Khadr under rubble during attack, lawyer says

GUANTANAMO BAY, CUBA  Omar Khadr could not have possibly thrown the grenade that killed a U.S. soldier during a 2002 firefight because he was buried under the rubble of a collapsed roof, his lawyer argued in court Friday, pointing to photos from the firefight that show Mr. Khadr under so much debris that a U.S. soldier inadvertently stepped on him.

But Colonel Patrick Parrish, the judge in Mr. Khadr's Guantanamo Bay military commissions hearing, banned Lieutenant-Commander Bill Kuebler from showing the photos in court, meaning the public did not get to see them.

“I don't want things shown that may not be admitted [as evidence],” Col. Parrish told a clearly exasperated Cdr. Kuebler, who tried for several minutes to change the judge's mind.

Asked afterward why the judge didn't allow him to show the photos, Cdr. Kuebler told reporters: “Because they show he's innocent.”

In a rare occurrence, the chief and deputy chief of the defence staff at Guantanamo joined Cdr. Kuebler at a press conference after the court session to blast the judge's decision.

Mr. Khadr, the only Canadian citizen and Westerner detained in Guantanamo Bay, is facing several charges before a military commissions court here. The most serious is that he killed a U.S. soldier during a 2002 Afghanistan firefight. Mr. Khadr was 15 at the time, and is 22 now.

The U.S. government alleges Mr. Khadr threw a grenade during the fight that killed the soldier. A U.S. soldier present during the firefight previously testified that he saw Mr. Khadr sitting upright, facing away from him in such a position that he could have thrown the grenade over his shoulder. The soldier then shot Mr. Khadr twice in the back.

Asked how a soldier could shoot Mr. Khadr in the back if the Canadian was buried under rubble, Cdr. Kuebler could not say with certainty. He offered a number of possible explanations: that some of the bullets fired at other militants in the compound could ricochet through the rubble or that the soldier uncovered Mr. Khadr and then shot him twice while he lay there. Cdr. Kuebler was careful not to commit to either scenario.

Cdr. Kuebler argued in court Friday afternoon for the production of a witness – “Soldier No. 2” – who the lawyer said will present a different account of events than the one given so far, in which Mr. Khadr is found not sitting up, but buried under the rubble of a recently collapsed roof . (The U.S. military bombed the compound Mr. Khadr was staying in before the soldiers moved in.)

“Soldier No. 2 will establish the [other version of events] is false,” Cdr. Kuebler told the court.

The defence lawyer had planned to show to the entire court, which included myriad reporters and other observers, photos that he believes support this account, including one where Mr. Khadr is clearly buried beneath the rubble.

Captain Keith Petty, one of the prosecution lawyers, told reporters that the defence has had access to the photos for more than a year.

“These pictures are no surprise to anyone,” he said.

Prosecution lawyers argued against most of the half-dozen or so defence requests to compel various witnesses, saying that in many cases, as with Soldier No. 2, the defence had not even previously interviewed the witnesses, but were predicting what the witnesses would say based on the content of previous law-enforcement interviews with them.

The defence is also asking for the introduction of other witnesses, including a soldier who the defence believes will testify that he heard rapid bursts of gunfire after the “all clear” was called in the compound.

Another is expected to testify that U.S. soldiers were throwing grenades at the same time, raising the possibility of friendly fire.

If convicted of the most serious charge against him, Mr. Khadr faces a maximum sentence of life in prison.