
In November 2005, the administration formally charged Mr. Khadr with conspiracy, murder by an unprivileged belligerent, attempted murder by an unprivileged belligerent and aiding the enemy. The charges stem from Mr. Khadr's classification as an unlawful combatant, or a person who has no right to commit acts of war; if he was adjudged to be part of a regular army, his actions likely would be considered legal under the rules of war.
Maj. Groharing went to Guantanamo to personally deliver the news. He recalls thinking that Mr. Khadr looked "somewhat hardened, far from a typical teenager" and "a bit arrogant, cocky."
Mr. Khadr didn't appear know who the Marine was. "He advised me he didn't want me to be his lawyer. I said, 'I'm not your lawyer,'" and handed him the charges.
Mr. Khadr already had an impressive legal team. His family in Canada had hired counsel. In addition, Prof. Ahmad and a faculty colleague, Richard Wilson, represented him in civil litigation challenging his detention at Guantanamo. To these were added an Army lawyer and Col. Vokey, an experienced military defense counsel.
Mr. Khadr's lawyers say none of the charges are crimes, citing a variety of legal arguments. They note the Supreme Court plurality has found that conspiracy is not a war crime, based on post-World War II precedents that considered the charge too vague.
Prof. Ahmed says murder by an unprivileged belligerent "has never been recognized as a violation of the laws of war," and was instead "invented" by the Bush administration. The other charge, aiding the enemy, makes no sense, the law professor adds, because Mr. Khadr owes no allegiance to the U.S. Lastly, because Mr. Khadr was 15 at the time of the alleged crime, he should be treated as a juvenile, says Prof. Ahmad, following historic precedent.
His attorneys allege Mr. Khadr was subjected to years of abuse, including being used as a "human mop" to clean up urine, being shackled until he soiled himself, and being threatened with deportation to Egypt, where he would be raped.
Col. Davis, the chief Guantanamo prosecutor, says the allegations are under review and have not to date been substantiated. Maj. Groharing says if he ever gets his case into a courtroom, he can deal with such objections by citing evidence collected prior to the interrogation.
That wasn't the only problem. The prosecution needed help from other Pentagon offices but instead found uneven support for the commission plan. The tribunals had originated with Bush political appointees rather than professional military lawyers, many of whom thought existing court-martial procedures were more than adequate. Defense Secretary Donald Rumsfeld had little time for the commissions, officials say, since administration lawyers concluded prisoners could be held indefinitely, regardless of whether they were tried or even acquitted.
In the Pentagon bureaucracy, ambivalence translated into inertia, if not outright resistance. Intelligence agents refused to make key material available. Maj. Groharing tacked over his desk an intelligence report he received whose entire contents had been blacked out.
"There's an inherent conflict between what they're doing and what we're doing," Maj. Groharing says he realized. And the intelligence mission "trumps what we're doing."
Maj. Groharing says he was prepared to try his case based on the paper files and interviews with surviving U.S. servicemen. But Col. Vokey, the defense attorney, wanted to interview witnesses and gather evidence himself. Because that meant a trip to contested areas of Afghanistan and regions of Pakistan unfriendly to Americans, Maj. Groharing had to make arrangements for his adversary's travel, something the prosecutor considered "awkward."
Col. Vokey agrees, saying he didn't want to conduct his investigation with the prosecutor "looking over my shoulder." (Shortly before this article's publication, Col. Vokey said the ban on his communication with journalists had been lifted.)
By chance, lawyers in other military commission cases had business of their own in the region and the office planned a group trip. Maj. Groharing decided to go, too, so he could attend Col. Vokey's depositions and hunt down additional witnesses of his own.
The group flew to Islamabad, Pakistan, in May. Col. Vokey immediately came down with food poisoning "and that put him down for a week," the prosecutor says. "From that day on, he never had another kebab or naan."
After a stop in Peshawar, a border city where Ahmed Khadr once volunteered for a charity called Human Concern International, the group flew to Bagram air base in Afghanistan. From there, they took a helicopter to Khost, where an Army unit was assembled to escort the lawyers, now wearing Kevlar battle gear, to the crime scene.
At first, they couldn't find the village. When the convoy of six Humvees and some 25 soldiers finally rumbled into Ab Khail, villagers surrounded the U.S. group. The prosecutor wanted to find witnesses who would say that foreign fighters had been in the compound.
Several villagers "clearly remembered" the incident, Maj. Groharing says, before the village elder showed up and took charge of the encounter. "Anyone we tried to talk to, he would always jump in and answer for everyone else," the prosecutor says. The elder denied the very essence of the prosecution case: that al Qaeda fighters had fought U.S. soldiers in the village.
"There wasn't going to be a 'Perry Mason' moment where all of a sudden he admitted everything when I confronted him with the evidence," Maj. Groharing says.
Both the prosecutor and the defense attorney tried various feints to distract the elder. "We did talk to some folks on the side without him, but we also didn't want to upset the apple cart," Maj. Groharing says. "We wouldn't be doing a very good job of winning hearts and minds" by offending the local establishment.
The Americans examined the new compound, which had been built over the rubble of the previous buildings, noting a few reused bricks with bullet holes and spotting the shrapnel-damaged green metal gate, leaning unused against the compound's mud wall. After about three frustrating hours, they gave up and returned to Khost, Maj. Groharing says.
Their last stop was Jalalabad, a southern Afghan city where Ahmed Khadr ran an organization called Health and Education Project International. The U.S. says it was a front for financing al Qaeda. Col. Vokey wanted to interview the organization's current director.
Narrow streets and congested traffic made it impossible for their Humvees to maneuver, forcing the uniformed U.S. lawyers to walk the last few blocks. As they approached, explosions went off, Maj. Groharing recalls. Arriving at the address, they found a crowd watching the entire city block in flames.
"We were looking at the map and the grid coordinates and, no kidding, it's the place Col. Vokey wanted to see," Maj. Groharing says. The two lawyers, fearing for their safety, quickly left the scene.
The case against Mr. Khadr is now one of many held up by the Supreme Court's decision to strike down the Bush administration's original commission plan. Maj. Groharing says he expects to refile charges after the Pentagon draws up rules and procedures implementing the new system of military commissions, which be completed as soon as January. The Bush administration, meanwhile, plans to build a courtroom complex at Guantanamo by July 2007 at a cost of up to $125 million.
But lawmakers of both parties have questioned the courtroom project, and the ultimate fate of military commission trials remains unclear. Last week a federal judge found Guantanamo prisoners had no right to challenge the Military Commissions Act, but the outgoing and incoming chairmen of the Senate Judiciary Committee, Sens. Arlen Specter (R., Pa.) and Patrick Leahy (D., Vt.), have said they plan to revisit the legislation.
First Published December 18, 2006 12:00 am