US Military Attorney Accuses US Government Of Manufacturing Evidence

A US military attorney representing a suspect charged with murder has accused the US government of manufacturing evidence against his client.

Omar Khdar, 21 [photo], was captured in Afghanistan in 2002, allegedly during a battle against American forces. He has been held at Guantanamo Bay ever since, and he is now accused of murder. The US claims Khadr threw a grenade that caused the death of an American medic, Sgt. Christopher J. Speer.

Khadr's case is significant in a number of ways. Fabrication of evidence is the easiest to describe, but may not be the most alarming.

Khadr's attorney, Lt. Cmdr. William Kuebler, says that on the day after the battle in which Sgt. Speer was killed, an American commander identified only as "Lieutenant Colonel W" wrote a report which said an American soldier had killed a man identified as the suspect in the slaying of Sgt. Speer.

But months later, according to Kuebler, a revised version of Lieutenant Colonel W's report was issued, bearing the same date as the original. In the revised version, the suspect had no longer been "killed", but merely "engaged".

Kuebler says the new report was presented to him by prosecutors, who told him it was an "updated" document. Obviously, if the man who killed Sgt. Speer is already dead, then Oman Khadr cannot possibly be guilty of that crime -- if indeed it was a crime.

Prosecutors did not dispute Kuebler's version of events, nor did they respond to a request for comment.

I wouldn't comment either, if I were in their shoes. But then I would never be in their shoes in the first place.

Not long ago, while discussing Bush's veto of a bill that would have restricted the CIA's use of torture, I mentioned professor Mark Denbeaux of Seton Hall Law School, who has been leading a team of law students through an examination of unclassified documents describing the detainees at Guantanamo Bay. The method used by Denbeaux's team is worthy of notice, in my opinion. They have taken a mass of documents from the Department of Defense, and put together a database representing the information in those documents.

They haven't questioned the veracity of any of these documents; instead they have used the documents themselves to confirm or deny the official pronouncements we've been hearing. And the results are not flattering to the official pronouncements.

One of the studies performed by Denbeaux's team looked at the claim -- made dozens of times by various government officials -- that "terrorists" who had been released from captivity at Guantanamo had "returned to the battlefield" and resumed "shooting at Americans". They studied unclassified summaries of the evidence against more than 500 detainees and found some very disturbing facts.

Only 5% of the detainees had been captured by American forces. Only 4% of the detainees were accused of having been on a battlefield, ever! And out of 516 unclassified summaries, only one so much as alleged that a detainee was captured by United States forces on a battlefield.

This, of course, is exactly the allegation laid out against Omar Khadr. He's "the worst of the worst". And the evidence against him is fabricated.

Or perhaps to be fair I should rephrase that. Omar Khadr's attorney, who works for the American government and who surely must be feeling the same pressure to obtain convictions that the prosecution feels, nonetheless stands up for his client and alleges that the evidence against him was fabricated. And the prosecution doesn't dispute the charge. What does that tell you?

Chris Floyd has recently written about the case of Abdul Hamid Al-Ghizzawi,

who was forced to flee from his home by American bombing raids in the early days of the attack on Afghanistan, and was then sold to American forces by local bounty hunters in December 2001. He has never been charged with any crime; indeed, one of Bush's own military panels declared that Al-Ghizzawi was not an "enemy combatant." One of the officers on the panel testified, under oath, that the evidence against the purchased prisoner was "garbage."

Chris asks:

Why was Al-Ghizzawi not freed long ago, when it was first determined that he was not an "enemy combatant," and therefore, even under the ludicrous legal theories of the Bush gulag, should not have been subject to indefinite detention without charge or trial?

He points to the answer, too:

Perhaps a clue can be found in the words of one of the minions most directly responsible for imposing Bush's perverse lust for torture: William J. Haynes II, the general counsel of the Defense Department. At Harper's, Scott Horton references the accounts given by Col. Morris Davis, the former chief military prosecutor in Guantánamo, of his conversations with Haynes. As noted in the Nation:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.’”

"If we've been holding these guys for so long, how can we explain letting them get off?" This has been the crux of the matter for a long time concerning the many prisoners in Guantanamo who are innocent of any wrong-doing. (And it should be noted that all of the prisoners at Guantanamo are being held under an illegal and unjust system, backed up by force and torture -- a system that is a complete repudiation of the "civilized values" that the Terror War purports to defend.) What indeed can the Bush Regime -- and its willing executioners in Congress, including the Democratic "opposition," who have done nothing to shut down this shameful enterprise -- do with all these innocent people they've held captive for so long? It would be too embarrassing to admit that their incarceration was a mistake -- much less the crime that it undoubtedly is. And while some prisoners have been released from time to time -- usually under a cloud, often rendered into custody elsewhere -- it is clear that the Bush Regime's Gitmo endgame strategy is simple: put some of the captives on trial in the kangaroo court of rigged "military tribunals, and leave others, like Al-Ghizzawi, to rot and die in darkness, in silence, forgotten by the world.

That's exactly right, in my opinion. The decision, for people like Haynes, comes down to a simple comparison: What's worse: for innocent men to spend their entire lives in captivity? Or for us to be embarrassed?

The really strange part is how much they don't mind embarrassing themselves. Omar Khadr was captured when he was 15 years old. According to international law, he is supposed to be treated as a child soldier -- decommissioned and rehabilitated and reintegrated into civilian life. But the Bush administration sees more value in trashing international law than in obeying it, so there will be no rehabilitation for Omar Khadr, as far as the US is concerned. They simply want him for murder -- even for a murder he didn't commit.

As Scott Horton points out, the pressure to try and convict Omar Khadr is tremendous. As the Washington Post noted:

Senior defense officials discussed in a September 2006 meeting the "strategic political value" of putting some prominent detainees on trial, said Air Force Col. Morris Davis. He said that he felt pressure to pursue cases that were deemed "sexy" over those that prosecutors believed were the most solid or were ready to go.

"Sexy"? What could be "sexier" than a murder trial conducted by a "system of justice" so rigged that even though no trial has even begun, four prosecutors have already resigned rather than participate in such a travesty?

Perhaps we will learn more about this case in the coming days. Because Omar Khadr is a Canadian citizen, the Canadian press has taken much more interest in his story than they otherwise would have, and Khadr's lawyers have just been granted access to some important bits of evidence, including permission to interview the Lt. Col. who altered the report about Sgt. Speer's death.

Certain additional information has come to light as well, perhaps accidentally:

The Guantanamo judge also ruled that the prosecution must provide to the defence a list of all personnel who interrogated Mr. Khadr. If the defence wishes to interview any of those personnel, the judge ruled, the prosecution must provide phone numbers and times for such interviews.

One of those interrogators, it was revealed by mistake, was Sergeant Joshua Claus, a U.S. soldier involved in a case of torture in Afghanistan that left one prisoner dead.

Sgt. Claus's name was not supposed to be revealed, but the judge accidentally said the soldier's last name in court on Thursday. Because Sgt. Clause is believed to have been the interrogator present at virtually all Mr. Khadr's interrogations while he was held in Bagram base in Afghanistan, defence lawyers say the likelihood that Mr. Khadr was also tortured is high.

Sgt. Clause was one of 15 U.S. soldiers who faced charges after a young man, believed to be an innocent taxi driver, was brutally beaten and later found dead. Sgt. Clause eventually pleaded guilty and was sentenced to five months in prison.

Ah, yes. The United States of Torture. Welcome to The Dark Side.