GUANTANAMO BAY, CUBA — Defense attorneys for terrorism suspect Omar Khadr said Thursday that they learned this week that there was an eyewitness whose testimony could exonerate Khadr of war crimes for his alleged role in an attack on U.S. soldiers.
The prosecution has known about the witness since shortly after the July 2002 firefight in Afghanistan that killed a U.S. medic and left Khadr in the custody of U.S. forces, defenders said.
Khadr has been at Guantanamo since November 2002. He was charged in February with murder, attempted murder, conspiracy, spying and providing material support for terrorism.
The disclosure raised fresh concerns among detainee defense attorneys and human rights advocates about the military commissions set up to try terrorism suspects here.
Khadr's chief defense lawyer, Navy Lt. Cmdr. William C. Kuebler, told journalists after his client's arraignment that the witness' information had been classified by the government and kept from Khadr's attorneys for the last five years. Even after learning of it Tuesday, Kuebler was prohibited from disclosing many details, even to his 21-year-old client.
The "potentially exculpatory evidence" relates to whether Khadr, then 15, was a "lawful enemy combatant" when U.S. forces attacked a compound where he was holed up with Taliban and Al Qaeda fighters. Khadr was wounded and captured.
The military commissions created by Congress last year were established to try "unlawful enemy combatants," meaning people who had no right, according to commission rules, to be taking part in a conflict.
The commissions brand the Taliban, Al Qaeda and "associated forces" as unlawful combatants, but defer to Geneva Convention definitions on who is considered a lawful combatant.
Lawful combatants include members of an enemy country's armed forces, captured soldiers entitled to prisoner-of-war protections, or those meeting four conditions for "irregulars": that they are under the command of a recognized leader, wear a uniform or insignia recognizable at a distance, carry arms openly and conduct operations in accordance with the laws and customs of war.
Guantanamo detainees were subjected to Combatant Status Review Tribunals three years ago to determine whether they were enemy combatants. But the military commissions rules written by Congress last year required that status reviews specify whether each detainee was fighting lawfully or unlawfully, a distinction not addressed during the previous status hearings.
